Ohio Car & Truck Leasing, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1964

149 N.L.R.B. 1423 (N.L.R.B. 1964)

OHIO CAR & TRUCK LEASING, INC. 1423
WE WILL NOT by refusing to bargain or in any like or similar manner interfere
with, restrain, or coerce our employees in the exercise of their right to self-
organization, to form, join, or assist the above-named Union or any other labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other 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 right may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
permitted by Section 8(a)(3) of the Act.
BURNETT CONSTRUCTION COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 609 Railway
Exchange Building, 17th and Champa Streets, Denver, Colorado, Telephone No. 297-
3551, if they have any questions concerning this notice or compliance with its
provisions.
Ohio Car & Truck Leasing , Inc. and General Truck Drivers
Local No. 92, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America . Case No.
8-CA-3375. December 8, 1964
DECISION AND ORDER
On July 16, 1964, Trial Examiner Robert ' E. Mullin issued his
Decision in the above-entitled proceeding, finding that 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 attached Decision. Respondent
filed exceptions to the Trial Examiner's Decision, 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 [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as noted below.'
'We agree with the Trial Examiner's conclusion that Treacy's suggestion to employee
Cirone that the men could secure a contract which would be better and easier to get along
with from the Respondent without the Teamsters constituted an unlawful unilateral
attempt by the Respondent to bypass the Union in dealing with Its employees. However,
we find it unnecessary to determine whether Sampson's remarks to Melott on or about
November 2, 1963, also constituted an unlawful attempt to bypass the Union.
149 NLRB No. 129.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER -
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Recommended
Order of the Trial Examiner, and orders that Respondent, its officers,
agents, successors , and assigns, shall take the action set forth in the
Recommended Order, with the following addition:
Renumber paragraph 1(b) as 1(c) and add as paragraph 1(b) the
following :
"(b) Effecting any change in the terms or conditions of employ-
ment of its employees in the appropriate unit without first giving
notice to and consulting with the statutory representative of its
employees."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on January 6, 1964, by General Truck Drivers Local No. 92,
International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, herein called Union, or Charging Party, the General Counsel of the National
Labor Relations Board , by the Regional Director for Region 8, Cleveland , Ohio, issued
his complaint, dated February 17, 1964 , against Ohio Car & Truck Leasing, Inc.,
herein called Company or Employer . With respect to the unfair labor practices, the
complaint sets forth the specific respects in which it is alleged that the Respondent
engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended , herein called the Act. In its answer,
duly filed, the Respondent conceded certain facts with respect to its business opera-
tions but denied all allegations that it had committed ' any unfair labor practices.
Pursuant to due notice , a hearing was held before Trial Examiner Robert E . Mullin,
at Canton , Ohio, on March 16 through 18 , 1964. All parties appeared at the hearing
and were given full opportunity to examine and cross -examine witnesses, to introduce
relevant evidence , to argue orally at the close of the hearing , and to file briefs. Oral
argument was presented by the General Counsel and the Respondent . The Charging
Party waived oral argument but, subsequent to the hearing, submitted a comprehen-
sive brief. No briefs were submitted by either the General Counsel or the
Respondent.'
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 THE RESPONDENT
The Respondent herein, an Ohio corporation , with its principal office in Canton,
Ohio , is engaged in the business of leasing motor vehicles to other business enterprises.
In the course and conduct of its operations , it has annually provided services in excess
of $100 ,000 in value to other business enterprises , of which services in excess of
$50,000 have been furnished to, among others, The Canton Provision Company,
which latter company annually receives in excess of $50 ,000 worth of goods and
materials directly from points outside the State of Ohio . Upon the foregoing facts,
the Respondent concedes and I find that Ohio Car & Truck Leasing , Inc., is engaged
in commerce within the meaning of the Act.
IT. THE LABOR ORGANIZATIONS INVOLVED
The Respondent concedes and I find that the Union is a labor organization
within the meaning of the Act.
' Subsequent to the hearing the General Counsel filed a motion to correct the transcript,
largely in connection with various citations appearing in his oral argument . All parties
having been served with a copy of the aforesaid motion and no objections having been
registered , the motion is granted and the record corrected in accordance therewith
OHIO CAR & TRUCK LEASING, INC. 1425
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence as to the alleged violations of Section 8(a) (5) and (1)
1. The appropriate unit
The General Counsel alleged and the Respondent conceded that all mechanics and
utility men and such other employees of the Respondent as ;are under the jurisdiction
of the Union , except, however , employees who are member:, of other labor unions,
until such employees shall be assigned to the jurisdiction of the Union , constitute a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act. The Respondent further conceded that for several years,
including all times material herein, the Union has been the representative for purposes
of collective bargaining of the employees in the unit described above.
It appears that the foregoing unit description has been arrived at as a result of
mutual understanding between the Employer and the Union , and, further , that this
unit has been the basis for contractual relations over a period of years. Under these
circumstances , the parties being in agreement as to the appropriateness of the unit and
there being no dispute as to the status of the Union as the majority representative of
the employees in such unit , I find that by virtue of Section 9(a) of the Act the
Union has been , and is now , the exclusive representative of all employees in the
aforesaid unit for the purpose of collective bargaining with respect to rates of pay,
wages, hours of employment , and other terms and conditions of employment.
2. Findings and conclusions with respect to the alleged refusal to bargain
a. Introduction
In 1961 the Union was certified by the Board as majority representative for the
mechanics and utility men at the Respondent 's shop. Thereafter the Union and the
Respondent entered into a collective -bargaining agreement which expired on Octo-
ber 31 , 1963. In October 1963, at the request of the Union, the parties had several
bargaining conferences as to the terms of a new agreement.
On November 4, 1963, in Case No. 8-CA-3333, the Union filed an unfair labor
practice charge, alleging that the Respondent had refused to bargain . On Novem-
ber 20 , the parties met again and reached agreement on the terms of a contract. The
Respondent specified , however , that it would not sign any such agreement until the
Union withdrew its unfair labor practice charge in Case No. 8-CA-3333 . The Union
executed the agreement on November 26. After making several changes in the
document which the Union had signed , and after receiving notice from the Regional
Director that the aforesaid charge had been withdrawn , the Respondent signed the
contract on December 20.
b. The evidence
On or about October 10, Robert E. Dawson , business agent for the Union , sent the
Respondent a proposed new contract . On or about October 15 , the parties met for
their first bargaining session . Present for the Union were Dawson and Frank
Cirone, the latter an employee of the Respondent and the Union's shop steward. The
Company was represented by William B. Treacy and Howard L. Sampson , president
and vice president , respectively , of the Respondent . After a general discussion of the
terms of the Union 's proposals , Treacy promised that he would consider the demands
and submit a counterproposal at the next meeting.
On October 29, the parties held a second meeting, this time with John H. Duffy, a
mediator from the Federal Mediation and Concilitation Service. The same repre-
sentatives appeared again for the Union . The Respondent was represented by Treacy,
Kenneth George, service manager, and Harvey Rector, labor relations consultant.
There was an extended consideration of the union proposals and the Company's
counterproposal . In a reference to impeding expiration of the current contract on the
following Thursday, October 31, Rector asked if the Union would agree to extend it
for an indefinite period of time. Dawson refused to do so. During this discussion,
Treacy interposed the comment that there was no need to consider an extension of
the contract beyond the following Thursday because the "business would be sold out
as of midnight on Thursday ." 2 Thereafter , the Union asked if the Company would
include a successorship clause in the contract which ' would . bind anyone to whom
Treacy sold the business with the collective -bargaining agreement then under negotia-
tion . The Respondent refused. At the hearing Rector stated that at the time in
s The quotation is from the credited , undenied testimony of Frank Cirone.
770-076-05-vol. 149-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question he advised Treacy that since he was in the process of selling his business the
Company should not sign any agreement with a successorship clause because this
might jeopardize a prospective sale. The Union requested that wages for the mechan-
ics be raised 10 cents an hour. The Company offered 5 cents. The Union also
demanded that the new contract provide 5 days of sick leave each year. This
request, however, was adamantly opposed by Treacy. Dawson and Cirone testified,
and their testimony was not contradicted, that at the conclusion of the meeting, wages
and sick leave were the only two issues on which no agreement had been reached.
The parties met again on Thursday, October 31, once more with Mediator Duffy
present. Treacy and Rector appeared for the Company. May Von Kaenal, office
manager for the Respondent, was also present during part of the conference. Dawson
and Cirone for the Union were accompanied by Herschel Kriger, counsel for Local 92.
At the outset of the meeting Duffy asked that Dawson state the issues to be resolved.
Dawson testified that at this time he told those present that agreement was needed only
on the question of wages and sick leave. Dawson's testimony as to this matter was
uncontradicted. It was also corroborated by Von Kaenal when she testified at the
hearing in the present case as a witness for the Respondent.
The Respondent refused to increase its offer of a 5-cent wage raise. The General
Counsel and the Charging Party alleged that Treacy told the parties at the bargaining
session that the Company could not afford to offer more. The Respondent denied this
contention. Most of the testimony as to this meeting centered on this issue.
Treacy testified that at the outset of the meeting Kriger asked him if he had already
sold the Company and that he told counsel for the Union that that information was
none of his business. There was a discussion of the Respondent's competition. Treacy
conceded that during the session he referred to his local competitors and the fact that
since they were unorganized their overhead was less than that of the Respondent.
He also conceded that during this phase of the meeting he referred to the fact that the
Company had borrowed more than a million dollars from a group of banks. Treacy
further testified, on cross-examination, that he told the union representatives that he
had made his wage offer and that if the employees did not want to work at that rate
they could find employment elsewhere.
Kriger testified that early in the meeting Treacy stated that he could not afford to
pay any higher wages because he was already paying more than his competitors.
Kriger further testified that after Treacy was asked about the reputed sale of the
business and had refused to disclose any information, he (Kriger) told him that the
Union was entitled to know if a sale was imminent so that it could negotiate with the
Company as to the effects of the sale on the job rights of the employees. According
to Kriger, however, Treacy declared to him that the Union was not entitled to any
information on the subject of whether the Company was being sold. Kriger testified
that at that point Treacy told him that unless the Union had another offer on the
matter of a wage increase it would be useless to discuss the matter further because the
Company "could not afford to pay what the Union was asking for." Kriger testified
that he then told the management representatives that the Union was entitled to the
company books and records in order to be able to bargain intelligently. The Respond-
ent conceded that this request was emphatically rejected. Kriger's testimony was
corroborated by that of Dawson and Cirone. According to the latter, during the
course of the meeting Treacy told them that he would offer a 5-cent wage increase but
that "He couldn't afford any more and . . he wouldn't pay any more." The meeting
closed after the Federal mediator conferred separately with the representatives of
each side. Dawson testified, credibly and without contradiction, that as the session
was concluded the union representatives expressed to Rector and Treacy their readi-
ness to resume negotiations with the Company at any time.
Much of the testimony offered by the General Counsel was corroborated by wit-
nesses for the Respondent. Some of the concessions which Treacy made while a
witness have been set out above. While conceding that he refused to show the Com-
pany records to Kriger or to any other representative of the Union, Treacy denied that
at any time during the course of the bargaining had he stated that the Company could
not afford to pay more than 5 cents an hour. Sampson, who was present during this
meeting, partially corroborated Treacy as to this point. On the other hand, Sampson
conceded that the meeting broke up after Kriger stated that the Union was unable to
bargain intelligently as long as the Company insisted that although it could not afford
a greater wage increase it did not have to, and would not, show the employees' repre-
sentatives its books and records. Rector, who was present throughout the hearing
and actively participated in the trial of the case, did not take the stand.
Upon a consideration of the foregoing testimony and the demeanor of the witnesses,
it is my conclusion that , as Kriger testified , early in the bargaining session
on October 31, Treacy stated that the Company could not afford to pay more
OHIO CAR & TRUCK LEASING, INC. 1427
than a 5-cent an hour wage increase and thereafter refused to offer any business
records or data that would permit the Union to determine the facts with respect to
this contention.
There was testimony that during the early part of November, management repre-
sentatives sought to bypass the Union in dealing with the employees. Thus, Frank
Cirone, a mechanic in the shop, testified that during the first week in November,
Treacy called him into his office and there told him that "he didn't know why the men
were bothering with the Union when actually he could draw up a contract with them
that probably would be better and easier to get along with." According to Cirone, in
that same conversation, Treacy suggested that, in the alternative, "you could go to the
Machinists' Union if you wanted to" and that insofar as Local 92 of the Teamsters
was concerned "He didn't want to give them a contract at all." Cirone refused to be
drawn into the merits of Treacy's proposals and told the Respondent's president,
"Local 92 is our bargaining agent, we would just as well let them handle it." The
foregoing quotations are from the credited testimony of Cirone which was corrobo-
rated, in part, by Howard L. Sampson, vice president of the Respondent, who was
present during some of the conversation which Treacy had with Cirone. Treacy
testified with respect to other aspects of this conversation, but at no time denied the
statements which Cirone attributed to him. Consequently, I credit the testimony
of Cirone as to this incident.
Stanley Melott, another mechanic in the Respondent's employ, testified that on
about November 2, 1963, Foreman Kenneth George asked that he report to the office
of Vice President Sampson. According to Melott, thereafter, Sampson told him that
he was considering "taking over the servicing end of the deal," he would need three of
the employees, in addition to a working foreman, and Melott's wages as a mechanic
"would be the same [as he was then getting] or more." Sampson did not mention the
Union contract during the course of the conversation. At the hearing, Sampson did
not contradict this testimony and, in fact, conceded that he had discussed the fore-
going matter with some of the employees. Melott was a credible witness. Since his
testimony was neither contradicted nor denied, it is credited by me.
On November 4, 1963, as found earlier herein, the Union filed an unfair labor
practice charge against the Respondent alleging that the latter was refusing to bargain
in good faith.
On November 20, the parties resumed negotiations, again under the auspices of
Federal Mediator Duffy. The two areas in dispute were the amount of the wage
increase and sick leave. After some discussion, the Union announced that it would
accept the company wage offer of 5 cents an hour and that it would withdraw its
request for a clause granting the employees sick leave with pay. This was agreeable
to the Respondent. The Federal mediator then had the parties review the terms of
their agreement, paragraph by paragraph. After this was done, Dawson asked
Rector if he would have their agreement typed. The latter stated that his office was
very busy and asked that the Union assume the burden of mimeographing the con-
tract in final form and sending copies to the Company. Dawson agreed to do so.
Thereafter, and before the parties left the meeting, Treacy told Dawson that he would
not actually sign the agreement until the Union withdrew the unfair labor practice
charge it had filed with the Board earlier that month.3 Dawson replied that the
dropping of the charge had nothing to do with the new contract, but that, in any
event, he would advise Kriger. counsel for the Union, of Treacy's position.
At the end of the meeting, Dawson asked the company representatives if the Union
had a contract, and Rector replied in the affirmative.4 By November 25, Dawson had
had his secretary complete the typing and mimeographing of several copies of the new
agreement Dawson thereupon telephoned Treacy to ask how he would prefer to
handle the execution of the documents. Treacy asked that Dawson sign four or five
copies and forward them to the Company by mail. On November 26, Dawson exe-
cuted several copies of the agreement and mailed them to Treacy.
On December 10, Dawson telephoned Treacy to ask why he had not acted on his
promise to execute the new contract. The latter told him that this was because he had
an objection to a clause on casual employees in article 7 of the agreement and further,
that he would not sign the copies until the Union dropped the unfair labor practice
charges. Dawson reassured him that as to the provision on casual employees, it would
3 There was no dispute with respect to the Company's attitude ae to the withdrawal of
the charge At the hearing, Rector, its representative, stated "the Company's position
was that no contract would be signed unless or until the charge was withdrawn by the
Union that they had filed with the NLRB "
4 This finding is based on the credited, undenied testimony of Dawson.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be agreeable to the Union if Treacy rewrote it as he wished and initialed it before
executing the complete contract . Dawson further promised that with respect to with-
drawal of the Labor Board charge, he would ask Attorney Kriger to initiate the neces-
sary action immediately . Thereafter , the Union wrote the Regional Director to
request that it be permitted to withdraw the charge in Case No. 8-CA-3333. The
Regional Director granted the withdrawal without prejudice . On December 20,
Treacy received notice from the Regional Office of this action. That same day he
signed the new agreement with the Union.
On December 17, the Company discharged Frank Cirone, a mechanic who had been
a member of the union negotiating committee throughout the collective -bargaining
sessions for a new contract . The following day, Dawson telephoned Treacy to discuss
the firing of Cirone. According to Dawson, and his testimony in this regard was
undenied, Treacy told him that the action as to Cirone was final and that the Union
could do what it wished. Dawson concluded the conversation with a request that the
dispute be arbitrated. On December 20, the Union wrote a letter to the Company
setting forth its grievance with respect to the dismissal of Cirone and demanding that
the matter be settled by arbitration. The Respondent stipulated at the hearing that it
took no action thereafter to process this grievance.
On or about December 22, the Union received from Treacy, executed copies of the
collective -bargaining contract . In these copies there appeared additional changes in
the agreement , apart from the one as to casual employees which Dawson had dis-
cussed with Treacy on December 10. These changes, which Treacy made and which
are an issue in this case , appear in article 20 of the contract . This article , entitled
"Term of Agreement ," reads as follows in the copy which Dawson signed and mailed
to Treacy:
This Agreement and all of the terms and provisions thereof shall be and remain
in full force and effect from November 1, 1963, to November 1, 1964. There-
after, this Agreement shall continue in full force and effect , successively from
year to year , unless either party gives notice in writing to the other party sixty
(60) days previous to date of expiration of November 1, 1964, or November 1
of any succeeding year.
SIGNED by the duly authorized representative of the Employer and the Union,
at Canton, Ohio, this 26th day of November 1963
Before executing the agreement , Treacy inserted after the second to the last sentence
in the above paragraph the following language:
This paragraph of Article 20 does not apply to arbitration of any dispute arising
between November 1, 1963 and the date of the signing of this Agreement.
Treacy also struck out the date "26th day of November" and inserted "20th day of
December ." He made a third and final change by inserting after the date a new line
which read as follows:
The wage increase of five ( 5) cents per hour shall be retroactive to November 1,
1963.
Treacy initialed each of the foregoing changes on the copy of the agreement which he
forwarded to the Union.
The General Counsel and the Union contend that at the meeting on November 20,
the parties agreed on all the terms of a collective-bargaining agreement which was to
be retroactive in every respect to November 1, 1963. The Respondent disputes this
contention and argues that only the economic provisions of the agreement were
intended to be retroactive . Thus, Von Kaenal testified that, acting pursuant to
Rector's instructions , from November 1 to November 20, she withheld union dues
from the wages of the employees , and put them in escrow until the latter date when
she forwarded them to the Union. At one point in her testimony, Von Kaenal stated
that on November 20, Rector told her that she should release the union dues which
'had been withheld because "the economic part of the agreement had been reached."
The day before she gave this testimony, however, Von Kaenal had also been on the
stand and at that time she had not qualified the character of the agreement which the
parties had finalized . Thus, in that earlier appearance as a witness she testified that
on November 20:
Mr. Rector informed me after the last meeting of the Union that they had reached
an agreement and that I should release the union dues which I had held out of
the pay of the employees on the first week of the month.
OHIO CAR & TRUCK LEASING, IN C. 1429
Thereafter, Von Kaenal was asked the following question and gave the answer which,
appears below:
Q. And Mr. Rector . . . told you that they had reached an agreement retro-
active to November 1st, isn't that correct?
A. That is right. Retroactive to November 1st.
Treacy testified that at the meeting on November 20, he stated that the only provision
in the contract that he would make retroactive was the wage increase for the men.
This testimony, however, was not convincing, most particularly in view of the fact that
from the testimony of Von Kaenal it was obvious that, entirely apart from wages,
the Respondent made the union-shop provision of the agreement retroactive to
November 1.
B. Concluding findings
Both Dawson and Cirone testified that at the final bargaining session it was agreed
by the parties that the entire contract would be retroactive to November 1, 1963, and
in effect for 1 year thereafter. This testimony on the part of the two last-named wit-
nesses is supported by the original language in article 20 of the contract. Before the
additions which Treacy made in this article on December 20, it read as follows:
This Agreement and all of the terms and provisions thereof shall be and remain
in full force and effect from November 1, 1963, to November 1, 1964. There-
after, this Agreement shall continue in full force and effect, successively from
year to year unless either party gives notice in writing to the other party sixty
(60) days previous to date of expiration of November 1, 1964, or November 1
of any succeeding year. [Emphasis supplied I
From the italicized portion of the foregoing clause it is plain that on November 20
when the parties concluded their bargaining session they intended that the collective-
bargaining agreement be retroactive to the first of November in its entirety. For this
reason, it is my conclusion that the contention of the Respondent to the effect
that the Company had agreed only that the economic provisions of the contract
relate back to November 1, is unsupported by the record in this case. Business
Agent Dawson conceded that in his telephone conversation with Treacy on Decem-
ber 10 he had agreed with Treacy on a rewording of the clause on casual em-
ployees in article 7 of the contract. On the other hand, there had been no such
approval by the Union, nor any negotiations, as to the changes which Treacy thereafter
unilaterally wrote into article 20. The Union was entitled to an executed agreement
in accord with the final understanding of the parties as arrived at on November 20
and December 10. The latter did not include the alterations and amendments of
article 20 set forth above. The Respondent's action in effecting these changes con-
stituted an unlawful refusal to execute a completed contract with the Union after all
outstanding matters had been incorporated into a bargaining agreement. In so doing,
the Respondent violated Section 8(a)(5) and (1) of the Act. H. I. Heinz Company
v. N L.R.B , 311 U.S. 514, 523-526; Avalair Corporation, 143 NLRB 650, Revere
Metal Art Company, Inc., 146 NLRB 253; Artistic Embroidery, Inc., 142 NLRB 974,
982. See also Section 8(d) of the Act.
It was likewise a violation of the same section of the Act, and I so find, for
the Respondent to condition its execution of the contract on the withdrawal of
pending unfair labor practice charges. Lion Oil Company v. N L.R.B., 245
F. 2d 376, 379 (C.A. 8); American Stores Packing Co., et al., 142 NLRB 711, 720;
Homer Gregory Co., Inc, 123 NLRB 1843, 1845-1846.
Moreover, in view of the Respondent's contention at the bargaining sessions that it
could not afford to pay a wage increase, the Respondent was obligated to supply finan-
cial data to substantiate this claim. Its refusal to furnish such information in the face
of this plea constituted a refusal to bargain in good faith and contravened Section
8(a)(5). N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149.5 I so find.
Earlier herein it was found that during the early part of November, Treacy sug-
gested to employee Cirone that the men could secure a contract from the Company
without the Teamsters which would be "better and easier to get along with." During
the same period Vice President Sampson sought to discuss other employment arrange-
ments with Melott, one of the mechanics in the shop. These discussions with the
employees by management representatives outside the presence of the designated bar-
gaining agent constituted unlawful unilateral attempts by the Respondent to bypass the
5 See also Lloyd J Taylor. d/b/a Taylor Foundry Company. 141 NLRB 765, 766-767;
Cincinnati Cordarye and Paper Company, 141 NLRB 72, 77. Tennessee Coal i Iron Divi-
sion, United States Steel Corporation, 122 NLRB 1519, 1526-1527.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union in dealing with the men. In so doing, the Respondent further violated Section
8(a)(5) and (1). Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 683-
.685; N.L.R.B. v. Wings & Wheels, Inc., 324 F. 2d 495, 496 (C.A. 3); Lion Oil Com-
pany v. N.L.R.B., supra.
Lastly, it is evident that the Respondent rejected the principle of collective bargain-
ing by its discussion of a separate contract with employee Cirone, by its refusal to
supply financial data that would support its claimed inability to pay the Union's wage
demands, by its avoidance of the obligation to sign the final agreement reached in
negotiations on the pretext that the unfair labor practice charge must first be with-
drawn, and by its refusal on and after December 10, 1963, to sign a written agreement
embodying the terms already agreed upon with the Union unless it could make addi-
tional changes in said written agreement. In view of the Company's total course of
conduct, as found above, it is my conclusion that the Respondent's refusal to
execute the agreement negotiated by the parties on or about December 10, 1963,
was in bad faith and that by such conduct the Respondent violated Section 8(a)(5)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. All mechanics and utility men and such other employees of the Respondent as
are under the jurisdiction of the Union, excepting, however, employees who are mem-
bers of other unions, until such employees shall be assigned to the jurisdiction of the
Union, constitute a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
3. For several years, including all times material herein, the Union has been the
exclusive representative, for the purpose of collective bargaining within the meaning
of Section 9(a) of the Act, of all the employees in the aforesaid appropriate unit.
4. By refusing to bargain in good faith with the Union, by refusing to supply the
Union with evidence to support a claim that it is financially unable to pay a requested
wage increase, by illegally conditioning execution of an agreement on the Union's
withdrawal of a pending unfair labor practice charge, by refusing to execute the agree-
ment finally agreed to by the parties on or about December 10, 1963, and in bypassing
the Union in dealing with its employees, the Respondent has engaged in, and is engag-
ing in, unfair labor practices within the meaning of Section 8(a) (5) of the Act.
5. By said acts the Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices it
will be recommended that it be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act. It will be
recommended that, upon request of the Union, the Respondent sign the contract it
agreed to on or about December 10, 1963. If no such request is made by the Union,
it will be recommended that the Respondent be ordered to bargain collectively, upon
request, with the Union as the exclusive representative of the employees in the appro-
priate unit, and, if an understanding is reached, embody such understanding in a
signed agreement.
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Ohio Car & Truck Leasing, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Refusing, if requested to do so by the Union, to sign the agreement reached with
the Union on or about December 10, 1963, or, if no such request is made, refusing, on
OHIO CAR & TRUCK LEASING, INC. 1431
request, to bargain collectively with the Union as the exclusive bargaining representa-
tive of all its employees in the appropriate unit with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a signed agreement.
(b) In any like or similar manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to join or assist labor
organizations, to bargain collectively through representatives of their own choosing,
and 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.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon the request of the Union, sign forthwith the agreement reached with the
Union on or about December 10, 1963. If no such request is made, upon request of
the Union, bargain collectively with it as the exclusive representative of the employees
in the above unit, and if an understanding is reached, embody such understanding in a
signed agreement.
(b) Post at its shop in Canton, Ohio, the attached notice marked "Appendix." 6
Copies of said notice, to be furnished by the Regional Director for Region 8, shall,
after being duly signed by an authorized representative of the Respondent, be posted
by Respondent immediately upon receipt thereof and be maintained by it for a period
of 60 consecutive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 8, in writing, within 20 days from the
receipt of this Decision 7 and Recommended Order, what steps it has taken to comply
therewith.
0In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
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, we hereby notify our employees that:
WE WILL, if requested to do so by General Truck Drivers Local No. 92, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, sign the agreement reached with the above union on or about Decem-
ber 10, 1963. If no such request is made, we will, upon request, bargain collec-
tively with the above-named union for the unit described herein with respect to
rates of pay, wages, hours of work, and other terms and conditions of employ-
ment, and if an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All mechanics and utility men and such other employees of the Respondent
as are under the jurisdiction of the Union, except, however, employees who
are members of other labor unions, until such employees shall be assigned
to the jurisdiction of the Union
WE WILL NOT make or effect any change in the terms or conditions of employ-
ment of our employees in the appropriate unit without first giving notice to and
consulting with the statutory representative of our employees.
WE WILL NOT, by refusing to bargain in good faith, or in any like or similar
manner, interfere with, restrain, or coerce our employees in the exercise of their
right to self-organization, to form, join, or assist the above-named union, or any
other labor organization, to bargain collectively through representatives of their
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities.
OHIO CAR & TRUCK LEASING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they
have any question concerning this notice or compliance with its provisions.
Electric Motors and Specialties , Inc. and International Union
of Electrical , Radio & Machine Workers, AFL-CIO. Case No.
13-CA-5368. December 8, 1964
DECISION AND ORDER
On August 26, 1963, Trial Examiner Lloyd Buchanan 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 attached Inter-
mediate Report. He further found that the Respondent had not
engaged in certain other unfair labor practices as alleged in the com-
plaint and recommended the dismissal of these allegations. There-
after, the Respondent, the General Counsel, and the Charging Party
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record of this case, including the Intermediate Report, the
exceptions, and briefs, and hereby adopts the Trial Examiner's find-
ings, conclusions, and recommendations only to the extent consistent
herewith.
We agree with the Trial Examiner's findings that the Respondent
did not, as alleged in the complaint, engage in interrogation of and
surveillance of employees with respect to their union activities, or
threaten reprisals, or give warning notices or reprimands to employ-
ees as a result of their engaging in such activities, in violation of
Section 8(a) (1) of the Act. We also agree with the Trial Examiner
that Respondent did not, as alleged in the complaint, violate Section
8(a) (3) of the Act by terminating certain employees. Accordingly,
we shall adopt his recommendations that those allegations of the
complaint be dismissed.
149 NLRB No. 125.