Safeway Trails, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1975

216 N.L.R.B. 951 (N.L.R.B. 1975)

SAFEWAY TRAILS, INC.
Safeway Trails, Inc. and United Transportation Union,
Local No. 1699. Case 5-CA-5975
March 10, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On June 26 , 1974, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed cross-exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings , findings,
and conclusions ' of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
1 We would not find that Paul Miller 's statement that Respondent would
never sign a contract with the Union violated Sec . 8(aXl) of the Act. Miller
was in no way connected with the contract negotiations and had no special
knowledge of the negotiations . At the time he made the statement that
allegedly violated the Act , Miller had relinquished all supervisory functions
and was driving a bus . Under these circumstances , we find that Miller's
statement was noncoercive and did not violate the Act.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES , Administrative Law Judge: This case
was heard at Washington , D.C., on various dates from
February 19 through 27, 1974, based on charges filed
February 19 , 1973, and amended March 30, 1973, and a
complaint issued January 15 , 1974, alleging that Respon-
dent violated Section 8(axl) and (5) of the Act. The
General Counsel , the Charging Party, and Respondent
have filed briefs . In addition, the Respondent filed a
"Motion to Strike Portions of Briefs to Administrative Law
Judge," and the General Counsel and the Charging Party
have filed memoranda in opposition to Respondent's
I The joint motion to correct the transcript filed by the General Counsel
and the Respondent is hereby granted.
951
motion . I deem the motion and the memoranda as
constituting supplemental briefs, accept them as such, and
will resolve the questions raised thereby , as well as in a
subsequent letter from the Charging Party, in this Deci-
sion.
Upon the entire record in the case,' including my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent, a Maryland corporation with its principal
office in Washington , D.C., is engaged in the interstate
motor coach transportation business at its terminals in
various cities along the east coast of the United States.
During 1973 it derived gross revenues in excess of $50,000
from the interstate transportation of passengers and
freight . I find, as Respondent admits, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. United Transportation Union, Local No. 1699, the
Charging Party, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. The Issues-Some Preliminary Discussion
The issues as framed by the pleadings are, first, whether
Respondent violated Section 8(a)(5) of the Act in nine
specific respects set forth in paragraph 8 of the complaint
(as amended at the hearing); second , whether Respondent
violated Section 8(a)(l) of the Act by the acts set forth in
paragraph 8 of the complaint, and in eight other specific
respects set forth in paragraph 9 of the complaint (as
amended at the hearing); and third, whether a strike that
began April 2, 1972, as an economic strike was prolonged,
and converted into an unfair labor practice strike, by the
unfair labor practices alleged in paragraphs 8 and 9 of the
complaint.
The parties, however, are not in full agreement as to
precisely what are the issues in this case . The General
Counsel's brief states the issues as follows:
1. Whether Respondent disparaged and discredited
the Union's chief negotiator, John Lantz, and the
Union in violation of its duty to bargain in good faith
by means of a series of written and oral communica-
tions with strikers and other conduct?
2. Whether Respondent coerced and restrained
employees in the exercise of their Section 7 rights by a
series of conduct undertaken in connection with a
back-to-work movement?
3. Whether Respondent by other conduct coerced
and restrained employees in the exercise of their
Section 7 rights?
4. Whether the effect of Respondent's acts was to
convert a strike , economic in its origin , to a strike, a
216 NLRB No. 171
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of which was to protest the Respondent's
unfair labor practices?
Respondent 's brief states the issues as follows:
1. Whether counsel for the General Counsel has
proved, by a preponderance of the evidence, that the
Company violated Section 8(aX5) and (1) of the Act by
seeking to undermine the authority of John Lantz, the
Union's bargaining committee chairman , by negotiat-
ing directly with certain striking employees.
2. Whether counsel for the General Counsel has
proved , by a preponderance of the evidence, that the
Company interfered with, restrained , and coerced
certain of its employees in the exercise of their rights
under Section 7 of the Act.
3. Whether, assuming that any unfair labor prac-
tices occurred , counsel for the General Counsel has
proved, by a preponderance of the evidence, that the
strike , which began on April 2 , 1972, and is continuing
to date , was converted to an unfair labor practice strike
on or before December 14, 1972.
And the Union's brief states the issues as follows:
1. Whether Respondent refused and continues to
refuse to bargain in good faith.
2. Whether Respondent 's program , developed dur-
ing the first few weeks of the strike , to undermine
Lantz, the chairman of the UTU negotiating commit-
tee, in an effort to induce its striking employees "to
boot Lantz out" and to compel the UTU International
to take over the bargaining negotiations is inconsistent
with its obligation to engage in an earnest effort
through the process of collective bargaining to seek a
basis for an agreement, all in violation of Section
8(a)(5) of the Act.
3. Whether Respondent by its conduct in carrying
out its program to disparage, discredit, and destroy the
UTU bargaining committee, particularly its chairman,
Lantz, coerced and restrained employees in the exercise
of their Section 7 rights to bargain collectively through
representatives of their own choosing.
4. Whether Respondent's actions in violation of
Section 8(aX5) and (1), as described, converted the
strike into an unfair labor practice strike.
As can be seen , the General Counsel's and Respondent's
statements of the issues do not materially differ. But the
General Counsel's brief clearly takes the approach that
2 Thus, I stated at the hearing, "We're not getting into good or bad faith
in bargaining and that's the issue we have taken out of the case ." At another
point, after counsel for Respondent took exception to a statement by
counsel for the Union that he did not "recall a concession that there was
good faith bargarnmg ," I stated, "That is correct . For purposes of this case
and for purposes of my decision, I can only assume good faith bargaining in
the bargaining sessions that occurred ." The General Counsel did not appear,
to disagree , at the time, with my view of what was not at issue in the case,
and my view that good-faith at-the-table bargaining was conceded,
3 The parties are also in dispute ona number of subsidiary matters, such
as whether I should take official notice of a transcript in another
proceeding, in 1957, involving the Company and a predecessor union of the
Charging Party and of a district court decision involving the pension plah;
whether I should receive in evidence (having rejected it at the hearing) the
Respondent 's entire campaign of away-from-the-table
conduct was "inconsistent with Respondent's obligation to
bargain in good faith ," and was "destructive of good faith
negotiations ." The Union specifically takes this position in
its statement of the issues , as well as in its brief. The
General Counsel and the Union, in other words, seek a
finding that the specific items alleged in paragraph 8 of the
complaint , viewed in conjunction with other conduct not
specifically alleged as violative of the Act either because it
occurred prior to the 10(b) period , or was not in and of
itself deemed to constitute a violation , tainted Respon-
dent's entire bargaining , demonstrating that Respondent
had no intention of reaching agreement with the Union.
Although , for reasons that will appear fully hereafter, I
do not believe that the General Counsel or the Union has
shown in fact or in law a case of "bad faith bargaining," I
do not in any event agree with their position that
Respondent 's "at-the-table" bargaining is in issue here.
Based on a prehearing conference held in this case , various
discussions and positions at the hearing , and the way the
entire proceeding was tried, I am satisfied that the at-the-
table bargaining not only was not under attack, it was
conceded , at least by the General Counsel, that the
bargaining was conducted in good faith . That was my
understanding at the hearing,2 and I see no reason to
chs}ttge my view. Despite that view , I shall consider herein
whether the away-from-the-table conduct was so perni-
cious as to warrant a conclusion that Respondent could
not have been bargaining in good faith at the table no
matter what was shown to have taken place during the
bargaining sessions.
Before considering the 8(aX5) allegation in the broad
sense advocated by the General Counsel and the Union, I
shall discuss seriatim the complaint's allegations , lettering
the 8(aX5) and 8(aXl) allegations, respectively, in conform-
ity with paragraphs 8 and 9 of the complaint .3 I choose this
method of proceeding partly because there are factual
questions involved - as to certain of the allegations , partly
because it is difficult to discuss them in a broad context
before considering them one by one, and partly because
one must begin somewhere.
B. Background and Chronology
The Union has represented the Company's drivers for
about 37 years, and a series of contracts , the last from
April 1 , 1969, to March 31 , 1972, have existed. Negotia-
tions for a new contract began on February 22, 1972.
Marvin Walsh , president of the Company, and its chief
negotiator for the last 30 years, was also its chief negotiator
Regional Director's original disposition of the charges herein and the
General Counsel's resolution of the Union 's appeal from the Regional
Director's determination; and whether , as to certain contentions in both the
General Counsel 's and Union 's briefs, they are embraced by the pleadings,
or alternativgly were fully litigated so as to furnish a basis for either a
specific unfair labor practice finding or for background purposes in
connection with other allegations clearly embraced by the complaint. With
the exception of my exclusion of the documents relating to the Union's
appeal from the Regional Director's determination, as to which I hereby
reaffirm my ruling, I will consider these and related questions as the need
and occasion arises in connection with the principal issues herein, with any
specific matter not explicitly ruled upon subsumed in the conclusions
reached and the rationale therefor.
SAFEWAY TRAILS, INC.
during the bargaining sessions that began at that time. The
Union's chief negotiator at the 1972-74 bargaining sessions
was John Lantz. Various company and union officials
assisted Walsh and Lantz at the different sessions.
Beginning with the April 1, 1972, meeting, the 18th
between the parties, a Federal mediator attended and
assisted at the bargaining sessions . A strike, which was still
continuing at the time of the hearing, February 1974,
began April 2, 1972.
On April 5, 1972, Walsh sent a letter to all employees,4
with copies to the Union's negotiating committee and the
mediator, stating, in part, that two-thirds of the 18
meetings "were meaningless , or at least fruitless , because
the Union Chairman was not prepared, did not have his
full committee, and met either by himself or with one
member most of the time," and that the "Chaiimdn
insisted upon ridiculous demands . . . which made it
impossible to reach an agreement."
Because, as noted above, the gravamen of the 8(a)(5)
portion of the complaint is the "campaign to discredit and
disparage union chief negotiator John Lantz," and because
five of the nine allegations in that portion of the complaint
concern Walsh's assertions, by letters, telephone calls, and
personal conversations , concerning Lantz' inadequacies,
precisely what occurred at the first meeting of February 22,
1972, and the truth or falsity of the charges made on April
5, and in other communications to all or some employees
on various dates between April 5 and August 24, 1972,5
were placed in issue by the parties.
There is no question but that Lantz' role during
negotiations was anathema to the Company, or at least to
Walsh, its president and chief negotiator . This is plainly
evidenced by the April 5 letter, by the other letters prior to
August 24, and by the Company's own resume of the April
28, 1972, meeting (of which more later). I will not burden
this Decision with excessive details of the other letters. It
suffices to mention that (1) in a May 4 letter to the Federal
mediator, with copies to the UTU' s International president
and vice president, to all employees, and to the Union's
bargaining committee , Walsh referred to Lantz as com-
pletely lacking in "responsibility and sincerity," and said
that it was "high time the UTU Grand Lodge . . . assumes
its responsibility for the people they represent ... "; (2) in
a communique to all employees on May 11, Walsh stated
that Lantz had misrepresented to the membership the
number of items in dispute , and not presented to the
employees various proposals that the Company had made
in the two meetings prior to the strike ; and (3) Walsh
called James Gore, a former president of the Union, in
June 1972, told him that he could not get along with Lanta,
that Lantz changed the proposals every time they had a
meeting, and that Lantz was not telling the membership
everything that was going on.
I do not, however , propose to enter the thicket of
determining whether Walsh 's allegations concerning Lantz
in the various letters to the International, to the Federal
mediator, and to the employees were "justified." In the
The Company ceased to operate with the commencement of the strike,
resuming operations on or about January 13, 1973.
The date of the first specific allegation in the complaint.
s Perhaps because the allegations could obviously not furnish a basis for
953
first place, unless translated into a refusal to meet with
Lantz, that is, unless the allegations by Walsh were being
urged as a reason for any refusals to meet, no purpose
would be served, vis-a-vis the complaint's refusal-to-
bargain allegations, by deciding whether they were
accurate charges, and if so, whether they would constitute
a legitimate basis for refusing to meet with the Union as
long as Lantz was the Union's chief negotiator.6
It is true, as the General Counsel and the Union urge,
that a demonstrable falsity in the allegations 'contained
would have a bearing on the good faith or bona fides of
Walsh in sending the letters, but only if, in my opinion, an
inference could be drawn that the allegations were reckless,
in total disregard of the true facts, and accordingly did not
even represent a legitimate, even though erroneous, view of
Lantz' role in the conduct of the negotiations.
The situation here scarcely warrants such a conclusion or
inference. For example, the Company defends Walsh's
allegation that Lantz was "unprepared," at the first
meeting by testimony to demonstrate that he presented no
written proposals at that meeting, although during the
many prior negotiations between the parties, with different
negotiators for the Union, proposals in writing had been
presented at the outset of negotiations. The General
Cb el countered by presenting evidence that Lantz had
in fact prepared lengthy written proposals, indeed, com-
pletely rewriting and renumbering the provisions of the old
expiring contract.
As I view all the evidence, however, I am not convinced
that Lantz actually presented to the Company at that first
meeting more than a single proposal, involving leaves of
absence. I do not conclude that Lantz was in fact
unprepared; I do rather believe that the Company's
statement that he was not was neither reckless nor in total
disregard of the facts. Many of Walsh's criticisms of Lantz
were pejorative in nature, e.g., that Lantz was lacking in
"responsibility and sincerity." It is obviously a futile task
to attempt to determine whether that kind of an accusation
is true or false, or whether it represents the honest belief of
Walsh and other company officials. But the fact that this
particular accusation was made in a letter to the Federal
mediator, with copies sent to the International's president,
at least suggests that it was not said for the purpose of
avoiding reaching agreement.
By way of further "background," the Union vigorously,
and the General Counsel by reference, urge that I consider
Walsh's conduct in earlier negotiations, in the early and
middle 1950's, and in 1963, between this Respondent and
the Union, and between another company for which Walsh
had negotiated, Trailways of New England, and the
Unionj which the Union contends shows that Walsh "has
been prone to subvert the process [of bargaining] by
negotiating in, around, and through the committee .... "
The Union also requests that I take official notice of
testimony by Walsh in a representation case in 1957
involving the Company and a predecessor union to the
Charging Party. In effect, they argue that Walsh's modus
refusing to meet at all ; see, e.g., N.LRB. v. ILGWU[Slate Belt], 274 F.2d
376 (C.A. 3, 1960), there was no such refusal.
r I did not permit any testimony with respect to this latter conduct, a
ruling I hereby reaffirm.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operandi in prior bargaining demonstrates that he had a
predilection for bypassing the Union's chosen negotiators,
and bargaining directly with employees or union officials,
away from the regular scheduled bargaining sessions.
In my view, this is a two-edged sword. The fact that
Walsh did operate in this fashion, without objection either
expressed to him or manifested by any charges filed with
the Board, could well be said to have established, by
mutual consent , a modus operandi of helping to achieve a
successful resolution of bargaining problems by means
that , albeit unusual and perhaps might be indicia of bad
faith if engaged in by one of the parties without the express
or tacit consent by the other, were legitimatized by custom
and usage . Although it is true that an obviously unlawful
course of conduct does not lose its illegality merely because
the victim has not complained about it,s the earlier
conduct does not, in logic, taint , or make unlawful, present
conduct that, standing alone , would be legitimate. Even
assuming arguendo that Walsh 's previous bargaining
negotiations and techniques would , if brought to the Board
at the time by timely charges , have been found to have
violated the statutory requirement of good-faith bargain-
ing, the position of the Union and the General Counsel
here would be weakened, rather than strengthened, by the
fact that those techniques were not challenged.
As to the testimony of Walsh in Case 4-RC-3490, in
1957, I do take notice of it , as it is part of an official Board
record .9 Walsh testified as follows : "My experience [in
previous bargaining ] was I got it settled , because why.
Because in the hotel room in Springfield , Massachusetts,
there wasn't only the committee there . Most of the
mechanics were there, and it was in a suite . There were so
many people in the room that we settled it at five a.m. in
the morning . It was not a committee action . It was more or
less of a membership action . There were only forty-one
people involved in that unit, and that is the way we got it
settled . And that did not take place on May 9, 1957, or I
think we would have been able to have gotten that one
settled."
There is no basis whatsoever for concluding that Walsh's
conduct in 1955 was in any way unlawful , or in bad faith.
Even if Walsh at that time suggested the method which
"got it settled," the then union committee might well have
been in full agreement to proceed in the manner indicated.
Indeed , the committee may have invited Walsh to come to
the suite . Walsh also testified in the instant hearing that he
negotiated a settlement at one point after being invited by
the Union's committee to a meeting with "as many
members present as we could ," and "the Chairman and the
entire committee were there." The very fact that "the
Chairman and the entire committee were there" suggests
their willingness to proceed in that way , rather than any
"by-passing" of the Union's committee by Walsh. In short,
none of the testimony proffered in this connection could
furnish a basis for concluding that any present conduct
which standing along appeared lawful and legitimate
s E.g., it could not be argued by a company that because it had fired
dozens of employees for union activity in past years , without a complaint, or
charges filed by the Union , a present discharge for union activity was
lawful.
became invidious and unlawful when viewed against
Walsh's earlier negotiations for this or any other company.
I turn now to a consideration of the specific allegations
of the complaint, lettered, as indicated above, as in the
complaint.
C. The Refusal-To-Bargain Allegations
(a) On or about October 1972... Marvin E. Walsh
told striking employees in telephone conversations to
their homes that he would not sign a contract with the
union because he would not deal with John Lantz.
This allegation is based on the testimony of John
Mathias and his wife. Mathias testified that Walsh called
him, asked when he was going to return to work, stating
that he could return "the next day." Mathias indicated that
he would not return until a contract was signed, and Walsh
responded, "I can't do that because I cannot sit down and
negotiate with John Lantz...... Mrs. Mathias testified
that she was, at her husband's request, listening on the
extension, and has Walsh saying he could not "negotiate
with somebody with all the whiskers or beard on his face."
(Lantz does have a beard.) Walsh did not deny that he
phoned Mathias. He testified that he did so because the
terminal manager informed him that Mathias wanted to
talk to him, but did not want to cross the picket line to do
so in Walsh's office. He denied saying he would not
bargain with Lantz, or that he told Mathias he could return
to work the next day.
Both the General Counsel and the Company view the
testimony of Walsh and Mathias (as supported by Mrs.
Mathias) as in sharp conflict, and each presents cogent
reasons why the other's witness should be discredited.
Thus, Respondent contends that Walsh could not conceiv-
ably have told Mathias, in October 1972, that he could
return to work "the next day," because the Company was
not in operation, and did not resume operations until
January 13, 1973, and that Walsh had no reason for saying
he would not bargain or sign a contract with Lantz, as he
had met with Lantz 40 or more times by then, and in fact
subsequently met with Lantz another 30 to 40 times. The
General Counsel argues that Walsh's offer to Mathias to
come back to work was essentially a statement that "he
could have the men back to work as soon as a contract was
signed." The General Counsel also asserts that Mrs.
Mathias' testimony concerning Walsh's remark about not
being able to negotiate with "somebody with all the
whiskers or beard on his face," is "particularly convincing"
because she did not know who Lantz was, or what he
looked like, and it was therefore the type of statement that
must have "stuck out in her mind."
In my view, Respondent's argument is somewhat more
convincing, for the General Counsel's depends on speculat-
ing that Mathias' testimony concerning the Walsh offer to
Mathias to return to work the "next day" meant something
other than the plain words used by Mathias. I also do not
believe that Walsh could flatly have said he would not
6 Because of what follows , I pretermit any opinion as to the fairness to
Respondent of having my attention to this testimony raised in the
posthearing bnefs, rather than at the hearing.
SAFEWAY TRAILS, INC.
bargain and would not sign a contract with Lantz. More
likely, and this too is speculation on my part, but
speculation based on the letters sent by Walsh, and the
resume of the April 28 bargaining session (discussed
below), by saying something to the effect of "I can't [not `I
won't'] negotiate with Lantz," or with "somebody with all
the whiskers or beard on his face," Walsh was denoting
that it was difficult, that he was having a "rough time,"
bargaining with Lantz. Mrs. Mathias' testimony in fact
used the word "can't" in describing what Walsh said.
In all the circumstances described above, I do not find
any violation of the Act in connection with Walsh's call to
Mathias in October 1972.
(b) On or about December 14, 1972, Respondent
caused to be sent to the homes of a large number of
striking employees a letter over the signature of Marvin
E. Walsh disparaging John Lantz by accusing him of
not bargaining in the best interest of the Union's
members, and urging them to by-pass or oust Lantz
and deal directly with Respondent.
The letter in question reads as follows:
Dear Operator
It is almost Christmas and the strike is now well into its
ninth month. If you will carefully read the Company's
last and final offer good until December 31st, you can
see it is an extremely good offer taking in consideration
the milage rate, cost of living, holidays and funded
pension plan.
It is very puzzling to me why the operators, who have
been with this Company so many years, would allow a
Chairman with a 1967 seniority date to take over and
control the operators as he has done.
It would be my recommendation that you give this
offer serious consideration and then let Lantz know
how you feel as a body of men as this could adversely
affect the future welfare of you and your families.
I am extremely sorry the strike occurred as it has never
been my intention to do anything to the older operators
who have worked so many loyal years for Safeway
Trails.
My best wishes to you and your families for a Happy
Holiday Season.
Very truly yours,
Marvin E. Walsh
Leading up to the sending of the December 14 letter was a
letter from Walsh to Lantz (with copies to all employees,
the Federal mediator , and UTU International President
Chesser) with a "complete contract document," and a
iO The General Counsel asserts that this latter incident constituted
"direct bargaining with ... employees ," and a "blear by-passing of the
employees' representative ," in violation of Section 8(aX5) of the Act, which
"is further evidence of Respondent 's bad faith ." Aside from the fact that
there is no allegation in the complaint respecting this particular situation, I
955
summary of the "improvements made" therein, represent-
ing the Company's "final offer," and indicating its
availability until December 31, 1972. This letter also stated
Walsh's availibility "to answer any questions you [Lantz]
or the operators may have during the meantime." Appar-
ently as a result of this invitation, a number of employees
did call or speak personally with Walsh. On December 13,
1972, striker Richard Shortt pointed out an apparent
omission in one provision of the contract. Walsh agreed
with Shortt that the omission was a mistake, and company
official McGraw then typed up a change to correct that
mistake.1o
As to the December 14 letter, sent to 26 "senior
employees," Walsh testified that it stemmed from numer-
ous calls from striking drivers to get information about the
negotiations, and that most of the calls were from "senior
men." It is true, as the General Counsel asserts, that the
letter was sent only to the senior men, many of whom had
not sought information from Walsh, and was not sent to
some who had called, but were not senior. This does
suggest that Walsh was appealing to the men who had "the
most at stake," and, indeed, the letter refers to the
operators who "have been with this Company so many
years." But there is nothing per se wrong with writing to a
specific group of strikers, certainly not because they may
be the ones most "amenable" to the appeal.
Nor can I read the letter, as a whole, as any more than
an attempt by Walsh to get the recipients to induce Lantz
to accept the Company's December 7 offer. The paragraph
of the letter stating that it was "puzzling" to Walsh why the
senior operators "would allow a Chairman with a 1967
seniority date to take over and control the operators as he
has done," might, read in isolation, suggest that Walsh was
seeking the have the employees "boot Lantz out," but the
next paragraph, with Walsh's "recommendation," that the
employees "let Lantz know" how they feel about the offer,
negates such an implication.
The cases cited by the General Counsel to support his
position that the December 14 letter violated Section
8(a)(5) of the Act would not do so even were the letter to be
read as an attempt to persuade the recipients to "boot
Lantz out." Thus, in Plastiline, Inc., 190 NLRB 365, 375
(1971),' affd. 79 LRRM 2592 (C.A. 4), a violation was
found based on attempts to persuade the employees to
reject the Union, file a decertification petition, select an
independent union, and accept an agreement with the
independent union, as well as the Company's withdrawal
of recognition from the Union. Nothing in the instant
situation, or, indeed, in the entire case, resembles Plastiline.
In Wire Products Manufacturing Corp., 198 NLRB 652,
modified 484 F.2d 760 (C.A. 7, 1973), heavily relied on by
the General Counsel as to other allegations herein as well
as this one, the Board found a violation based on part on
the company's telling an employee that "if the local plant
committee repudiated in the Union's agent the local plant
committee could negotiate its own contract." But the
company also (and Wire Products involved a lockout
do not regard it as "an offer directly to employees" or as "by-passing the
employees' representative" in any meaningful sense . A mistake was pointed
out to Walsh by an employee, and the Company corrected it. I find no
violation based on this occurrence.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
situation) told employees that it would not bargain with the
union , as well as in other ways seeking to undermine the
union . The December 14 letter here is not a statement that
the Company would bargain for a contract only if Lantz
was repudiated. And Wire Products does not stand for the
proposition that any attempt to get union members to
"boot out" a particular negotiator violates the Act. I
therefore dismiss this allegation of the complaint.
(c) In or about late January 1973... Paul Miller told
striking employees at Respondent's New York, New
York terminal that Respondent would never sign a
contract with the Union.
In late January 1973, after the Company resumed
operations , according to strikers Robert Johnson and
Frank Wetzel , they had a discussion with Paul Miller"
while picketing at the New York City Port Authority
terminal, in which Miller said that "Marvin 'll never sign a
contract with the Union." Johnson asked whether Walsh
was quitting, and Miller responded "No, he is just never
going to sign a contract with the UTU." Miller denied this
conversation . Despite that denial, based on my observation
of the witnesses , I am satisfied that the conversation
occurred as testified to by Johnson and Wetzel . 12 Miller
was probably not in any position to know the precise status
of negotiations, and therefore was giving his personal
opinion , rather than stating a fact , or something he had
heard from Walsh or other high management officials. If,
however, he was a supervisor, as the General Counsel
contends , the statement would nonetheless constitute a
violation of Section 8(axl) of the Act (not 8(a)(5), in my
view, for I do not believe the employees would regard his
statement as coming from Walsh , and it clearly did not
represent Company policy).
As to whether he was a supervisor, until the Company
resumed operations on January 13, 1973, he was conceded-
ly a supervisor within the meaning of the Act. On January
15, 1973, however, Miller was offered a driving job, as were
many other "supervisors," being told that he could return
to his supervisory position any time he wanted, but that it
was a permanent transfer if Miller so desired . He accepted
the transfer , and was performing driving work at the time
of the incident in question, returning to his former
supervisory position on April 16, 1973, at his own request,
because he was "bored with driving." Although from
January 15 to April 15, Miller was technically not a
supervisor , 13 the fact is that his supervisory position
remained open to him on request , that no one other than
Miller himself was informed that his status was changed,
and that it is unlikely that the striking employees would
view him as anything other than a supervisor (which he
had been) performing nonsupervisory work during the
strike, particularly with the Company so recently having
resumed operations , and necessarily relying on many
supervisors to do the driving . I find, accordingly, that
Miller must have been viewed as a supervisor by the
employees , and that Respondent is responsible for his
conduct.
11 His status at the time is discussed hereafter.
12 I have taken into consideration Respondent 's arguments as to why I
should credit Miller, and do not find them persuasive
This is , however, the only violation of the Act found
herein . As already indicated , and as more fully discussed in
E below, the Company's at-the-table bargaining was not
put in issue , nor do I conclude that the evidence shows
"bad faith" by the Company, let alone any determination
not to sign a contract with the Union . Thus , the single
statement , not reflecting company policy , although techni-
cally violative of the Act , made by someone performing
rank-and-file work at the time , even though , as I have
found, he must have been regarded as a supervisor by the
employees , does not, in my opinion , have sufficient impact
to require any remedy . For a virtually identical holding by
the Board , see Procter & Gamble Mfg. Co., 160 NLRB 334,
339, fn . 8 (1966).
(d) On or about February 28, 1973, Marvin E. Walsh
disparaged and discredited John Lantz in telephone
calls to strikers ' homes by stating that Respondent
could reach an agreement with any negotiating com-
mittee the Union designated so long as John Lantz was
eliminated as a member of that committee.
After receiving some correspondence concerning insur-
ance, 14 Mrs . Sarah Stevens , the wife of striking employee
John Stevens, called Walsh at his home to inquire whether
her husband was terminated . Walsh assured her that he
was not, and could come back to work at any time.
According to her, she asked Walsh if the contract would
ever be settled. He replied "I really don't know. But I can
tell you how it can be settled. I will meet with any three
men on the roster other than John, other than John Lantz,
and I will guarantee then I can have this contract settled
within 2 to 3 hours." Walsh's testimony is somewhat
different with respect to the words allegedly violative of the
Act. As he put it, after Mrs. Stevens asked why the strike
wasn't settled, adding that she "could settle this strike
better than you and John Lantz are settling it," he replied
"There's a possibility that you could, if you could pick
three people that you would name and pick three other
different people from the company, those people might be
able to sit down and settle it, but I promise you one thing,
lady, whoever you are, I have given this thing honest and
sincere effort. I have never worked so hard in my life to try
and settle a strike."
I believe that Mrs. Stevens would be much more likely to
remember the substance of her one conversation with
Walsh than Walsh, who admittedly spoke to many
employees during the strike , by phone and otherwise. But I
find no violation in Walsh's expressed view , to a question
by Mrs. Stevens, who had called Walsh, as to whether the
contract would ever be settled, that it could be "in two or
three hours" without Lantz. The full context of the
conversation makes clear that this was not tantamount to
saying that the Company would not bargain with Lantz,
for, as Mrs. Stevens testified , Walsh first responded to her
question with "I really don't know." Again, there is
nothing wrong, in my opinion, with Walsh having and
expressing the view that it would have been much easier to
13 Cf., however, I.B.E W. (Illinois Bell Telephone Co.), 192 NLRB 85
(1971).
14 An allegation respecting this correspondence is discussed in (b) below.
SAFEWAY TRAILS, INC.
reach an agreement without Lantz as the chief negotiator.
Accordingly , I find no violation as to this incident.
(e) In or about March 1973... Marvin E . Walsh, in
telephone conversations with strikers at their homes,
made remarks that disparaged and discredited John
Lantz by suggesting to Union members that Lantz
would cost them their jobs and by urging Union
members to get rid of or do something about Lantz.
Employee Kenneth Day testified to a conversation with
Walsh on the telephone, somewhere in late January, with
Walsh saying , that he "couldn't understand why that the
men were letting John Lantz keep them out in the streets
and that he couldn't understand why that they couldn't do
something to get this thing settled , that the older men get
together and do something to get this settled ." Day went
on to testify that Walsh stated "It just might cost you your
job unless something is done about it." Walsh denied the
substance of Day's testimony although agreeing that he
had several conversations with Day.
I cannot believe that Walsh made the remark about
costing Day "his job ." It is not in keeping with any of the
conduct of Walsh or any other company official, even
accepting all allegations as fact . Furthermore , Day virtual-
ly "threw away" this last remark, after, as Respondent
appropriately puts it in its brief, "some prodding by the
... General Counsel." The other portion of the statement
testified to by Day is in keeping with the general tenor of
Walsh 's statement, letters, and communiques , and com-
ports with Walsh having sent the December 14 letter to the
"senior men." But, as with that letter, I view this statement
as no more than an expression of his view that the men
should go to Lantz to get him to accept the Company's
offer made the previous month. As so construed , I find no
violation of the Act in Walsh 's conversation with Day in
June 1973.
(f) On or about March 27, 1973. L. Hilton Warwick
disparaged and discredited John Lantz in conversation
with striking employees at Respondent 's Philadelphia,
Pennsylvania , terminal , by accusing Lantz of being
unreliable and blamed him for the loss of the strikers'
seniority.
About March 30, 1973 , according to strikers Edward
Vincent and Donald Teesdale, Hilton Warwick , company
vice president , asked them when they were going to return
to work . They replied that they would return when the
contract was settled and the strike was over. Warwick then
said that they were "following the wrong man," and
"following the wrong pied piper ," and therefore would
never return to work . Warwick also stated to Vincent that
he was "sorry to see him losing his years of service and
seniority." Warwick admitted having the conversation with
Vincent and Teesdale , placing it , apparently accurately, on
March 23 , 1973. He denied having made any statements
about Lantz, or having said anything about losing seniority
or years of service.
It seems likely that in the course of a conversation about
' The General Counsel's brief has Athey saying, in addition, that
Respondent would not deal with Lantz. Apparently, the General Counsel
957
strikers returning to work Warwick may well have
indicated that long service employees such as Vincent
would lose their years of service by remaining out on
strike-in the sense that, the Company already having
resumed operations, there might be no openings left for
employees who remained out much longer. Particularly
because the evidence establishes that no returning striker
lost any seniority, I cannot believe that Vice President
Warwick would threaten such a loss. I do conclude that
Warwick said something to the effect that they were
"following the wrong man," but do not regard that remark
as coercive, or as indicating any company refusal to
bargain with, or reach agreement with, Lantz. My
reasoning in this respect is the same as already set forth
above with respect to the statement by Walsh to Mrs.
Stevens, and the December 14 letter to the "senior men."
Accordingly, I find no violation as to this allegation of the
complaint.
(g) On or about April 28, 1973, Sam Athey disparaged
and discredited John Lantz in a conversation with a
striking employee at the latter's home, by accusing
Lantz of being a radical and by indicating that the
Respondent would not deal with him and by urging the
employee to return to work.
Employee Richard Gayhart testified that Sam Athey told
him that Walsh considered Lantz to be "a radical," and
that Gayhart should consider returning to work.15 Based
on my observation of the witnesses, I find that Athey did
say what Gayhart testified he said.
Athey, like Miller, transferred from a supervisory
position (supervisor of safety and training) to an operator's
position 2 days after the Company resumed operations.
For reasons stated with respect to Miller, I would find
Respondent responsible for any conduct by Athey during
this period, even though Athey, unlike Miller, ultimately
decided to remain an operator. However, I find nothing
wrong, nothing violative of the Act, in Athey saying that
Walsh said Lantz was a radical, nor do I detect any
suggestion of a threat, or coercion, or a promise of benefit,
in Athey's advising Gayhart to "consider returning to
work," particularly in view of the fact that the entire
conversation took place in a context of Athey asking
Gayhart to do some plowing for him on land owned by
Athey, apparently adjacent to Gayhart's property. Accord-
ingly, I find no violation as to this incident.
(h) In or about February or March 1973... William
Basinger stated in conversations with striking employ-
ees . . . that those who would abandon the strike and
return to work would receive wages and fringe benefits
in excess of what Respondent was then offering the
Union in contract negotiations. ,
Employee Kenneth Day testified to several conversa-
tions with company official William Basinger , some time in
February or March 1973, in which Basinger asked Day
why he had not come back to work, that he should not wait
too long or he might be "left out in the cold," that "the
took this from the complaint 's allegation rather than from the testimony, for
I find no such statement in Gayhart 's testimony.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company was bearing the full cost of the insurance," and
that insurance would start on the first of the month
following his return to work. Aside from the "left out in the
cold" statement , and that the Company was bearing the
full cost of the insurance , Basinger confirmed the conversa-
tions, one over the phone, and the other at a Masonic
Hall.16
Assuming that Basinger did use "left out in the cold" to
his "personal friend" Day, I agree with Respondent that
this was neither meant , nor could have been construed by
Day, as a threat, but rather as a colloquial way of
indicating that once the Company hired all the people it
needed, there would be no room left for anyone else. The
technical failure to tell Day that he would still have
"Laidlaw rights," in the context of this one-to-one
conversation between friends , I do not regard as violative
of the Act.
As to the alleged statement by Basinger that the
Company was bearing the full cost of the insurance, it is
inconceivable to me that Basinger , who was very involved
in the insurance program, and surely knew just what the
company offer to the Union had been (to pay 50 percent of
the cost), would have attempted to mislead a friend-to
induce him to return by a promise that obviously could not
be kept, and was not in fact the case with any returnee.
Perhaps there was some reference to the fact that the
Company had until a short time before borne the full cost
of the increase in premiums . Be that as it may, I find that
Basinger did not state that the Company would bear the
full cost of the insurance . Accordingly, I find no violation
as to this allegation.
(i) On ... August 24, 1972, Respondent caused to be
sent to all striking employees a letter over the signature
of Marvin E. Walsh disparaging John Lantz by
accusing him of not taking Respondent 's bargaining
proposals to Union members for their consideration, by
accusing Lantz of undermining negotiations, and
urging members to by-pass Lantz and deal directly with
Respondent.
At an August 22, 1972, meeting, the Company presented
a revised contract proposal to the Union, with Walsh
urging Lantz to take the proposal to the membership for a
vote . The Union determined not to submit the proposal to
the membership , so advised Federal Mediator Fidandis,
who in turn told Walsh , on August 23. The next day Walsh
sent a letter to all operators . Its full text is as follows:
You are in receipt of our proposal for a new
contract, which I handed to your Chairman and
Negotiating Committee in the presence of Mediator
Nicholas Fidandis in Washington , D. C. on Tuesday,
August 2L, 1972.
This proposal was at the request of your Chairman
on Saturday , August 19, 1972.
This offer concludes nearly five months of efforts on
our part to bring this strike to an end.
With Mr. Lantz's refusal to take our proposal to you
for your acceptance, we are all back to our starting
point of February 22, 1972. We have spent the
intervening time and thirty-eight meetings trying to
reach common grounds on which a settlement could be
reached but to no avail , principally because your
Chairman has constantly made more and more
demands that we cannot possibly accede to, and,
moreover , the fact that he won't approve for the record
those issues which we have agreed upon.
We feel that this type of negotiating has gone on for
too long and that time for action on your part is past
due. Besides denying yourselves and your families, you
have caused many innocent employees to suffer by
reason of being for lack of work.
In the new proposal you will find many concessions
that were purportedly stumbling blocks in our first
proposal . We hope that they meet your needs and for
those issues that fail to satisfy you, we must say our
position is taken only after careful consideration of our
economic needs to operate a successful and competitive
business.
You are all aware of our loss incurred from January
through March due to weather conditions and slow
business . You know the impact made by AMTRAK on
our Washington-New York runs and you can well
imagine the damage done to our business by GREY-
HOUND handling our passengers for the past five
months.
If you are going to keep your job and the Company
is to stay in business, we had better get back to work
and find a way to settle our differences while our
wheels are rolling , not by destroying our income and
thereafter expect to increase your benefits.
I feel that it is time for each of you to reflect that to
date no one has won anything instead we are all much
poorer for our experience
I sincerely hope that each of you will act in the
interest of your own personal welfare and aid in getting
an early settlement of this strike.
You are offered the best contract in the business.
Take it apart and learn for yourself what an opportuni-
ty you really have.
The General Counsel and the Union contend that this
letter constituted an invitation to the members to accept
the contract even though Lantz had refused to submit it to
them for a vote, that the celerity with which the letter was
sent, with another bargaining session scheduled for 4 days
later, "shows Respondent's lack of desire to reach an
agreement with the Negotiators, and that Respondent was
interested in dealing directly with employees." Respondent
contends that this allegation of the complaint (which was
by way of amendment at the hearing), is barred by Section
10(b) of the Act, and Respondent also argues that the letter
was not an attempt to undermine the Union, but was "a
protected and wholly valid communication."
As to Respondent's 10(b) contention, I adhere to my
ruling at the hearing . Spruce Up Corp., 194 NLRB 841
(1972), The Singer Company, Wood Products Division, 158
NLRB 677, 680-682 (1966); Efco Corporation, 150 NLRB
16 As Day testified, he and Basinger were "personal friends."
SAFEWAY TRAILS, INC.
1505, 1511, fn. 9 (1965); N.LR.B. v. Reliance Steel Products
Company, 322 F.2d 49, 53-54 (C.A. 5, 1963).
As to the substance of the letter , the General Counsel
cited the General Electric case (General Electric Company,
150 NLRB 192, 271 (1964), enfd. 418 F.2d 736 (C.A. 2,
1969). Trial Examiner Arthur Leff in that case stated:
"Respondent 's haste to publicize its offer reflected the
want of an earnest effort on its part to seek through the
process of collective bargaining a possible basis for mutual
agreement , and constituted clear evidence of bad faith."
Aside from the fact that the Trial Examiner, the Board,
and the Court of Appeals all specifically stated that the
communications of the company alone were not per se
violative of the Act, even the statement quoted begins with
"In the particular circumstances of this case ." And the
"particular circumstances" of the Company's communica-
tion to employees in General Electric were that the day
after it presented the Union, for the first time, with a
formal offer, and before any negotiations on that offer
were conducted , it proceeded to publicize it to the
employees in terms that , in conjunction with previous
statements and a host of other matters, formed the basis
for the Trial Examiner's conclusion . Here, the company
offer of August 22 came after 5 months and close to 40
bargaining sessions . In these "particular circumstances,"
the communication to the employees cannot be character-
ized as an intent to deal directly with the employees. It
represents no more than a legitimate tactic of urging the
employees to communicate with their representative, to
persuade them to tell their negotiators they wanted them to
accept the Company's newest offer . That such a communi-
cation is lawful is manifest from the Board 's holding in
Procter & Gamble Manufacturing Company, 160 NLRB 334,
340 (1966), where the Board said : "as a matter of settled
law, Section 8(a)(5) does not, on a per se basis, preclude an
employer from communicating , in noncoercive terms, with
employees during collective-bargaining negotiations. The
fact that an employer chooses to inform employees of the
status of negotiations , or of proposals previously made to
the Union, or of its version of a breakdown in negotiations
will not alone establish a failure to bargain in good faith."
Accordingly, I find no violation in the August 24, 1972
letter to the employees.
D. The 8(a)(1) Allegations
(a) The complaint 's allegation that all the conduct set
forth in the paragraph concerning 8(a)(5) also specifically
violated Section 8(a)(1) has already been considered above
with respect to each allegation.
(b) On or about February 26, 1973, Respondent
caused to be sent to the homes of all striking employees
a document signed by William Basinger informing the
IT The Company paid an increase in the premium set by the carrier in
June 1972.
18 Respondent objects to the General Counsel's contention in his brief
that the timing of the termination was part of the campaign to induce
strikers to return to work as not being part of any allegation of the
complaint . The General Counsel responds by disavowing any intent to
allege the termination as a specific violation , but asserts that it is "part of
the background of events ," and therefore properly before me. I agree with
Respondent that there was no intent to litigate , even as "background," its
959
strikers that after March 1, 1973, they would no longer
be insured under Respondent's group insurance pro-
gram and indicating as the reason therefore that the
individual striking employees were terminated.
From the time the strike began, April 2, 1972, until
February 1973, the Company had maintained in effect the
insurance that had existed for its employees, with strikers
who so desired continuing to be covered by paying their
premiums . 17 In February, the Company decided to
discontinue the insurance coverage for the strikers,
effective March 1, 1973.18
On February 26, a letter was sent to all strikers (133) who
had maintained their insurance coverage, to inform them
of the cancellation , and that they could convert to
individual policies. Subsequently some 52 conversion
forms were sent , between February 27 and March 28, 1973,
to strikers who indicated they did wish to convert. One of
the pages of each of the two forms (one for life and the
other for medical insurance) was a questionnaire, with one
form containing the language "Date of Termination," and
the other "a terminating employee." The General Counsel
asserts that this language violated Section 8(a)(l) because it
meant to the employees receiving it that they were
discharged. The General Counsel asserts that even though
the insurance carrier, Connecticut General Life Insurance
Co., required the Company to use the forms it provided,
and would not permit Basinger to alter the forms in this
respect, the failure of the Company to correct the
impression that this language meant the strikers were
discharged, known to the Company by virtue of Mrs.
Stevens call (see (d) above), and confirmed by Basinger's
having originally attempted to delete the word "terminat-
ing" and substituting "striking" therefor, was coercive and
violated Section 8(a)(1) of the Act.
I do not agree. That the Company's intent was lawful is
clear from the above recitation of facts, and virtually
conceded by the General Counsel. That the Company
never in fact terminated any striker is also clear. With
respect to the "confusion," the Stevens example, and there
is no other, scarcely gives rise to a conclusion that everyone
would be "confused," and in the Stevens' case, Walsh
assured Mrs. Stevens that her husband was not discharged
the moment she called . The fact that Basinger attempted to
change the forms and the carrier refused to permit that
correction does not militate against Respondent, it does
not make a sow's ear out of that silk purse.19 In these
circumstances, and for these reasons, I find no violation in
the use of the words "terminating" and "terminated" in the
standard forms sent out, and shall dismiss this allegation of
the complaint.
(c) In or about October 1972,. . . William Basinger
urged striking employees while they were picketing the
motivation in terminating the insurance-for the evidence and testimony in
this connection was placed in the record solely, in my view, to explain the
sequence of events that led to Walsh's letter and its accompanying forms,
one word of which is alleged to have violated Sec . 8(a)(1). In any event,
based on the evidence presented , I am satisfied that the Company's
cancellation was not invidious, but was necessitated by the contract
requiring 75 percent participation in the plan.
19 The "silk purse" being the obviously careful attempt by the Company
not to use words that might suggest to the strikers that they were discharged.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's Washington, D. C. terminal to give up
the strike because Respondent would no longer deal
with the Union.
There is a flat conflict in the testimony concerning this
allegation. Employee Louis Phelps testified that, in
October 1972, Basinger spoke to him and striker Melvin
Winslow while they were picketing at the Washington, D.
C., terminal, asking them why they did not come back to
work, telling them that Walsh was "fair," and had made
"fair offers," that John Lantz "was doing the best he could
for us," and that Walsh "was through dealing with us."
Basinger testified that he had no conversation with Phelps
in October 1972, although he talked with him on other
occasions, and specifically denied telling Phelps that the
men should come back to work because Walsh "is through
dealing" with the Union.
I was impressed with Basinger as a witness, in my
opinion he testified with complete candor and appeared to
have an accurate memory of events and conversations he
had with strikers. Also, as Respondent points out, he had
not been at the negotiating sessions, and did not know how
negotiations were progressing, so that it does not appear
likely that he would have made the remark attributed to
him. Accordingly, I find that the General Counsel has not
shown any violation as to this incident.
(d) On or about February 3, 1973, Marvin E. Walsh
told employees at Natural Bridge , Virginia that
Respondent could operate with 150 strike replacements
and that any employee who should return to work after
April 1, 1973, would lose his seniority.
The General Counsel contends that Walsh's comments
to returning strikers and new drivers at a retraining
seminar at Natural Bridge , Virginia, in early February
1973, violated Section 8(axl). The testimony concerning
these comments is that of employee William Powell, and,
in pertinent part, has Walsh explaining that the Company
could operate with 150 drivers, that anyone could return to
work under existing conditions, and that after the
necessary men to run the Company had been hired, "this
wasn't an indefinitely lasting thing."20
I cannot perceive any violation based on Powell's
testimony. The General Counsel asserts that it shows that
"subsequent [to the "cutoff" of 150] returnees would be
somehow treated differently." But, even aside from the fact
that Powell could not recall specific words, and only "was
led to believe," the rights of would-be returning strikers are
not the same after a company has hired back and restaffed
with all the employees it needs; the company is only
required to take them back as vacancies arise. The Laidlaw
Corporation, 171 NLRB 1366 (1968), enfd . 414 F.2d 99
(C.A. 7, 1969), cert . denied 397 U.S. 920 (1970). Nothing in
Powell's testimony suggested that after a striker was taken
back following the "cutoff," he would lose seniority.
Accordingly, I find no violation as to this allegation of the
complaint.
(e) On or about February 15, 1973, L. Hilton
20 Powell prefaced this latter phrase by saying "But I can't remember
specifically what he said they would do. But there again, I was led to believe
11that....
Warwick told striking employees at the Baltimore,
Maryland, terminal that after Respondent hired 150
strike replacements employees who had remained on
strike would ldse their seniority.
To prove this allegation of the complaint, the General
Counsel relies on an affidavit of strikers William Paul
Williams, which states that in the course of a conversation
with Company Vice President Warwick, the latter, in
explaining to Williams the rights of strikers who wished to
return to work,21 went on to say that after 45 days (the
time it would probably take the Company to accumulate
the number of operators needed to provide service) any
returning striker "would be hired as a new employee."
Williams testified, however, that Warwick did not threaten
him with any loss of seniority. He also testified that he told
employee Fowler of the conversation, and that there was
no mention of the critical statement, and Fowler confirmed
this.
The General Counsel claims that other circumstances,
such as Fowler asking his wife to call the Labor Board, and
her having done so, to ask some questions about his legal
rights, bear out the truth of the affidavit. In the light of the
fact that no returning striker was ever hired as a "new
employee," or denied seniority in any way, considering
also that Williams' affidavit stated that employee Melvin
Mathias was also told "the same things" by Warwick, yet
Mathias, who testified as a General Counsel witness, was
never even asked about this, and in the face of Warwick's
denial that he made any such remark, I do not accept the
statement in the affidavit, but accept rather Williams' and
Fowler's, as well as Warwick's, testimony, and find no
violation in this respect.
(f) As to the allegation in this section of the complaint,
there is no evidence in the complaint at all, as the General
Counsel agrees, and it is accordingly dismissed.
(g) On or about April 5, 1973, James McGraw and L.
Hilton Warwick, at Respondent's Washington D.C.
offices and on or about March 25, 1973, James
McGraw in telephone conversations, told striking
employees that in order for them to return to work they
would have to resign from the Union.
As to the March 23 allegation, the General Counsel
relied on the testimony of William Mishou. He stated that
he called the Company in March to find out the procedure
for returning to work, and spoke with company official
McGraw. Mishou's testimony as to what McGraw said was
given as follows: "I am fuzzy on that. I thought that he said
to me that I would have to sign a letter to Glenn Hudson,
President of UTU Local 1699, that I was resigning the
Union . But I am hazy on that because-I will be honest
with you: I have been drinking quite heavy." Mishou also
testified to having been offered, and receiving, 2 weeks'
picket duty pay for picketing he did not perform the night
before he went to the Labor Board office to give his
statement. In view of the admittedly "fuzzy" recollection of
21 This explanation , as stated in the affidavit as well as in Williams'
testimony on the stand , was a clear and accurate summary of the strikers'
rights and the Company's obligations under Laidlaw, supra.
SAFEWAY TRAILS, 14C.
Mishou , the timing of the payment to him by the Union for
picket duty he had not performed ,22 and the fact that he
testified he ultimately returned to work in July without
resigning from the Union, I can place no reliance on his
testimony, and find no violation of the Act in this respect.
The April 5 allegation involved employee Dennis
Schwark, and will be considered together with the next
allegation of the complaint , to which it is closely related,
and which states:
(h) On or about April 5, 1973, an agent of
Respondent . . . rendered unlawful aid and assistance
to Respondent's employees in an effort to cause them
to resign from the Union.
Schwark testified that he wished to return to work, and
met with McGraw and Warwick in McGraw's office in
Washington , D.C., on April 5, 1973. He was "inquisitive to
know if I could belong to the Union and still drive."
Asked, "Did you ask that question of Mr. McGraw and
Mr. Warwick?" Schwark replied "Well, it was brought up,
and I don't know who brought it up." Schwark then added
that he "had intentions of resigning anyway," that he
"couldn't afford Union payments. I was planning to resign
anyway." Schwark " felt it convenient for them to type up
... the resignation letter from the Union." A secretary did
type the letter, which he "reread carefully," and signed.
Schwark further testified that he was not told he had to
resign from the Union in order to come back to work, and
he was not offered any inducement to come back to work.
Schwark's testimony does not establish that McGraw or
Warwick induced him to resign from the Union, or in any
manner suggested or intimated that he would have to
resign in order to return to work. There is no question but
that Respondent assisted Schwark to resign by having a
company secretary prepare the letter. But, as Schwark
testified , he "felt it convenient for them to type up the
letter." And he had alteady told McGraw and Warwick of
his determination to resign . In these circumstances, the
minimal assistance given by the Company obviously had
nothing to do with Schwark's decision , and I do hot find
that as a matter of law such assistance violates the Act. The
only case cited by the General Counsel in support of
finding this a violation is San Jeronimo Hilton Hotel, 187
NLRB 947 (1971). In that case, the company personnel
manager did state to employees that he would prepare a
letter rejecting the union for them, but at the same time he
offered all employees $200 and a pay raise to abandon the
strike and return to work. The distinction between this case
and that is too obvious to require discussion.
The General Counsel also relied on some six letters of
resignation , of employees who were not called as witnesses,
to support this allegation of the complaint , asserting that
they are "strikingly similar in style and format" to each
other and to Schwark's letter of resignation , which was
admittedly prepared by the Company. Assuming, without
deciding, that these six letters were prepared by the
Company, as there is no evidence to show that the
22 I draw no conclusion that the payment was unlawful in any way,
particularly because of evidence which at least suggests that availability for
picket duty may have been enough to justify the payment. It is the timing of
the payment I am taking into account.
961
Company did any more than just that, they stand on no
better footing than does the Schwark letter itself. Accord-
ingly, I find no violation ehtailed with respect to Schwark
or with the other six letters of resignation.
(i) On or about October 12, 1972, Marvin E. Walsh
called a striking employee on the telephone and in the
course of that telephone conversation, by discussing
matters mentioned at a Union meeting held October
11, 1972, created the impression that the meeting and
the employees' participation therein were under surveil-
lance.
In early October 1972, James Gore, a former President of
the Union and Chairman of its Grievance Committee, had
discussed , at a union meeting, two particular proposals the
Company had made at a negotiating meeting a short time
earlier, expressing his concern and opposition quite
strenuously at the union meeting. Shortly thereafter Walsh
called Gore to explain to him certain matters about these
two proposals. The General Counsel contends that by
explaining to Gore the very two provisions about which
Gore had expressed concern at the union meeting, Walsh
necessarily created the impression that the Company had
the union meetings under surveillance. That Walsh in fact
did not have the meeting under surveillance is not
disputed, for it is uncontradicted that striker Williams
called Walsh and told him that Gore was concerned about
these provisions,23 and that it was because of Williams' call
that Walsh called Gore. In these circumstances , it is plain
that there was no intent of Walsh's part to indicate, by
indirection, that he had the union meeting under surveil-
lance . Although it is true that Gore, because Walsh did not
tell him how he had learned of Gore's concern, could have
drawn the inference that Walsh had spies at the union
meeting, it is difficult to believe that Gore, who, as
Respondent notes, was a former president of the Union,
would have thought along those lines, or would in any way
have felt threatened by Walsh's knowledge. Accordingly, I
find no violation as to this allegation of the complaint.
Woodruff Electric Cooperative Corp., 174 NLRB 575,
580-581 (1969).
E. The General Allegation of Bad Faith
As to those specific aspects of the complaint where I
have found that the testimony does not support the
General Counsel's factual allegations , no more need be
said. With, regard to the one specific violation found, the
statement by Paul Miller, for the same reasons set forth
above for not requiring any remedy with respect to it, it has
no bearing on Respondent's good faith-that is, it plainly
did not represent company policy. I will now, however,
consider the General Counsel's and the Union's contention
that the other allegations, particularly the Walsh letters of
August 24 and December 14, 1972, when viewed in the
29 It is not completely clear from Walsh 's testimony whether , in referring
to Gore's concern, Williams specified that the concern was expressed at a
meeting.
%2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
light of other letters and communications by Respondent
prior to the 10(b) period ,24 Respondent's resume of the
April 28, 1972 negotiations , and letters and communica-
tions during the 10(b) period not specifically alleged as
violative of the Act ,25 demonstrate a campaign "designed
to discredit and disparage the Union 's Chief Negotiator
Lantz and the Union itself," . . . "a campaign .. .
inconsistent with Respondent's obligation to bargain in
good faith with the representative of its employees,
irrespective of Respondent 's conduct at the negotiation
table, and . . . actually destructive of good faith negotia-
tions... .
The principal item of "background " relied on by the
General Counsel and the Union is contained in the
Company's resume , prepared May 1, 1972 , of the negotiat-
ing session that had been held April 28, 1972. After
summarizing the occurrences at the April 28 bargaining
session , the resume has a "Conclusion," reading as follows:
At this time 1218 see no possibility of settling a contract
with Lantz and it appears to me that we have but three
possibilities.
(1) Inform the membership and the employees
of the absolute irresponsibility of their represent-
ation in an effort to get them to boot Lantz out.
(2) The U.T.U. International taking over these
negotiations and putting in someone who can
intelligently negotiate and reach an agreement.
(3) Failing to achieve Nos . 1 and 2, it appears
that this will be a long work stoppage with the
definite possibilities of having to put this Compa-
ny back to work without a settlement with the
U.T.U.
The resume was purely an internal matter ; it was not
sent to the Union, to the employees , or to the Federal
mediator. The General Counsel contends, however, that
the three steps outlined therein constituted Respondent's
"strategy concerning its future conduct ," and that the
specific allegations of the complaint were an implementa-
tion of that strategy , with the first two steps begun almost
immediately . The Union, putting it more strongly , states
that the May I resume, in its conclusions , "categorically
defined" Respondent's "refusal to bargain ." Because this
resume forms the predicate , in large part, for the theories
of the General Counsel and the Union concerning the
general "refusal to bargain" allegation, it bears particular
analysis . The full context of the resume is important, not
for establishing as fact what is said therein, but as
demonstrating the Company's view of what had occurred,
why it had occurred, and why it saw "no possibility of
settling a contract with Lantz." The full resume (headings,
time, etc. eliminated) is as follows:
Due to the fact that we had finished discussing the
list of some 76 items the day before , this meeting only
involved a matter of three or four items on which we
had agreed the day before to furnish revised wordings.
These items were insignificant , but as usual Lantz had
balked at agreeing to anything.
The first item discussed was a small matter where we
had suggested going back to the wording of the expired
contract . The Secretary in copying from the old
contract omitted a comma and Lantz spent thirty
minutes ranting about this missed comma . His appear-
ance was not normal . He gazed out of the window
constantly while the Mediator attempted to get him to
agree to one or two more items, sentence by sentence.
Kelly appeared to be rather embarrassed but took no
hand to do anything.
Finally at about 3:30, after a separate session with
the Mediator, we were completely at a standstill with
nothing more to discuss . I told the Mediator that I
would like to make a statement , and I summarized the
fact that these negotiations had gone on many, many
days with many concessions by the Company, and that
the Union had not in any manner shown indications of
changing from their original position . That concessions
by the Company before and after the strike amounted
to improvements to the employees of approximately
one-half million dollars over a three year period. That
as of today , the lost wages suffered by the employees
amounted to in excess of one -half million dollars and
that no one can win under these circumstances. That
we could see no possibility for meaningful negotiations
so long as the Union Chairman continued as evidenced
by his 30 minute tirade today about the placement of a
comma, to refuse to realistically negotiate.
I told Kelly to his face , that we were amazed that he
would lend the dignity of his office and position to this
type of a situation . While I was talking , Lantz put on a
very childish act, brushing mock tears off his lapel and
asking Kelly for a handkerchief . When I finished,
Lantz in a very smart alec manner asked just how I had
arrived at the one-half million dollars in improvements
which the Company had offered over a three year
period.
I answered him that this had been done with
reasonable intelligence, a pencil and a piece of paper,
which he could have done himself had he been in
possession of these three items.
Kelly then made some remarks concerning the past
troubles which the U.T.U. had had with Safeway, again
repeating that had the U.T.U. not sanctioned the strike
on April 1, that the men were so incensed and stirred
up that the wildcat strike would have occurred anyway
with all the violence and destruction (these are his
words) that occur in a strike of that kind. We got the
impression that his heart was not exactly in what he
was saying, but he felt he had to make some sort of a
reply.
The meeting broke up about 3:45 with the Mediator
stating that he saw no possibility of further progress at
this time and would recess the meeting and the next
meeting would be called by him with proper notifica-
tion to both parties.
24 E.g ., the April 5, 1972, and May 4, 1972, letters , as well as Walsh's
conversation with Gore in June 1972.
25 E.g., the Company's letters of November 10 and 16, 1972.
16 The "I" is apparently either Company official H.L. Glisas or
McGraw.
SAFEWAY TRAILS, INC. 963
Lantz was so upset that he spoke to no one, the
Mediator or the Company people as he left . Kelly,
however, did shake hands with Walsh.
CONCLUSION:
At this time I see no possibility of settling a contract
with Lantz and it appears to me that we have but three
possibilities.
(1) Inform the membership and the employees
of the absolute irresponsibility of their representa-
tion in an effort to get them to boot Lantz out.
(2) The U .T.U. International taking over these
negotiations and putting in someone who can
intelligently negotiate and reach an agreement.
(3) Failing to achieve Nos . I and 2, it appears
that this will be a long work stoppage with the
definite possibilities of having to put this Compa-
ny back to work without a settlement with the
U.T.U.
I must conclude , based on the Company's expressed view
of the negotiations in the resume of May 1, 1972, that
seeing "no possibility of settling a contract with Lantz" was
not intended, even as an internally held company view, to
express that the Company would not sign a contract with
Lantz as the Union's chief negotiator . Rather, the
Company did not believe it could settle a contract with
Lantz, based on the many negotiating sessions held up to
that time, and the Company's view that it had made many
concessions, and the Union had not , that it was Lantz who
"balked at agreeing to anything," and "spent thirty
minutes ranting about [a] missed comma," in addition to
the complaints about Lantz already expressed in Walsh's
communique of April 5. That, holding such a view, the
Company would want to pursue all efforts "to boot Lantz
out" does not translate into a refusal to settle a contract
with Lantz there , but a hope that his departure would
result in an agreement.
The second "conclusion" in this resume, expressing the
possibility of the U.T.U. International "taking over," then
states "and putting in someone who can intelligently
negotiate and reach an agreement." Although this resume
was prepared by the Company, and for its own use, not for
publication to employees or anyone else , it was introduced
by the General Counsel, and therefore cannot be viewed as
"self-serving" with respect to representing the Company's
firmly held and honest opinion at the time . To me, the
second conclusion demonstrates that the Company wanted
to reach agreement.
The General Counsel and the Union would have it that
the Company, having seen "no possibility of settling a
contract with Lantz," was somehow wedded to the
proposition that it would not reach an agreement with
Lantz . Such a construction might be tenable had the
Company made the resume public (perhaps with the
omission of the second conclusion ), on the theory that it
"boxed itself in." Cf. General Electric, supra. But that was
not the case here . As to the third conclusion, since it is
perfectly lawful for a company to continue operating
during a strike, it can scarcely be unlawful for a company
to decide to go back into operation after having shut down
when a strike began. Again, the third conclusion talks
about the "possibilities" of resuming operations "without a
settlement," demonstrating that at least as reflected in this
resume on May 1, 1972, the Company wanted to reach a
settlement, but was having difficulty in doing so.
The other letters and communications to various
employees adverted to by the General Counsel were,
indeed, intended to implement steps one and two of what
the General Counsel called the Company's "Master Plan."
On May 4, 1972, the Company did urge the International
to "assume its responsibility in this matter." In June 1972,
Walsh did call former Union President Gore, indicate to
Gore that he could not get along with Lantz, state a
number of specific problems he had with Lantz, and ask
Gore to talk to other strikers about the Company's
problems with Lantz. The Company continued to com-
plain about Lantz thereafter, with Walsh telling employee
Day that the older men should do something about it, and
again in letters to strikers on November 10 and 16.
All this, urge the General Counsel and the Union,
demonstrate that the Company "had no desire to deal with
Lantz or the Union Committee," and as stated earlier, that
the Company was not bargaining in good faith, even
though Respondent's conduct at the bargaining table was
not alleged as evidence of its bad faith.
For reasons stated in "A" above, I regard the General
Counsel as having conceded that the at-the-table bargain-
ing was in good faith. For that reason alone, the General
Counsel's reliance on cases such as General Electric, supra,
and Wire Products, supra, is misplaced. For in those cases
there was no such concession , and even though the
conduct away from the table was largely instrumental for
the Board's conclusion that the bargaining at the table was
not in good faith, was not commensurate with the statutory
obligation to bargain, the Board did examine the conduct
at the bargaining table in the light of the conduct away
from the table.
The situation here is completely different. Indeed, it
would be a violation of due process to fmd bargaining at
the table in bad faith here, not only because of the
pleadings themselves, and the posture in which the case
was presented, but also because we do not know what
happened at the table, the company itself not having been
permitted to adduce evidence of what happened, often
because I sustained General Counsel objections to ques-
tions concerning the negotiations .27 Thus, for all I know, or
am supposed to know , the Company might have been able
to demonstrate 100-percent good-faith bargaining at the
table. It was not called on to do so , because it had no need
to defend itself with respect to "at the table" bargaining.
In General Electric, the Board stated (at 195): "We do
not rely solely on Respondent 's campaign among its
employees for our fording that it did not deal in good faith
with the Union. Respondent's policy of disparaging the
Union by means of the communications campaign .. .
was implemented and further by its conduct at the
97 Bits and pieces of the bargaining table discussion are in the record, alleged as violations in the complaint.
introduced for the purpose of shedding light on away from the table matters
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining table." Furthermore, although General Elec-
tric's communications program, constituting a "virulent
attack" on the union's top leadership, was a principal
factor in finding a violation, as Trial Examiner Leff
pointed out, it was a tactic "decided upon long in advance
of negotiations" (276), and the Company's " purpose was
not simply to keep employees informed of its views on
bargaining and related issues" (277). Leff also found that
these tactics "not only tended to but did result in
`deficiencies in its performance at the bargaining table' that
'obstructed and inhibited ' good faith bargaining." In short,
the differences between this case and General Electric are
far greater than the similarities.
In Wire Products, supra, although the Board found a
violation of Section 8(aX5) "notwithstand the General
Counsel's admission and our agreement that Respondent
did not otherwise violate the Act during the bargaining
sessions that took place," the unfair labor practices found
included violations of Section 8(axl) and (3) of the Act,
the Board found that the away-from-the-table conduct was
designed to undermine and destroy the Union's majority,
and what occurred at the bargaining sessions had not been
excluded from consideration.
I shall not analyze each case cited by the General
Counsel . Many of the principles set forth by him are sound
enough ; indeed, many are themselves quoted from Board
and Court decisions . But these principles cannot be read
out of context . Of all the cases cited to me by the parties, I
believe, as to this aspect of the case , Baldwin County
Electric Membership Corp., 145 NLRB 1316 (1964), is most
apposite . There, a Board panel (Chairman McCulloch and
Members Fanning and Brown) reversed a Trial Examiner's
8(aX5) finding, which had been based on various state-
ments found to constitute 8(a)(1) violations, including
threats, promises of benefits, and the like , as well as
statements to the effect that the company did not intend to
enter into an agreement with the union . The Board's
conclusion is particularly illuminating. It stated (at 1318):
"Although under some circumstances an employer's
statements away from the conference room may be utilized
to explain otherwise ambiguous conduct at the bargaining
table, this is not such a case . Here the Respondent's
bargaining conduct does not appear to have been ambigu-
ous in any way. As the record in our view establishes
clearly the Respondent's good-faith bargaining at the
bargaining table , we find no basis for concluding on the
strength alone of the Respondent's statements away from
the bargaining table that its otherwise lawful bargaining
conduct was converted into a violation of Section 8(a)(5)."
That no fording of bad faith bargaining can be made in
the instant case follows a fortiori from Baldwin. According-
ly, and aside from the fact that I do not believe this issue is
really in the case, I do not find that Respondent's away-
from-the-table conduct could conceivably give rise to a
violation of its duty to bargaining here, and reject this
contention of the General Counsel and the Union.
F. The Nature of the Strike
Having found no unfair labor practices in this case, I
necessarily could not find that the April 2, 1972 strike was
ever converted to an unfair labor practice strike . Even if
some of the particular allegations of the complaint had
been unfair labor practices, however, with a number of key
issues remaining unresolved up to and including the last
bargaining session on January 28, 1974, with the last unfair
labor practice alleged to have occurred on April 1973, I
could not possibly have found , absent evidence to
demonstrate some connection between the assumed unfair
labor practices and the continuation of the strike, that the
strike was an unfair labor practice strike . The Board, after
all, has stated many times that an employer 's unfair labor
practices "do not automatically convert a strike into an
unfair labor practice strike . Such conversion will be found
only where there is proof of a causal relationship between
the unfair labor practices and the prGngation of the
strike." Anchor Rome Mill, Inc. 86 NLRB 1120, 1122
(1949). See also Romo Paper Products Corp., 208 NLRB 644
(1974).
For all the above reasons, I find that the General
Counsel has not shown that Respondent violated the Act.
CONCLUSION OF LAW
The evidence does not establish that Respondent
engaged in the unfair labor practices alleged in the
complaint.
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER28
The complaint is dismissed in its entirety.
as In the event no exceptions are filed as provided by Sec . 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings , its findings , conclusions , and Order , and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.