Oates Bros., Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1962

135 N.L.R.B. 1295 (N.L.R.B. 1962)

OATES BROS., INC. 1295
Since the evidence reveals that employees were coerced into signing District 50
cards-the cards were signed under circumstances indicating union membership
and initiation and dues payments were required as a condition of employment-
the remedy of reimbursement of all moneys paid by the employees to the Respond-
ent Unions appears applicable and is recommended herein
CONCLUSIONS OF LAW
In summary I find-
1. The evidence adduced in this proceeding satisfies the Board's requirements for
the assertion of jurisdiction herein.
2. United Mine Workers of America, District 50, and its Local Union No. 14693
and United Brotherhood of Carpenters and Joiners of America, Local 2274, AFL-
CIO, are labor organizations within the meaning of Section 2(5) of the Act.
3. The evidence adduced establishes that Respondent Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(1),
(2), and (3) of the Act.
4. The evidence adduced establishes that Respondent Unions have engaged in
and are engaging in unfair labor practices within the meaning of Section 8(b) (I) (A)
and (2 ) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Oates Bros., Inc. and Truck Drivers Union No. 677, International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, Ind. Case No. 2-CA-7808. February 27,
1962
DECISION AND ORDER
On August 3, 1961, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief. The Re-
spondent thereupon filed a reply brief.
The Board I has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
this proceeding, and hereby adopts the findings,2 conclusions, and
recommendations of the Trial Examiner with the following additions :
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman McCulloch and Members Rodgers and Leedom]
2In the absence of exceptions, Member Rodgers adopts the Trial Examiner ' s jurisdic-
tional findings , and also the findings that the strike which commenced on or about
October 28 , 1959 , became an unfair labor practice strike on September 23, 1900
Moreover , Member Rodgers would not go beyond the Trial Examiner's findings in this
case and would not therefore find that the Respondent misrepresented to the Union its
financial status and the status of its business operations, or that the Respondent un-
lawfully insisted that the appointment of a shop steward be subject to Respondent's
approval . He would therefore limit the Order herein accordingly
135 NLRB No. 129.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel alleged that Respondent had unlawfully re-
fused to bargain with the Union, the statutory representative of Re-
spondent's employees, by : (a) refusing to meet and confer with the
Union at reasonable times and intervals for the purpose of negotiating
;a, collective-bargaining agreement; (b) failing and refusing to fur-
nish information requested by the Union; (c) misrepresenting to the
Union its financial status and the status of its business operations; and
1(d) insisting that the appointment of a shop steward be subject to
Respondent's approval. The Trial Examiner found that Respondent
had violated Section 8(a) (5) by (a) aiid (b), above, but did not
decide whether Respondent had also violated Section 8(a) (5) by the
conduct alleged in (c) and (d).3 The General Counsel excepted to
this failure to find.
During the course of collective-bargaining contract negotiations,
Respondent made certain misrepresentations to the Union as to the
;status of its business. At the first bargaining session, Respondent told
the Union that it had neither employees nor customers and required
no contract. At a subsequent meeting Respondent rejected one of the
lUnion's contract proposals, stating that it was not then operating. In
-fact, during the entire bargaining period, Respondent had eight em-
ployees and was operating with a minimum of nine trucks. The pur-
pose of these misrepresentations could only have been to dissuade the
Union from continuing negotiations and thus to frustrate collective
,bargaining. Accordingly, we find that these misrepresentations are
.additional evidence that Respondent did not bargain in good faith
with the Union.
At the firstbargaining session, the Union submitted a proposed con-
tract which provided, inter alia, that union stewards shall be selected
from among regular employees of Respondent whenever possible;
"however, if the Union is unable to designate the Steward from the
-regular employees of the Employer, the Union may designate one of
its other members to act as Steward. The Steward shall be the last
,employee to be laid off irrespective of seniority." Respondent rejected
this steward clause and proposed in its stead :
The Company recognizes the right of the Union, subject to COM-
PANY approval, to designate a steward .. .
The steward, subject to COMPANY approval, shall be selected
from among the regular employees of the company whenever
possible; however, if the Union is unable in conjunction with the
COMPANY to designate a steward from the regular employees
of the COMPANY the UNION many, subject to the approval of
the COMPANY designate one of its other members to act as
steward. [Emphasis supplied.]
3 The Trial Examiner found, and we agree , that Respondent did not unlawfully with-
hold certain "drop spot" information . This information was furnished , although belatedly.
OATES BROS., INC. 1297
The Union refused to accept this counterproposal but did offer to
limit the appointment of stewards to employees of Respondent. Re-
spondent rejected this offer, still insisting that the selection of a stew-
ard be subject to its approval. At no time did any of Respondent's
counterproposals contain a provision for superseniority to stewards
in making layoffs.
It is well established that, in the absence of special circumstances,
an employer does not have a right of choice either affirmative or
negative as to who is to represent employees for any of the purposes
of collective bargaining.4 This is true even where the designated
representative is a nonemployee of the company with which bargain-
ing is being conducted .5 Respondent attempts to justify its insistence
upon a veto power over the selection of a union steward by the argu-
ment that, in view of the Union's demand for superseniority for the
steward, such power was necessary to insure that an adequate work
force was available in the event of a layoff. The validity of this
alleged justification is belied by the fact that in its counterproposals
Respondent never included a provision for steward superseniority,
although the same counterproposals made the appointment of a stew-
ard subject to its approval. Moreover, in its reply brief, Respondent
frankly concedes : "There is no question from the record that the
Respondent was concerned with the identity of a steward; that is, the
fact that he might be picked from some company other than Oates
Bros." If a steward were a nonemployee of Respondent, superseniority
would not be applicable and there could be no basis for possible con-
cern as to the work ability of the steward. It seems plain, therefore,
that there are no possible special circumstances which would justify
Respondent's insistence that the selection of a union steward be sub-
ject to its approval.
Accordingly, we find that by the following conduct Respondent
evidenced its failure to bargain in good faith, thereby violating Sec-
tion 8(a) (5) and (1) of the Act: (a) Refusing to meet and confer
with the Union at reasonable times and intervals for the purpose of
negotiating a collective-bargaining agreement; (b) failing and refus-
ing to furnish the Union with relevant information requested; (c)
misrepresenting to the Union its financial condition and the status of
its business; and (d) insisting that the appointment of a shop steward
be subject to its approval.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
4 E.g , N.L.R.B. v. Roscoe Skipper, Inc., 213 F. 2d 793 (C .A., 5)'; N.L R B . v. Deena
Artware, Inc , 198 F. 2d 76 (C.A. 6), cert. denied 345 U.S. 906 ; N.L.R.B . v. Kentucky
Utilities Company, 182 F. 2d 810 (C.A. 6).
a N.L.R B. v. Deena Artware, Inc., supra ; N.L.R.B . v. Kentucky Utilities Co., supra.
634449-62-vol. 135-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Oates Bros., Inc.,
Shelton, Connecticut, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Truck Drivers Union
No. 677, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind., as the exclusive representa-
tive of all its regular and regular part-time over-the-road and local
chauffeurs or truckdrivers, including warehouse and maintenance em-
ployees and helpers, but excluding office clerical employees, executives,
watchmen, and supervisors as denied in the Act, with respect to rates
of pay, wages, hours of employment, and other terms and conditions
of employment by : (1) refusing to meet and confer with the Union
at reasonable times and intervals for the purpose of negotiating a
collective-bargaining agreement; (2) failing and refusing to furnish
the Union with relevant information requested, including names,
classifications, hiring dates, and rates of pay of the employees in the
appropriate unit; (3) misrepresenting to the Union its financial con-
dition and the status of its business; and (4) insisting that the ap-
pointment of a shop steward be subject to its approval.
(b) In any like or related manner interfering with the efforts of
the above-named Union to bargain on behalf of the employees in the
aforesaid appropriate unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Truck Drivers Union
No. 677, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind., as the exclusive representa-
tive of the employees in the appropriate unit, as found above, and,
if an understanding is reached, embody such understanding in a
signed agreement.
(b) Upon application, offer immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to all those employees
who were on strike and who had not been permanently replaced prior
to September 23, 1960, dismissing if necessary any persons hired on
and after September 23, 1960; and place upon a preferential hiring
list such strikers for whom no employment is immediately available,
with priority to be determined among them by such system of sen-
iority or other nondiscriminatory practices as heretofore applied, and
thereafter offer, in accordance with such list, reinstatement as posi-
tions become available; and make whole such applicants for any loss
of pay suffered by reason of the Respondent's refusal, if any, to rein-
state them, upon request, by payment to each of them of a sum :of
money equal to that which he normally would have earned as wages
during the period from 5 days after the date on which he applied for
OATES BROS., INC. 1299
reinstatement to the date of the Respondent's offer of reinstatement,
such loss to be computed in the manner set forth in F. W. Woolrworth
Company, 90 NLRB 289.6
(c) Post at its offices and place of business in Shelton, Connecticut,
copies of the notice attached hereto marked "Appendix."' Copies•
of said notice, to be furnished by the Regional Director for the Second
Region, shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all 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 the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith. "
9 See Morris Fishman & Sons, Inc., 122 NLRB 1436, enfd 278 F. 2d 792 (C.A. 3).
7 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with Truck Driv-
ers Union No. 677, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Inc., as the
exclusive representative of all employees in the bargaining unit
described below, with respect to rates of pay, wages, hours of
employment, or other terms and conditions of employment, and
we will embody in a signed contract any understanding that is
reached. The bargaining unit is :
All regular and regular -part-time over-the-road and local
chauffeurs and truckdrivers employed at our establishment
in Shelton, Connecticut, including warehouse and mainte-
nance employees and helpers but excluding office clerical
employees, executives, watchmen, and supervisors as defined
in the Act.
WE WILL, upon application, offer immediate and full reinstate
ment to their former or substantially equivalent positions, with-
out"prejudice,to their seniority and other rights and privileges, to
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all employees who were on strike and who had not been perma-
nently replaced prior to September 23, 1960, dismissing if neces-
sary any persons hired on and after September 23, 1960; and we
will place upon a preferential hiring list such strikers for whom
no employment is immediately available, with priority to be de-
termined among them by such system of seniority or other non-
discriminatory practices as heretofore applied, and thereafter
offer, in accordance with such list, reinstatement as positions
become available. We will also make whole such applicants for
any loss of pay suffered by reason of our refusal, if any, to rein-
state them, upon request, by payment to each of them of a sum
of money equal to that which he normally would have earned
as wages during the period from 5 days after the date on
which he applied for reinstatement to the date of our offer of
reinstatement.
WE WILL NOT in any like or related manner interfere with the
efforts of the above-named Union to bargain in behalf of the
employees in the above-described appropriate unit.
OATES BROS., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York, New York, Telephone Number
Plaza 1-5500, if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed February 14, 1961, by Truck Drivers Union No. 677, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Ind., herein called the Union , and duly served on Oates Bros., Inc., herein
called the Respondent or the Employer, the General Counsel of the National Labor
Relations Board, herein called the General Counsel and the Board , issued a com-
plaint on behalf of the Regional Director for the Board's Second Region (New
York City), alleging that Respondent had commited unfair labor practices in viola-
tion of Section 8(a)(1) and ( 5) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act.
The complaint alleges that from on or about August 15, 1960, Respondent refused
to bargain with the Union as the duly designated bargaining representative of Re-
spondent's employees in an appropriate unit by ( a) insisting that the appointment of
a shop steward be subject to Respondent 's approval ; (b) refusing to meet and con-
fer with the Union at reasonable times and intervals for the purpose of negotiating
a collective-bargaining agreement ; (c) misrepresenting to the Union its financial
status and the status of its business operations ; and (d ) failing and refusing to fur-
nish information requested by the Union . The complaint also alleged that a strike
which started on or about October 27, 1959 , was prolonged by Respondent 's unfair
labor practices. In its answer Respondent denied the commission of any unfair
labor practices.
OATES BROS., INC. 1301
Pursuant to due notice a hearing was held before Trial Examiner Eugene E.
Dixon at Shelton, Connecticut, June 19 to 21, 1961. The parties were represented
by counsel and were afforded opportunity to present evidence, examine and cross-
examine witnesses, make oral argument, and file briefs and proposed findings of
fact and conclusions of law. Oral arguments were made by both the Respondent
and the General Counsel who both waived the privilege of filing briefs.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein, a corporation duly
organized under and existing by virtue of the laws of the State of Connecticut. At
all times material herein, Respondent has maintained its principal office and place
of business in the city of Shelton, Connecticut, where it is and has been continuously
engaged in providing and performing interstate trucking services and related services
as a common carrier. During the year ending December 31, 1959, Respondent, in
the course and conduct of its trucking operations, derived gross revenues therefrom
in excess of $400,000 which revenues were derived from its interstate operations
between and among the State of Connecticut and other States of the United States.
Notwithstanding Respondent's contention to the contrary I find that Respondent is
and has been at all times material herein an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers Union No. 677, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Ind., is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On September 29, 1959, the Union filed with the Board a petition for certifica-
tion as the collective-bargaining agent of Respondent's employees in a unit com-
prised of all regular and regular part-time over-the-road and local chauffeurs or
truckdrivers employed at the Employer's establishment in Shelton, Connecticut, in-
cluding warehouse and maintenance employees and helpers but excluding office
clerical employees, executives, watchmen, and all supervisors as defined in the Act 2
On or about October 28, 1959, because Respondent would not relinquish its right
to the more formal election procedure and enter into an agreement for an immedi-
ate consent election, the employees went out on strike which was still in progress at
the time of the hearing herein. On May 31 and on July 21, 1960, charges and
amended charges of unfair labor practices were filed by the Union against
Respondent.
On July 13, 1960, the Board certified the Union as the bargaining agent of the
employees in the aforesaid unit. On July 11 (the election already having taken
place) the Union wrote Respondent requesting the beginning of negotiations and
suggesting any convenient date during the ensuing week for the first meeting. On
July 18 the Company replied with the information that its attorney would handle
its negotiations and that he would be "out of town until after August 1st." On
July 25 the Union wrote the Company as follows:
Teamsters Local Union No. 677, hereby demands the following information
which is necessary in order to expedite contract negotiations:
1. A list with the name, classification, hourly rate of pay or trip rates
and original hiring date or seniority date of each employee in the bargain-
ing unit, prior to 10/26/59.
2. A copy of the health and welfare insurance plan, if any, covering
each employee in the bargaining unit, prior to 10/26/59.
1 During the year 1960, Respondent's operations were curtailed as a result of a strike of
Respondent's employees. That this strike may have reduced Respondent's 1960 operating
revenues below that figure set by the Board for taking jurisdiction does not preclude the
finding of jurisdiction here based on its 1959 business. Union Tas'i Corporation, 130
NLRB 814
2 The specific wording of the unit description in the petition varied somewhat (but not
In substance) from that described in the Board's certification.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A copy of the pension plan or pension agreement, if any, covering
each employee in the bargaining unit, prior to 10/26/59.
On August 23, 1960, the General Counsel issued a complaint against Respond-
ent alleging violations of Section 8(a)(1) and (3) of the Act in connection with
the discriminatory granting of Christmas bonuses. This case was disposed by a
formal settlement stipulation dated September 23, 1960. In this auspicious setting
let us examine the bargaining relationship between the parties.
From the first bargaining meeting on August 5, 1960, to the last on March 17,
1961, a total of 11 meetings took place ranging in duration from 2 to 51/z hours.
Almost from the beginning the Union complained to the Company that it was
acting unreasonably in the long lapses the Company was insisting upon between
meetings. Thus, at the end of the August 12 meeting the Union objected to the
Company's suggestion of August 26 for the next meeting. The Company thereupon
agreed to meet on August 23 on which date the parties met for 51/a hours. The
next meeting took place on August 26 at the end of which September 14 was set as
the next meeting date. There is no evidence that the Union objected to this 19-day
interim. Apparently this was because of the impending vacation of James Galullo,
one of the Union's officials and the principal negotiator for the Union.
Under a covering letter dated September 7 the Company sent the Union a
counterproposal. This document contained two appendixes. Schedule A thereof
provided for four classifications with wage rates and trip rates as follows:
Classification Hourly rate Trip rate
a. Beginner ------------------------------------ $2. 00 $25. 00
b. Driver Second Grade------------------------- 2.20 28.50
c. Driver First Grade--------------------------- 2.25 29.50
d. Helper ------------------------------------- 1.80 -----
Schedule B contained a copy of the Respondent's group accident, health, and hos-
pitalization insurance plan for its employees. On or about Sepember 12 or 14
Timothy Collins (secretary-treasurer of the Union and one of the three union
officials having any connection with the negotiations) 3 asked the Company to
postpone the September 14 meeting because he "hadn't had time to study the pro-
posal." Accordingly, September 23 was agreed to as the next meeting date. Busi-
ness Representative Galullo attended this meeting having by then returned from his
vacation.
At this meeting Galullo told the Company that the Union had not yet received the
information it had requested in its July 25 letter. The Company by one of the
Oates brothers expressed surprise and indicated it would be mailed to the Union "in
a couple of days." Donahue, Respondent's counsel, said, "The information that you
are requesting is covered in the Company's proposal . . . with the exceptions of
those items covered in item one," and further pointed out that the Company had
no pension plan as of October 26, 1959. Collins, who was also representing the
Union at this meeting, asked the Company for "a list of all the shippers, consignees,
where the Company drops boxes" 4 and asked if that information could not be
included with the other material which the Company had promised to mail shortly.
John Oates said that that information would "take a little longer to prepare."
At the end of the September 23 meeting, Donahue indicated that he could not
meet again until October 7 due to court commitments. The Union's objection to so
late a date was unavailing. At the end of the October 7 meeting, the Union again
objected "very strenuously" to Donahue's inability to meet before October 28.
Galullo stated that the Union was ready to meet 7 days a week, 24 hours a day until
they "hammered out an agreement." But the Company remained unmoved and the
October 28 date stood, more or less on a take-it-or-leave-it basis. Similar fruitless
objections were voiced by the Union in the setting of November 18 for the meeting
to follow the October 28 meeting and in the setting of December 16 as the date
following the November 18 meeting.
At the December 16 meeting, Galullo again reminded the Company that it had
not supplied the information covered by item 1 of the Union's request of July 25
8In addition to Business Representative Galullo who was the one chiefly concerned with
the negotiations and conducted most of them singlehanded there were Collins and another
business representative named Walter Dinkoski who attended some of the bargaining
sessions.
This was Galullo's testimony. Respondent's version was that the Union had requested
information showing the places where the Company "had ever dropped trailers or left
trucks." As will appear , I deem It immaterial which version Is correct.
OATES BROS., INC. 1303
nor had it supplied the material that had been requested by Collins in the Septem-
ber 23 meeting.
The date set for the meeting to follow the December 16 meeting was January 20.
This was the date agreed upon when it was learned that Federal Mediator Callahan
was to be on a 3- or 4-week vacation and Respondent insisted on his being present at
the next meeting.5 The January 20 meeting was called off on account of a snow-
storm. The next meeting was set for February 10 by the arrangement of the State
mediator. In that meeting Donahue indicated that his courtwork would prevent
his meeting again until March 24. When the Union vehemently objected, one of the
Oates brothers said, "If you want a meeting, that's it. Take it or leave it."
On February 14 the Union filed refusal-to-bargain charges with the Board. On
February 25 Donahue wrote the Federal conciliator saying that his courtwork had
cleared up to such an extent that he would be able to meet on March 3. Because the
Union was unable to meet on that date March 17 was set for the next meeting.
At the March 17 meeting Respondent supplied the Union with a list of employees
showing the year and month that they were hired. When Galullo pointed out that
this did not show the individual classifications, Donahue said, "Well, we will send
that to you later." It was also in this meeting that Galullo pointed out to the
Company "that unless they had something different to offer, that in view of their
attitude in negotiations, and at this particular meeting [he] felt that there was no
point in meeting any further, unless they had something new to offer." With this
the meeting ended and no further negotiations took place.
Under a covering letter of April 3, 1961, the Company sent to the Union a list
of employees showing their classifications and referring to the corresponding wage
and trip rates contained for those classifications in the Company's counterproposal
of September 7, 1960. Also transmitted in the same letter was a list of some 49
locations of "trailer drop spots" requested by Collins on September 23, 1960.
On the foregoing evidence I conclude and find that on at least two of the four
counts alleged by the General Counsel ((a) the failure to meet at reasonable times
or intervals, and (b) the failure to supply requested information) Respondent has
refused to bargain with the Union within the meaning of Section 8(a)(5) and 8(d)
of the Act.6
As to (a) above, while I am sure that an employer is not required to ignore all
other business obligations for the purpose of meeting and negotiating with the
collective-bargaining agent of his employees, I am equally sure that he must make a
reasonable effort to accommodate his other interests to his statutory duty "to meet
at reasonable times" for such a purpose. In my opinion, the evidence here, particu-
larly from September 23, shows an ever-increasing disregard by Respondent for this
statutory obligation. Thus we find Respondent lengthening the gap between meet-
ings from 14 days to 21 days to 28 days and finally to 45 days in the meeting schedules
for March 24.7 It is difficult to see how this conduct can be said to have been in-
tended to result in effective or valid collective bargaining .8 Cf. Cummer-Graham
5 The Union had brought the Federal mediator into the negotiations from the start.
Either he or the State mediator, Phillip Koons, had attended all the meetings except the
one on September 23 which Callahan missed
Section 8(a) (5) of the Act provides that:
It shall be an unfair labor practice for an employer- . . . to refuse to bargain
collectively with the representatives of his employees .. . .
Section 8(d) of the Act provides in part:
For the purposes of this section, to bargain collectively is the performance of the
mutual obligation of the employer and the representative of the employees to meet
at reasonable times and confer in good faith with respect to wages, hours, and other
terms and conditions of employment . . . .
It is true that Respondent subsequently offered to cut this 45-day gap to 21 days.
However, it is possible that the filing of a refusal-to-bargain charge in the interim may
have played some part in this offer
8 In reaching the conclusion I do, I am cognizant of the fact that early in the bargain-
ing relationship the Union itself was responsible for almost a month's lapse in negotia-
tions with little or no justification My reaction to this is that the employees were en-
titled to diligence on the part of their bargaining representative and any deficiencies in
that connection certainly would not excuse or justify any failure on the part of Respond-
ent to comply with its statutory obligations. In any event, during the last 6 months
of the negotiations the Union appeared to be prosecuting its bargaining
conscientiously.
function
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company,' 122 NLRB 1044, 1069; Gagnon Plating and Manufacturing Company,
97 NLRB 104, 107.
Further indication of Respondent's failure to bargain in good faith is the matter
covered by (b) above. There is no doubt that the request for the names, classifica-
tions, hiring dates, and rates of pay of employees in the bargaining unit as well
as the drop-spot information 9 were valid and mandatory requests under the Act,
and that a failure to comply with such requests makes an employer a violator of
Section 8 (a) (5) of the Act. Oregon Coast Operators Association, et al., .113 NLRB
1338, 1345-1346. Here, by delaying until March 17 and April 3, 1961 (to the
point where negotiations broke down), to furnish information requested some 7 or
8 months previously, Respondent failed in its statutory duty. Reed & Prince Manu-
facturing Company, 96 NLRB 850, 858; Kohler Co., 128 NLRB 1062. In addition
to the delay in furnishing the above information (described in item 1 of the Union's
written request of July 25, 1960), the General Counsel claims another failure to
comply with that request in that the seniority list finally submitted did not give
exact hiring dates but only the month and year of hire. I agree with the General
Counsel and so find. However, I reject a similar contention by the General
Counsel as to the information furnished by Respondent regarding the drop spots.
In view of the foregoing I deem it unnecessary to decide whether by its insistence
on a voice in the appointment of the shop steward,19 and in its alleged misrepre-
sentation of its financial and business status (on which there is a conflict in the
evidence), Respondent demonstrated further indications of its refusal to bargain in
good faith.
Having found that Respondent failed to bargain as required by Section 8(a)(5)
and (1) of the Act, it follows, and I find, that the strike which was in progress when
negotiations began and continued throughout their course was continued and pro-
longed by Respondent's refusal to bargain and thus as of September 23, 196011
became an unfair labor practice strike.ia Maurice Embroidery Works, Inc., 111
NLRB 1143; The Kohler Co., supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with its business operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has refused to bargain collectively with the
Union as the exclusive representative of the employees in the appropriate unit.
I shall therefore recommend that Respondent, upon request, bargain collectively
with the Union as such representative and, in the event an understanding is reached,
embody such understanding in a signed agreement.
Having also found that the strike which commenced on or about October 28,
1959, was prolonged by Respondent's refusal to bargain and thus on September 23,
1960, became an unfair labor practice strike, I shall recommend that Respondent,
upon application, offer each striking employee who had not been permanently re-
placed prior to September 23, 1960, immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other rights
and privileges, dismissing if necessary any person hired on or after that date. If
after such dismissal, there are insufficient positions remaining, those strikers for
O The dropping of trailers was a subject matter of the Union's proposals and the
Company's counterproposals.
1o In its counterproposal Respondent proposed that the appointment of a steward be
"subject to company approval " In its evidence Respondent offered a plausible explana-
tion for this position
III use September 23 because I have found it was from that time on that Respondent
failed to meet at reasonable intervals and also because that date should have allowed
Respondent ample time to have supplied the information requested by the Union on July 25
11 This finding is required not only by what motivated the strike but by the many at-
tempts of Galullo during the negotiations to get Respondent to enter into an agreement
so as to get the men back to work
WINETT, INC. 1305
whom no employment is immediately available shall be placed upon a preferential
hiring list with priority determined among them by such system of seniority or other
nondiscriminatory practice as heretofore has been applied in the conduct of
Respondent 's business and thereafter , in accordance with such list, shall be offered
reinstatement as positions become available, and before other persons are hired
tor such work.
Upon the basis of the foregoing findings of fact , and upon the entire record
in the case , I make the following:
CONCLUSIONS OF LAW
1. Truck Drivers Union No. 677, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, Ind., is a labor organization within
the meaning of Section 2(5) of the Act.
2. Oates Bros., Inc., is an employer within the meaning of Section 2(2) of the
Act.
3. All regular and regular part-time over-the-road and local chauffeurs or truck-
drivers employed at Respondent's establishment in Shelton , Connecticut, including
warehouse and maintenance employees and helpers, but excluding office clerical em-
ployees, executives , watchmen , and all supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. On July 13, 1960 , and at all times thereafter the Union has been and now is
the exclusive representative of the employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing on September 23, 1960, and thereafter to bargain collectively
with the Union as the exclusive representative of its employees in the aforesaid
appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
6. By the aforesaid refusal to bargain, Respondent has interfered with, re-
strained , and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act and has thereby engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Winett, Inc. and K.C. Joint Board , International Ladies' Gar-
ment Workers' Union , AFL-CIO . Case No. 17-CA-1794. Feb-
ruary 27, 1962
DECISION AND ORDER
On November 14, 1961, Trial Examiner Earl S. Bellman issued his
Intermediate Report herein, finding that the Respondent had engaged
in unfair labor practices and recommending that it cease and desist
therefrom and take affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in other unfair labor practices alleged
in the complaint and recommended that such allegations be dismissed.
Thereafter the General Counsel and the Respondent filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three -member
panel [Chairman McCulloch and Members Fanning and Brown].
135 NLRB No. 130.