Shoreline Enterprises of America, Inc.

National Labor Relations Board - Board Decisions

May 16, 1957

117 N.L.R.B. 1619 (N.L.R.B. 1957)

SHORELINE ENTERPRISES OF AMERICA, INC. 1619
Shoreline Enterprises of America , Inc. and International Union
of United Brewery, Flour , Cereal , Soft Drink and Distillery
Workers of America , AFL-CIO. Case No. 12-CA-9 (formerly
10-CA-0532). May 16, 1957
DECISION AND ORDER
On June 5, 1956, Trial Examiner Arthur Leff issued his Interme-
diate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Interme-
diate Report attached hereto. Thereafter, the Respondent and the
Intervenors filed exceptions to the Intermediate Report and support-
ing briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the Respondent's and Intervenors' exceptions and
briefs, and the entire record in this case, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations with the
following addition and modification.
1. Respondent excepts to the Trial Examiner's refusal to permit
litigation of the Charging Union's compliance with Section 9 (h) of
the Act and his revocation of various subpenas by which Respondent
sought to secure evidence relating to this issue.' In a recent decision,
Crenshaw's, Inc., 115 NLRB 1374, the Board found the Union to be
in compliance with the filing requirements of the Act. Respondent
makes no contentions in the instant case which were not considered and
rejected by the Board in the Crenshaw's case; we find no merit in
Respondent's contentions relating to the Union's compliance status for
the reasons stated in that case. The Board is administratively satis-
fied that the Union is, and at all times material to this proceeding has
been, in compliance with the filing requirements of Section 9 (f), (g),
and (h) of the Act. Accordingly, Respondent's request that the
complaint herein be dismissed or that the case be remanded for further
hearing on grounds relating to the Union's compliance status is hereby
denied, and the Trial Examiner's rulings on this issue are hereby
affirmed. As the Board finds, for the reasons stated in the Crenshaw's
case, that Respondent's allegations are insufficient to warrant the insti-
I Respondent',, request that the motions to revoke its subpenas, the Respondent's answer
thereto, and the Trial Examiner 's rulings thereon , be made a part of the official record
in this case is hereby gianted See NLRB Rules and Regulations , Series 6 , as amended,
Section 102 31
117 NLRB No 20t
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tution of collateral proceedings for the purpose of determining the
Union's compliance with Section 9 (h), Respondent' s motion request-
ing the institution of such a proceeding is also denied.
2. We agree that, as the Trial Examiner found, the Respondent on
and after November 18, 1955, failed and refused to meet with the
Union for the purpose of bargaining concerning wages, hours, and
other conditions of employment of the employees in the appropriate
unit, in contravention of its statutory duty to bargain in good faith
with the Union as the exclusive bargaining representative of such
employees, and in violation of Section 8 (a) (5) and (1) of the Act.
The Trial Examiner further found and we agree, that the Respond-
ent failed to comply with its bargaining obligation by granting,
unilaterally and without prior notice to or consultation with the Union,
a wage increase to its employees in the unit on November 7, 1955, find
by failing and refusing to furnish the Union with information re-
quested by the Union by letter on November 7, 1955, concerning wage
scales , job classifications, seniority of employees, vacation policies, and
health and welfare insurance covering employees in the unit. The
Board has consistently held that an employer's action in changing the
wage rates of its employees without notice to, or consultation with, the
labor organization which they have chosen to represent them is in
derogation of its duty to bargain and is violative of Section 8 (a) (5).2
It also is clear that the matters set forth in the Union's letter of No-
vember 7, 1955, concerning which the Union has requested the Re-
spondent to furnish information, are of the sort concerning which the
Board has held in various particular cases that an employer is required
to furnish information to its employees' representative upon request.3
We find therefore that by its failure to furnish the requested informa-
tion the Respondent has further violated its bargaining obligation
contrary to Section 8 (a) (5). In view of the Respondent' s failure
to furnish such information, although such refusal here appears only
in the context of the Respondent's general refusal to recognize the
validity of the Union's certification, we shall direct the Respondent
to furnish the Union with such information upon request.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent , Shoreline Enter-
2 See, for example, Arinstronq Cork Company, 103 NLRB 133, enfd. 211 F. 2d 843
(C A 5)
'See, for example, Oregon Coaet Operators Association, et al, 113 NLRB 1338, 1345,
and cases cited in footnotes 15 through 27, Atomganton Full Fashioned Hosiery Company,
115 NLRB 1207
SHORELINE ENTERPRISES OF AMERICA, INC. 1621
prises of America, Inc., Tampa, Florida, its officers, agents, successors,
and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union of
United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of
America, AFL-CIO, as the duly certified exclusive bargaining repre-
sentative of its employees in the following appropriate unit :
All production and maintenance employees, including ref rigeration
engineers, but excluding truckdrivers, all office employees, all clerical
employees, professional employees, guards, watchmen, and all super-
visors as defined in the Act.
(b) Refusing to furnish the said Union, upon request, information
concerning wage scales, job classifications, employee seniority, vacation
policies, and health and welfare insurance.
(c) Granting any wage increase or otherwise altering the terms and
conditions of employment of any employees in the above unit without
prior notification to, consultation, and, if requested, bargaining with
the Union concerning same.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-organiza-
tion, to form, join or assist, and bargain collectively through said
Union, or any other labor organization of their own choosing.
2. Take the following affirmative action which it is found will
effectuate the policies of the Act :
(a) Upon request bargain with the said certified Union as the ex-
clusive representative of the employees in the appropriate unit de-
scribed above with respect to rates of pay, wages, hours of employment,
or other conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(b) Furnish the said Union, on request, information concerning
wage scales, job classifications, employee seniority, vacation policies,
and health and welfare insurance, if any.
(c) Post at its plant in Tampa, Florida, copies of the notice 4 at-
tached hereto marked "Appendix." Copies of said notice, to be fur-
nished by the Regional Director for the Twelfth Region, after having
been duly signed by an authorized representative of the Respondent,
shall be posted by it immediately upon receipt thereof, and maintained
by it for 60 consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by other material.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of-Appeals , Enforcing an Order."
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days of the date of this Order, what steps the Respondent
has taken to comply herewith.
MEMBER JENKINS took no part in the consideration of the above De-
cision and Order.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with International
Union of United Brewery, Flour, Cereal, Soft Drink and Distill-
ery Workers of America, AFL-CIO, as the exclusive representa-
tive of all employees in the bargaining unit described below with
respect to rates of pay , wages, hours of employment , or other condi-
tions of employment , and if an understanding is reached , embody
such understanding in a signed agreement . The bargaining
unit is:
All production and maintenance employees, including re-
frigeration engineers, but excluding truckdrivers, all office
employees, all clerical employees , professional employees,
guards, watchmen , and all supervisors as defined in the Act.
WE WILL furnish said Union , upon request, information con-
cerning wage scales , job classifications , employee seniority, vaca-
tion policies , and health and welfare insurance , if any.
WE WILL NOT grant wage increases or otherwise change or alter
the conditions of work or employment of any of the employees in
the above -described unit, without first notifying , consulting, and,
if requested , bargaining with the Union in respect thereto.
WE WILL NOT engage in any acts in any manner interfering with
the efforts of said Union to negotiate for or represent the employees
in the bargaining unit described above.
SHORELINE ENTERPRISES OF AMERICA, INC.,
Employer.
Dated---- ------------ By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
- - SHORELINE ENTERPRISES OF AMERICA, INC. 1623
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed by the Union above named , herein referred to as
the Union, against the Company above named, herein referred to as the Respondent,
the General Counsel issued a complaint, dated February 14, 1956, alleging that the
Respondent had engaged in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. More specifically, the
complaint alleged that since on or about November 7, 1955, the Respondent refused
to bargain collectively in good faith with the Union as the duly certified exclusive
collective-bargaining representative of its employees in an appropriate unit, by
(a) unilaterally granting a general wage increase without prior notice to the Union,
(b) failing and refusing to furnish the Union information requested by it for the
purpose of bargaining, and (c) failing and refusing to meet with the Union for the
purpose of bargaining concerning wages, hours, and working conditions of the
Respondent's employees.
In its duly filed answer , the Respondent admitted that it is engaged in commerce
within the meaning of the Act; admitted that the Union was certified by the Board
as the exclusive bargaining representative of employees in the appropriate unit
alleged in the complaint ; admitted that it had unilaterally put into effect the alleged
general wage increase , that it had failed to furnish the information requested by the
Union, and that it had not met with the Union since November 18, 1955, but denied
that it refused to bargain with the Union in good faith or that it engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and ( 5) of the Act. In
addition , the Respondent alleged in its answer numerous affirmative defenses. The
affirmative allegations may be classified generally as follows. ( 1) Allegations in
amplification of the Respondent 's denials that the specific conduct alleged in the
complaint constituted a refusal to bargain within the meaning of the Act; (2)
an allegation to the effect that the employees in the appropriate unit rejected the
Union as their exclusive bargaining agent following the Union's certification, and
that the Respondent was therefore no longer required to bargain with it; ( 3) allega-
tions relating to conduct affecting the results of the election and attacking the validity
of the'Union's certification; (4) allegations to the effect that the Union was not at
the time of the issuance of the complaint , nor at the time of the filing of the petition
in the representation proceeding, in compliance with the filing requirements of the
Act as provided for in Section 9 (h); i (5) allegations that the Union was "fronting"
in this proceeding for the "Shoreline Negotiating Committee," the "Shoreline Or-
ganizing Committee," and the "Florida Brewery Workers Council," all claimed to be
labor organizations , the officers of which have not filed non -Communist affidavits.
Pursuant to notice , a hearing was held on May 15, 1956, at Tampa , Florida , before
Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner. The
General Counsel , the Respondent , and the Union were represented at the hearing
by counsel . Full opportunity was afforded all parties to examine and cross -examine
witnesses , to introduce evidence bearing on the issues , to argue orally upon the record,
and to file briefs and proposed findings and conclusions.
At the opening of the hearing, a motion was filed on behalf of employees Ruth
De Pratter, Vera Mobley, Billie Traina, Audrey Miller, Joe Diaz, Eva Reagan, and
Pearl Harrison for leave to intervene in this proceeding for the purpose of partici-
pating fully therein as parties. In the representation proceeding in which the Union
was certified (Case No. 1O-RC-2995) employees De Pratter, Traina, Mobley, and
'In its original answer, filed on February 24, 1956, the Respondent identified the
"officers" who it claimed had failed to file non-Communist affidavits, as the Union's re-
gional directors and members of its general executive board . The answer alleged that
those referred to were officers of the Union in that they exercised administrative and
executive powers of the Union and working control in the Union On April 11, 1956, the
Respondent filed an amended answer in which it enlarged upon its original answer, by
alleging , additionally, that "persons occupying ceitain positions identified as 'offices' in
the constitution of the Union have not been required by the Board to file non -Communist
affidavits ," and, also, that " the Union has omitted from its constitution the designation of
certain positions as offices for the purpose of evading or circumventing the filing require-
ments of Section 9 (h) of the Act ." The amended answer does not specify the offices to
which it alludes , but at the hearing Respondent 's counsel stated by way of offer of proof
that the reference was not only to the various offices referred to in the original answer,
but also to officers identified in the Union 's constitution as such.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diaz were allowed by the Board to intervene "for the limited purpose of entering
exceptions to that part of the Regional Director's report on objections which relates
to their nonparticipation in the election." The same employees were allowed to in-
tervene in this proceeding, but solely for the purpose of protecting their opportunity
to have reconsidered by the Board or reviewed by a court of appeals in an enforcement
or review proceeding, the validity of the Board's rulings on the exceptions filed by
them to the Regional Director's report. In all other respects the motion for interven-
tion was denied. See John J. Oughton et al. v. N. L. R. B., 118 F. 2d 486, 495
(C. A. 3), cert. denied 315 U. S. 797.
Also at the opening of the hearing, the General Counsel and the Union moved to
strike the affirmative allegations of the answer and of the amended answer relating
to the claimed noncompliance by the Union with the filing requirements of Section
9 (h) of the Act. The motions to strike such allegations were granted on the ground
that the allegations related to matters that were nonlitigable in an unfair labor practice
proceeding. This ruling was grounded on the authority of the Board's recent decision
in Desaulniers and Company, 115 NLRB 1025, reaffirming the "established Board
practice providing that issues which do not involve interpretation of the statutory
language may not be litigated in representation or unfair labor practice proceedings
but are to be determined administratively only in collateral proceedings." 2
The Union, but not the General Counsel, also moved at the opening of the hearing
to strike, as not properly litigable, the "fronting" allegations of the Respondent's
answer as amended. The motion was denied, and the Respondent was allowed to
adduce evidence in support of such allegations. At the close of the case, the
Respondent conceded that the evidence it adduced was insufficient to prove the
"fronting" allegations. A motion was then made by the Union to strike such allega-
tion for lack of proof. The motion was granted without objection.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Florida corporation engaged in processing and packing shrimp,
maintains its office and plant at Tampa, Florida. During 1955 the Respondent
21n. making this ruling, I pointed out that the Board, while adhering to this pr'a'ctice,
has nevertheless peiimtted, and even encouiaged, pasties to Poaid proceedings to bring
to the Board's attention matters affecting the compliance status of unions , that to assist
the pasties in that regard, the Board has adopted the policy of having its agents release
to interested parties names of designated union officess and of persons who have filed the
required affidavits , that the Board will entertain notions regarding the compliance status
of unions, will consider such infoi oration as may be submitted in deter mining whether a
situation warrants further investigation, and that if the need therefor is shown, the
Board will conduct a hearing in which the issue can be heai d and deter mined
The Respondent declined to state at the healing whether it intended to move the
Board to initiate an administrative investigation of the compliance matter alleged in
its affirmative defenses
Concerning the compliance status of the Union, the Trial Examiner has been adminis-
tratively advised by the Board's affidavit compliance chief, based upon an examination
of the compliance records on file, as follows
This union has been in full compliance with 9 (f), (g), and (h) of the Act since
January 1, 1955, with no lapses, based on our requirements as regaids officers
("constitutional test") which entails the filing of affidavits by the President, the
Director of Organization, the Secretary-Treasuier and the Coordinator of State
Councils
By Foim NLRB 1080, dated Februaiy 13, 1956, this union of its own volition
supplied us with non-Communist affidavits for regional directors-five in number,
and general executive board members-ten in number. Each of these latter affidavits
contained an accompanying statement to the effect that the signing of the affidavit
was not to be taken as an admission by the signer that he is an officer of the inter-
national union , but that the affidavit was being presented solely for the purpose of
preventing repercussions if some court should later hold that the union was not in
compliance because it had not filed
Although we accepted the additional affidavits referred to above, our interpretation
of the constitution under the Board's "constitutional test" remains as it had been,
and we still require only the four persons named as officers in the constitution to
file affidavits
SHORELINE ENTERPRISES OF AMERICA, INC. 1625
shipped finished products of a value in excess of $ 60,000 from its plants at Tampa,
Florida, directly to points outside the State . The Respondent concedes that it is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of United Brewery, Flour , Cereal, Soft Drink and Distillery
Workers of America , AFL-CIO, is a labor organization admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The relevant facts
On March 21, 1955, in Case No. 10-RC-2995, the Respondent and the Union
entered into a stipulation for certification upon consent election, approved by the
Board's Regional Director for the Tenth Region on March 25, 1955. The parties
stipulated, and it is here found, that all production and maintenance employees at
the Respondent's Tampa, Florida, plant, including refrigeration engineers, but
excluding truckdrivers, all office employees, all clerical employees, guards, watch-
men, and all supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
Pursuant to the stipulation an election by secret ballot was conducted on April 4
and 5, 1955, under the supervision of the Regional Director. Following the election,
the parties were furnished a tally of ballots which showed that of the 114 ballots
cast, 58 were cast for the Union, 55 were cast against the Union, and 1 was
challenged.
On April 11, 1955, the Respondent filed timely objections to conduct affecting
the results of the election. In substance, the objections alleged that a number of
claimed coercive statements were made to employees before the election; that the
Union's election observers were paid organizers for the Union; that certain
employees were improperly denied the right to participate in the election; and that
for such reasons the election was null and void and should be set aside. In accord-
ance with the Rules and Regulations of the Board, the Regional Director conducted
an investigation and, on May 16, 1955, issued, and served upon the parties, his
report on election, objections to election, and recommendations to the Board. The
Regional Director reported that the objections did not raise substantial or material
issues and recommended that the objections be overruled and that the Union be
certified. Thereafter, the Respondent filed exceptions to the Regional Director's
report, requesting that the election be set aside or that a hearing be directed on the
issues raised by its objections. Employees De Pratter, Trama, Mobley, and Diaz
filed a motion to intervene and exceptions to the Regional Director's report. The
Board allowed the employees to intervene for the limited purpose of entering excep-
tions to that part of the Regional Director's report on objections which related to
their nonparticipation in the election, and considered such exceptions along with
the similar exceptions presented by the Respondent.
On October 26, 1955, the Board issued its Decision and Certification of
Representatives (114 NLRB 716). As more fully appears therefrom, the Board,
after reviewing the Respondent's and the Intervenors' objections to the election,
found that such objections did not raise substantial or material issues with respect
to the conduct of the election, and accordingly overruled the exceptions taken to
the Regional Director's report. At the same time, the Board certified the Union
as the exclusive bargaining representative of the Respondent's employees at its
Tampa, Florida, plant in the appropriate bargaining unit found above.
Approximately 10 days after the certification-on November 5, 1955, to be
exact-the Respondent received a petition signed by 102 employees, including 98
of the total number of 129 employees who were within the appropriate bargaining
unit . The petition read as follows:
We believe that the Union election which was held on April 4 and 5, 1955,
was not a fair election. Ruth De Pratter, Billie Traina, Vera Mobley, and
Joe Diaz wanted to vote, but were not allowed to, and Audrey Miller voted
and they didn't count her vote. All of these votes would have been counted
against the union and the union would have lost the election.
Although Ruth De Pratter, Vera Mobley, Billie Traina, Audrey Miller and
Joe Diaz have tried to prevent the N. L. R. B. from holding that the union won
this election, they have not yet been able to do so, but they are still trying.
We believe that if the union wanted to be fair, they would be willing to have
another election. We do not believe the union is the proper agent to represent
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees with you, and we, your employees, ask you not to enter into
any agreement with this union for the employees. We hereby reject the Union
as our agent.
On November 7, 1955, the Respondent announced and put into effect a general
wage increase for all employees, including those in the bargaining unit This the
Respondent did unilaterally, without giving prior notice to, or bargaining with, the
Union about the wage increase.
On the same day, the Union sent, and the Respondent received, the following
letter:
November 7, 1955.
Mr. BILLIE D. HICE,
Shoreline Enterprises of America,
Hookers Point,
Tampa, Florida.
DEAR MR. HICE: I presume that you have received as I did, notification that
this Union is the certified bargaining agent for your employees. In preparation
for negotiations with your Company will you please furnish me with a
seniority roster of your employees, present wage scales and what classifications
they cover, your vacation policy and health and welfare insurance which
covers your employees. I note in my files a letter from you, sent to your
employees some months ago, expressing the Company's inability to pay any
wage increases. If that is so, please let me know when you can make
available to me the financial data to substantiate your statement
Yours truly,
(Signed) EDWARD S. GERCHEK,
Int'l. Representative
On November 11, 1955, the secretary to the Respondent's vice president, Billie
Hice, advised the Union that Hice was absent from the city and that the Union's
request for data would be referred to him on his return A week later, on
November 18, Gerchek for the Union wrote the Respondent, acknowledging receipt
of the Respondent's letter, and also adding:
This letter is also a formal request for a meeting with you for the purpose
of entering into a collective bargaining agreement in the matter of hours, wages
and other conditions of employment for your employees for which this union
is the certified bargaining agent.
I am ready to meet with you at your earliest convenience.
On November 22, Hice's secretary wrote the Union advising it of Hice's con-
tinued absence from the city. The Respondent has not since communicated with
the Union in response to its bargaining requests. Nor has it furnished or offered
to furnish the Union with any of the information requested in the Union's letter.
The situation remained unchanged even after Hice's return to the plant about the
middle of December 1955. On January 6, 1956, the Union filed its charge in this
proceeding.
B. Analysis and conclusions
The complaint alleges that the Respondent refused to bargain with the Union
as the certified representative of its employees in an appropriate unit, by (a)
unilaterally granting its employees a general wage increase on November 7, 1955,
(b) failing and refusing to furnish the Union with the information the Union re-
quested in its letter of November 7, 1955, and (c) failing and refusing to meet with
the Union for bargaining purposes in compliance with the Union's request of
November 18, 1955. The Respondent defends mainly on the asserted ground that
it was under no legal obligation to bargain with the Union. It claims that the
Board's certification of the Union was improper, illegal, and void, and argues alter-
natively that even if valid the certification must be viewed as having lost its force
when a majority of the employees rejected the Union in their petition of November
3. Not content with contesting its legal obligation to bargain, the Respondent in
its answer goes further, and disputes that the specific conduct complained of con-
stituted in the circumstances of this case a refusal to bargain in point of fact.
The Respondent's attack on the validity of the certification is predicated upon con-
tentions urged by it and by the Intervenors in the objections to conduct affecting the
results of the election and in the exceptions to the Regional Director 's report on
such objections, as filed in the representation proceeding which culminated in the
certification. As such contentions have already been fully considered, and rejected,
by the Board in the representation proceeding , the Board 's decision in that proceed-
SHORELINE ENTERPRISES OF AMERICA , INC. 1627
ing must be viewed as the law of this case , binding upon me.3 The Respondent's
attack on the validity of the certification is consequently rejected . The Respondent's
additional argument , that it was in any event freed of any legal obligation to bargain
with the Union as a result of the employee petition dated November 3, 1955, is
clearly without merit, for reasons stated in Ray Brooks v. N . L. R. B., 348 U. S. 96.
There is no substance to the Respondent 's added contentions that , even if under
a legal obligation to bargain , its conduct did not constitute a violation of Section
8 (a) (5). The Respondent 's unilateral action on November 7, 1955, in putting
into effect a wage increase without notice to the Union , was clearly inconsistent
with the duty the Act imposed upon it to meet and confer with the statutory bargain-
ing agent concerning wage rates affecting employees in the unit? Except for the
requested financial data to substantiate the Respondent 's alleged statement to em-
ployees expressing an inability to pay wage increases , the information requested
by the Union in its letter of November 7, 1955, was clearly relevant to the intelligent
negotiation of a contract . In all the circumstances of this case , and on the basis
of established authority , it is found that the Respondent 's failure to supply such
relevant information was in derogation of the Respondent 's bargaining obligations
under the Act and violative of Section 8 (a) (5). See, Glen Raven Knitting Mills,
Inc., 115 NLRB 422; American Smelting and Refining Company , 115 NLRB 55,
and cases cited .5 No violation is found , however, on the basis of the Respondent's
failure to supply financial data relating to its ability or inability to grant wage in-
creases. Such data would have become relevant only if the Respondent in the course
of negotiations had resisted a demand for a wage increase by urging inability to pay.
Cf. N. L R. B v. Truitt Mfg Co, 351 U S 149. But that is not the situation here.
With regard to the alleged refusal of the Respondent to meet and confer with the
Union for bargaining purposes , the Respondent 's defense , that it did not violate
Section 8 ( a) (5) because it never expressly, advised the Union that it would refuse to
meet with it, appears frivolous in view of the overall position the Respondent has
taken here on its obligation to bargain . The Respondent 's letter of November 18,
1955, constituted a specific request for such a meeting, and the Union , having made
its position clear, was not required to follow up its initial request with another one
simply because the Respondent advised it that one of its principal officers was out
of town. In view of the continued failure of the Respondent to communicate with
the Union about the requested meeting even after that officer returned to town, as
well as all the surrounding circumstances , the inference is fully warranted that the
Respondent did not intend to honor the Union's request for a bargaining meeting.
Upon the record as a whole, it is concluded that at the times material herein, the
Respondent was under a statutory duty to bargain in good faith with the Union as
the exclusive bargaining representative of its employees in the appropriate unit
found above . It is further concluded and found that the Respondent has refused to
bargain in good faith with the Union as such exclusive bargaining representative,
by unilaterally granting a wage increase to its employees in said unit on November 7,
1955, without giving any prior notice to, or bargaining with , the Union concerning
such wage increase ; by failing and refusing since November 7, 1955, to furnish the
Union with information requested by the Union concerning wage scales , job classi-
fications , seniority of employees , vacation policies, and health and welfare insurance
3At the hearing, the Respondent, joined by the Intervenois, made a detailed offer of
proof in support of the allegations of the answer relating to the claimed invalidity of
the ceitification It was conceded that the offei of pioof, thus made, presented no new
matter that was not before the Board in the representation proceeding The issues
having aheady been litigated, I declined to allow introduction of testimony as to matters
contained in the offer of pioof Pittsburgh Plate Glass Go v N L R 13, 313 U S 146,
157-8 , 161-162 , Harris Langenbei g Hat Co v N L It B, 216 F 2d 146 (C A 8).
enfg 107 NLRB 961, 963 , Phillips Petroleum Co , 100 NLRB 684, 686-687, enfd. 206
F 2d 26, 30 (C A 5) ; S H Kress and Company, 88 NLRB 292, 297, enfd 194 F 2d
444, 446 (C A 6) , N L R B. v Worcester Woolen Mills Coip , 170 F. 2d 13, 16 (C A 1),
cent denied 336 U S 903 Wilson Athletic Goods Mfg Co , Inc v N L R B , 1 64 F 2d
637, 639 (C A. 7) , Allis Chalmers Mfg Co. v N. L R B , 162 F 2d 435, 440-44,
(C A 7).
4 The Respondent's answer alleged that the wage increase was granted pursuant to a
general wage plan decided upon by the Respondent in 1954, prior to the advent of the
Union. At the hearing, however, the Respondent offered no evidence to substantiate
that allegation. -
e Since the test is relevancy and not necessity, it is of course no defense to the Re-
spondent that it might have been possible for the Union to ferret out some or all of
this information fiom other sources
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covering employees in the unit; and by failing and refusing since November 18, 1955,
to meet with the Union for the purpose of bargaining concerning the wages, hours,
and other working conditions of the employees in the appropriate unit. By such
conduct, the Respondent also interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 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
connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Sections 8 (a) (1) and (5) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact, and on the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. International Union of United Brewery, Flour, Cereal, Soft Drink, and
Distillery Workers of America, AFL-CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondent's Tampa,
Florida, plant, including refrigeration engineers, but excluding truckdrivers, all
office employees, all clerical employees, professional employees, guards, watchmen,
and all supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section 9 (b) of the
Act.
3. The Union was on November 7, 1955, is now, and has been at all material
times, the exclusive representative of the employees in the aforesaid appropriate
unit for the purposes of collective bargaining, within the meaning of Section 9 (a)
of the Act
4 By failing and refusing, on November 7, 1955, and since that date, as found
in section III, above, to bargain with the Union, as the exclusive representative of
the Respondent's employees in the aforesaid appropriate unit, the Respondent has
engaged in, and is engaging in, unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
5 By interfering with, restraining, and coercing its said employees in the exercise
of the rights guaranteed to them in Section 7 of the Act, as found in section III,
above, the Respondent has engaged in, and is 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 affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication I
Sealtest, Ohio Division of the National Dairy Products Corpora-
tion I and International Union of Operating Engineers, Local
No. 821 , AFL-CIO, Petitioner . Case No. 8-RC-2855. May 16,
1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Carroll L. Martin, hearing
'The name of the Employer appears as amended at the hearing
117 NLRB No. 209.