Southern Transport, Inc.

National Labor Relations Board - Board Decisions

Dec 24, 1963

145 N.L.R.B. 615 (N.L.R.B. 1963)

SOUTHERN TRANSPORT, INC. 615•
line, and was so used. Further, the fact that pickets patrolled the
path past the Hotel entrance northward across the walkway leading
to the Restaurant's public entrance and the delivery entrance, and'
used at least one picket sign reading, in part, "This Establishment
Not Union," clearly demonstrates to me that the picketing was directed
at both the Hotel and the Restaurant.
Measuring this conduct of the Union against the fact that it is not
disputed that the Union had theretofore sought recognition from the-
Restaurant and that the Union began its picketing on the very day
it filed its disclaimer, thereby obviating the election directed by the
Regional Director among the Restaurant's employees, I am persuaded
that the Union has acted inconsistently with its disclaimers." I would,
therefore, find that there exist questions concerning representation in
both these cases and would process the petitions.
n See my dissenting opinion in Martino 's, supra.
Southern Transport , Inc. and Truck Drivers and Helpers Local'
Union No . 568, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America . Case No. 26-CA-
1489. December 24, 1963
DECISION AND ORDER
On August 20, 1963, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed a statement of-
objections and exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's statement, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
1. We find, in agreement with the Trial Examiner, that the Re-
spondent violated Section 8(a) (5) and (1) of the Act by, inter alia,
failing to meet at reasonable intervals with the Union, which was
145 NLRB No. 69.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certified on September 17, 1962. On September 20, the Union, in
writing, asked the Respondent for a meeting on September 28. Karl
Mueller, the Respondent's attorney, replied on September 25 that he
would represent the Respondent, but would be unable to meet before
October 12. At the October 12 meeting, the parties agreed tentatively
on October 31 for the next session, but Mueller notified the Union
about October 29 that he could not meet then, suggested a meeting late
the next month, and said he would call the Union later. In a tele-
phone conversation several days later, the parties discussed the possi-
bilities of virtually every date during November, but the earliest date
Mueller could meet was November 26.
At the meeting on November 26, the Union again attempted to
fix a date for the next meeting, and again Mueller was unable to do
so, but said he would call the Union. The parties agreed that in the
interim the Union would meet with the Respondent's president to
discuss insurance proposals. The Union called the president's office
a number of times during the next few weeks, and was told each time
that he was not in; he never returned any of these calls, although
requested to do so.
During December and January, Mueller was too busy with other
matters to meet with the Union, although there were some telephone
conversations. On about January 9, 1963, in one of these telephone
conversations, January 25 was set as the tentative date for the next
meeting. On January 14, the Union called Mueller's office to con-
firm this date, but Mueller was not in and never returned the call,
although requested to do so. On January 22, the Union again called
to confirm the date, but Mueller said he had other commitments for
that date, and the meeting was set for February 1.
At the February 1 meeting, when the Respondent was again un-
able to agree to a date for the next meeting, a representative of the
Union said that he was giving a 10-day strike notice. Mueller stated
that he could not meet within that period because of other commit-
ments, and the meeting ended without a further meeting scheduled.
On February 8, the Respondent requested that strike action be
deferred because of illness on the Respondent's negotiating team, and
stated that there was hope that a meeting could be arranged for the
third week in February. The Union's attorney on that same day
recommended that the strike be deferred. On February 14, the Union
wrote to Mueller that it was available for bargaining at all times.
On that same clay, a representative of Mueller notified the Union that
Mueller was out of town, and the earliest that he would be able to
meet was the first week in March. The next day, February 15, the
Union sent telegrams to both the Respondent and Mueller stating that
the Union would be available to meet on February 18, but received
telegrams in reply that because Mueller was away, there could be no
SOUTHERN TRANSPORT, INC. 617
meeting, and they would let the Union know of a substitute date. On
February 18 the Union called the Respondent's president in an at-
tempt to arrange a meeting, but he replied that he was unable to
reach Mueller. The Union called a strike on that date which the
Trial Examiner found, and we agree, was an unfair labor practice
strike.
The Union called Mueller in New York on February 21, and Mueller
agreed to a meeting sometime during the first week in March. Bar-
gaining sessions were held on March 4 and 5. At the end of the
March 5 meeting, the Union was unable to get agreement to another
date. On March 13 the Union called Mueller, was unable to get him
to agree to another date but discussed the items which the Union's
negotiator felt were preventing the parties from concluding an agree-
ment. Mueller said he would discuss these matters with the Respond-
ent and call back later that week. He did not call back, but early
the following week his brother called and said that Mueller had
spoken to the Respondent, who was adamant about the matters in
issue, but that Mueller would speak to the Respondent again when
he returned and would call the Union. Mueller did not call, and,
at the time of the hearing, no further negotiations had taken place.
It is evident , from the above summary of events and the entire
record, that there were unreasonable delays in the meetings between
the Respondent and the Union, and that these delays were caused by
the Respondent 's reluctance to schedule meetings, postponing meet-
ings, failing to return the Union's telephone calls, and unwillingness
to make another negotiator available when its attorney was unavail-
able. In these circumstances we agree with the Trial Examiner that
the Respondent failed to fulfill its statutory obligation to meet and
confer with the Union at reasonable times, in violation of Section
8(a) (5) and (1) of the Act.'
2. During the negotiations , the Respondent insisted that existing
company rules would continue in effect and that the Respondent could
discipline employees who did not comply with them. Although the
Union subsequently agreed in principle to these proposals , it requested
several times that the Respondent provide it with a copy of these rules.
The Respondent promised to furnish a copy but never did so. We
find, in agreement with the Trial Examiner, that by insisting upon
inclusion of the clauses relating to these rules while failing to furnish
the Union with a copy of them, the Respondent further violated
Section 8 (a) (5) and (1) of the Act.
3. The Trial Examiner found that on October 1 , 1962, the Respond-
ent unilaterally changed its wage rates and method of payment with-
out notice to the Union , in violation of Section 8(a) (5) and (1) of
' Exchange Parts Company, 139 NLRB 710, 713-714 ; "M" System , Inc, Mobile Home
Division Mid-States Corporation, 129 NLRB 527 , 548-549.
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. The record establishes, however, that these changes were
made pursuant to a determination by the United States Department
of Labor that the Respondent's operations were subject to the Fair
Labor Standards Act. Moreover, the method used to determine the
new rates was decided upon before the election and certification of the
Union. Accordingly, we find that the Respondent did not violate
the Act by adopting these wage changes.2 As the Union, however,
was certified before the Respondent sent the results of its mathematical
computations to the Department of Labor for final approval, and be-
fore the effective date of the wage changes, we find that the Respond-
ent's failure to notify the Union of these changes is further evidence
of its bad faith in its bargaining with the Union.'
4. Whenever the Union, during the negotiations, brought up the
-subject of wages and economic benefits, the Respondent refused to
,discuss them on the ground that the Department of Labor ruling that
the Respondent's operations were covered by the Fair Labor Standards
Act foreclosed any discussion of these matters. It is clear that the
Respondent cannot, by such a specious argument, prevent the repre-
sentative of its employees from bargaining about such basic matters
as wages and economic benefits. On this basis, we agree with the
Trial Examiner's finding that the Respondent further violated Sec-
tion 8 (a) (5) and (1) of the Act by refusing to bargain with the
Union on wages and economic benefits. We do not, however, agree
with the Trial Examiner's finding that the Respondent further
violated the Act by pleading financial inability to grant a wage in-
crease while refusing to furnish financial data, as the record does
not establish that the Respondent pleaded such inability. The record
likewise does not establish that the Respondent adamantly insisted
that job stewards at the plant have unlimited authority to bind the
Union. Accordingly, we do not adopt the Trial Examiner's finding
that the Respondent thereby unlawfully refused to bargain with the
Union.
5. The second paragraph of the section of the Intermediate Report
,entitled "The Remedy" is hereby amended by adding the following
sentence at the end of the paragraph : The backpay obligation, if any,
of the Respondent shall include the payment of interest at the rate of
,6 percent per annum to be computed in the manner set forth in Isis
Plumbing e6 Heating Co., 138 NLRB 716.
2 Cranston Print Works , 115 NLRB 537, 549.
8 Morris Harris, Anna Harms, Albert Harris and Betty Harris, Co -partners , d/b/a Union
Manufacturing Company, 95 NLRB 792, 793, footnote 5.
SOUTHERN TRANSPORT, INC.
ORDER
619
The Board adopts the Recommended Order of the Trial Examiner
with the following modifications :
1. The Recommended Order is hereby amended by substituting
for the first paragraph therein, the following paragraph :
Upon the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that Respondent,
Southern Transport, Inc., its officers, agents, successors, and as-
signs, shall :
2. The following paragraph shall be substituted for paragraph 1(d)
of the Recommended Order :
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaranteed
in Section 7 of the Act.
3. The following paragraphs 2(b) and (c) shall be added to the
Recommended Order and the present paragraphs 2(b) and (c) shall
.be renumbered as paragraphs 2 (d) and (e), respectively :
(b) Offer to all strikers, upon their application, reinstatement
to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, dis-
missing if necessary any replacements hired after February 18,
1963, to replace these employees.
(c) Make whole the said employees, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy"
as modified herein.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner W. Gerard Ryan at a hearing
in El Dorado , Arkansas, on June 24 , 25, 26, 27, and 28, 1963,1 on the amended
complaint of General Counsel and the answer of Southern Transport, Inc., herein
called the Respondent . 2 The issue litigated was whether the Respondent violated
Section 8 (a) (5) of the Act. The General Counsel argued orally and filed a brief.3
1 The original charge was filed on March 20, 1963, and an amended charge was filed on
May 9 , 1963 The complaint was issued on May 10, 1963
2The complaint was amended at the hearing as follows : Substitute for paragraphs 11
and 12 the following:
11. On or about February 18, 1963, certain employees of the Respondent ceased
work concertedly and went on strike.
12. The strike described above in paragraph 11 was caused by the unfair labor
practices described above in paragraph 10. Renumber paragraphs 11 and 12 of the
complaint as paragraphs 13 and 14 of the amended complaint.
8 At the request of the Respondent the time for briefs was extended to July 30, but it
did not file a brief.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from my observation of the witnesses,
I make the following.
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has at all times material herein, been an Arkansas cor-
poration engaged in the transportation and distribution of petroleum and petroleum
products within the State of Arkansas. During the year preceding the complaint, the
Respondent transported and distributed goods that originated outside the State of
Arkansas and which were carried into the State of Arkansas by interstate pipeline
substantially in excess of $100,000. The Respondent conceded there is no issue
with respect to interstate commerce or the jurisdiction of the Board. The Respond-
ent is now, and has been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers and Helpers Local Union No. 568, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the
Union, is now and has been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleged in substance that in violation of Section 8(a)(5) and (1)
of the Act, the Respondent has refused to bargain collectively with the Union in
that:
(a) Respondent negotiated with the Union in bad faith with no intention of
entering into a collective-bargaining agreement (the answer denied that allegation
and averred that it submitted counterproposals to the Union which if accepted would
constitute a reasonable and proper contract).
(b) By dilatory and delaying tactics the Respondent has refused to meet with the
Union at reasonable times to negotiate an agreement (the answer denied this allega-
tion and averred that the Union thwarted and impeded negotiations by changing
its chief negotiator from meeting to meeting, thereby making continuity of negotia-
tions impossible and needlessly time-consuming, difficult and abortive; the answer
further averred that union representatives did not comply with commitments to
furnish information and counterproposals and it was necessary for the Respondent
to pursue the Union in an effort to obtain such material and thereby to bring about
a resumption of negotiations).
(c) That on or about October 1, 1962, the Respondent unilaterally changed the
rates of pay of employees (the answer admitted that it changed the pay rates and
averred it was made under the insistence and threats of the wage and hour division
that the Respondent's truckdrivers be paid at overtime rates for time worked in excess
of 40 hours in a workweek and that such change was made to avoid prosecution
by that division).
(d) That the Respondent on or about March 5, 1962, pleaded an inability to pay
the Union's demands for wage increases and other economic concessions but refused
to comply with the Union's request to furnish to the Union financial data relating
to the claimed inability to pay (the answer denied that the Respondent pleaded
inability to pay and that it was requested by the Union to furnish financial data
relating to the matter of inability to pay).
(e) On or about February 1, 1963, the Respondent agreed to arbitration as the
final step of the grievance procedure but refused to incorporate that provision into
any written collective-bargaining agreement (the answer denied that the Respondent
ever agreed to arbitration as the final step in the grievance procedure and averred
that no such provision was ever agreed upon).
(f) That at all times on and after October 12, 1962, the Respondent has insisted
that the Union's job steward to be appointed under any written agreement have
unlimited authority to bind the Union (the answer denied this allegation and averred
that the Respondent submitted a written proposal to the Union which provided
substantially that the Union would give the Respondent written notice of the names
of the persons who were authorized to represent the Union and the extent of such
authority or limitations thereon, but the Union adamantly insisted on its proposal
in this regard as a condition to entering into a contract and stated that it was
required by the International Union from which there could and would be no
deviation. The answer averred that a clear-cut impasse was reached here which
has continued and still exists).
SOUTHERN TRANSPORT, INC. 621
(g) That on or about and at all times since October 12, 1962, the Respondent
proposed and insisted upon, as a prerequisite to any collective-bargaining agreement,
the inclusion of the following clause:
ARTICLE XXIV.-RULES AND REGULATIONS
Existing company rules and regulations for the government of employees
which are not in conflict with the express terms of this agreement shall con-
tinue in full force and effect until superseded by rules and regulations subse-
quently promulgated by the Company which shall not be in conflict with the
express terms of this agreement. Employees are required to abide by such rules
and regulations.
and that despite repeated demands by the Union for a copy of the said rules and
regulations, the Respondent has failed and refused to furnish the Union with a copy
(the Respondent denied that it has insisted upon the clause quoted above as the
prerequisite to any contract and states there is no compilation of such rules, but
they are generally well known by the employees and were freely discussed in the
negotiations), and
(h) Since October 12, 1962, the Respondent has failed and refused to discuss
with the Union, group insurance coverage for employees (the answer denied that the
Respondent has failed or refused to discuss with the Union, group insurance and
avers that coverage provided by the Respondent is well known and was presented
and discussed in negotiations; that the union representatives sought to have the
Respondent agree to cancel such coverage and become a party to the Union's health
and welfare plan; that the Respondent sought a meeting at which its insurance coun-
selor could be present to advice the Respondent in a comparative analysis of the
Union's plan in terms of cost and benefits and other pertinent matters, and that the
union representative agreed to such a meeting but never did meet. The answer
further averred that when the Respondent pursued the matter, another union rep-
resentative appeared at the next general bargaining session and informed the Re-
spondent that the Union would not participate or be present in any meeting at which
the Respondent had any insurance representative or counselor present, and that the
Union has persistently adhered to that position and thereby refuses to bargain and
also seeks to prevent the Respondent from choosing the persons who represent it in
bargaining in contravention of the Act, with the result that further bargaining on the
subject is at a standstill unless the Union will accept the coverage presently in effect
which it has persistently refused to do).
The Appropriate Unit
The complaint alleged, the answer admitted, and I find that all truckdrivers,
mechanics, mechanics' helpers, wash, tire, and grease men, and servicemen, excluding
all office employees, janitors, night watchmen, and supervisory employees as defined
in the Act and any other employees except those in the unit above constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
The Union's Majority Status
The complaint alleged, the answer admitted, and I find that on or about Septem-
ber 7, 1962, in a Board-conducted election,4 a majority of the employees in the unit
described above, designated the Union as their representative for the purposes of
collective bargaining and then on September 17, 1962, the Regional Director certified
the Union as such bargaining representative, and that at all times since September 7,
1962, the Union has been and is now such representative.
The Violation of Section 8(a)(5)
To ascertain whether or not the Respondent has attempted to bargain in good
faith, the state of mind of the Respondent in the matter of the negotiations with
the Union must be determined from the record.5 In determining the attitude of
4 On August 28, 1962, the Respondent entered into a stipulation for a consent election
which was approved by the Regional Director on August 31, 1962
6 N.L.R B. v. Harold Hibbard and Ben R. Stein, d/b/a Hibbard Dowel Company, 273 F
2d 565, 568 (C.A. 7) ; N L R.B. v National Shoes, Inc, National Syracuse Corporation,
208 F 2d 688, 691 (CA. 2) ; N.L.R.B, v. Fitzgerald Mills Corporation, 313 F. 2d 260,
266 (C.A 2).
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent throughout the negotiations, the background of the Respondent's
negotiators is significant. Karl Mueller, the Respondent's chief negotiator, was the
negotiator for the Employer, which was found by the Board in Exchange Parts
Company, 139 NLRB 710, to have violated Section 8(a) (5). There, the Board
held that the delaying tactics adopted in connection with the scheduling of meetings
was further evidence that the employer's purpose was to frustrate the collective-
bargaining process and avoid reaching agreement. Here, similar delaying tactics
and scheduling meetings more fully discussed infra, constitute further evidence of
the Respondent's bargaining in bad faith. Tommy Blagg, Sr., another of the Re-
spondent's negotiators, called police to disperse what he erroneously assumed to be
a union meeting of its employees in September 1962. At the time he stated to
Police Captain H. H. Higgs that the employees were trying to organize against him
About the first part of August 1962, Tommy Blagg, Jr., the third member of the
Respondent's negotiating team, evidenced his hostility to the Section 7 rights of the
employees by drawing up a list of employees suspected of union activities and
questioning employee Leonard Splawn in the company office about each of them.6
It is undisputed that from September 1962, when the Union was certified, the parties
met only on October 12 and November 26, 1962, February 1, March 4 and 5, 1963.
At the conclusion of each meeting it was the Union which attempted to seta specific
date for the next meeting, and each time the Respondent could not fix a time to meet.
For example, following the meeting on October 12, Attorney Victor H. Hess, Jr.,
on behalf of the Union, in a telephone call initiated by Mueller on or about Novem-
ber 1, sought to fix a date for a meeting in November. Hess testified that each
week, and each day in each week, was covered in an attempt to find a date for the
next meeting, but because of Mueller's other commitments, including an appearance
in Federal court and in an unfair labor practice hearing, they were unable to agree
on any date prior to November 26.
At the conclusion of the meeting on March 5, 1963, no definite date for the next
meeting could be ascertained from the Respondent. At the end of the session the
Respondent was to check its records to see if the new wage rates had resulted in
any reduction of pay and William Hays, on behalf of the Union, was to consult
further with the employees as to their feeling in the matter and promised to telephone
Mueller in the next few days. On March 13, 1963, Hays telephoned Mueller and
Mueller told him he had been unable to go over the records which he had received
from the Company. Hays told Mueller the employees were dissatisfied with what
had been negotiated to date and sought another meeting date. Mueller told Hays
he would contact him no later than Friday of that week. Mueller did not call Hays
at any time thereafter, but on one day of the following week Mueller's brother,
Harold Mueller, telephoned Hays to say that Karl Mueller was in Denver but would
be back on Friday of that week and would telephone Hays. Since then Mueller
never called Hays and no further negotiations have taken place since then.
In Exchange Parts Company, supra, the Board stated:
The Board has on a number of occasions emphasized that the duty to make
expeditious and prompt arrangements to meet and confer is a positive legal duty
which is an essential part of the obligation to bargain. [Cases cited.] There
can be no doubt but that agreement is stifled at its source if opportunity is not
accorded for discussion or is so delayed as to invite or prolong unrest or sus-
picion. Therefore, the exercise of a reasonable degree of diligence and promp-
titude in arranging meetings for the purpose of eliminating obstacles to agreement
is an obligation placed upon each party. The manner of the performance of this
obligation by the negotiator is relevant in determining whether there has been,
a good-faith discharge of this positive legal duty imposed by statute. If a given
negotiator becomes indisposed or is otherwise unable to discharge this respon-
sibility because of other commitments, it is the duty of the party involved to,
designate a negotiator who can fully discharge this obligation. [Cases cited.]
Passively waiting for the other party to make all requests for bargaining meet-
ings, protracted delays in arranging for the meetings requested by the other
party, and failure to advise as promised when another meeting could be ar-
ranged, are variations of negative conduct which has been held by the Board
and courts to impede the bargaining process and otherwise frustrate negotiations
so as to evidence a lack of regard for this aspect of the bargaining obligation.
[Cases cited.]
O Calling the police by Tommy Blagg, Sr., and questioning ^Splawn by Tommy Blagg, Jr,
are considered only as background evidence and were not alleged as unfair labor practices
in the complaint.
SOUTHERN TRANSPORT, INC. 623
Accordingly I find that under the circumstances herein the Respondent did not
meet and confer with the Union at reasonable times and intervals in violation of
Section 8(a) (5) and (1) of the Act.
On October 1, 1962, the Respondent made effective changes in wage rates without
notice to, or consultation with , the Union? The Respondent called as a witness
Attorney J. V. Spencer who testified that on or about October 1, 1962, the Respond-
ent changed the method of paying its drivers from straight pay for all hours worked
to time-and-one-half for all hours worked over 40 per week, and that this was done
to comply with the Fair Labor Standards Act. In so doing the rates of pay were
reduced from 10 cents to 8 cents per loaded mile for the first 40 hours. As a result
some drivers received less overall pay than before, while other drivers received more.
It is undisputed that the Union was never notified of these changes prior to their
institution. At the first negotiation session on October 12, 1962, William Hays,
spokesman for the Union , protested the unilateral change in wage rates and
demanded that the old wage scale be reinstated . That demand was continued
throughout following negotiation meetings but Respondent refused , offering as an
explanation that the new wage formula was adopted at the insistence of the Wage and
Hour Division. That defense is without merit. The General Counsel called as a
witness Nathan Rachel, a trial attorney in the Office of the Solicitor in the Department
of Labor, who testified that the Department of Labor never participated in the
creation of the new wage structure but merely had approved it as one which would
comply with the Fair Labor Standards Act. Further, there were no legal issues
regarding coverage of the Respondent under that act after October 1, 1962, as
Rachel's testimony is undisputed that on October 1 the Respondent agreed to comply.
It is well settled that rates of pay and methods of payment are mandatory subjects
of bargaining and that an employer must notify and consult with the bargaining
representative before changing them. Phelps Dodge Copper Products Corporation,
101 NLRB 360. It is also well established that the fact that an employer is required
to comply with the Fair Labor Standards Act does not privilege the employer to make
unilateral changes in the wage rate and method of payment of its employees.
W. E. Stewart and Lela Stewart, d/b/a Stewart Oil Company, 100 NLRB 4, 6.
Accordingly, I find and conclude that the Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally changing the wage rates and method of payment
of its employees without notice to the Union.
The Respondent further refused to bargain with the Union on wages and economic
items by stating on several occasions in bargaining sessions that until it was suc-
cessful in resisting coverage under the Fair Labor Standards Act, it could not change
its new wage structure . At one time Karl Mueller asked the Union to aid the
Respondent in resisting Fair Labor Standards Act coverage as a prerequisite to
bargaining on economic matters.
In its counterproposal of November 26, 1962, the Respondent proposed that the
Company's rules and regulation would remain in effect and that violation of these
rules would be cause for discharge . On November 26, and at subsequent meetings
wherein this subject arose, the Union requested a copy of the rules by which the
employees would be bound and violations of which would be cause for discharge.
The Respondent adamantly insisted upon its proposal and promised to supply the
Union with these rules , but up to the time of the hearing herein had not done so.
By its insistence upon such proposals , the Respondent made the rules an unresolved
subject of bargaining and by making no diligent effort to supply the Union with the
requested information , even though it never expressly refused to do so, it thereby
violated Section 8(a) (5) of the Act.
Another instance of the Respondent's refusal to bargain in good faith is that
after it had pleaded its financial inability to pay a wage increase , it refused to
disclose financial information to support its position when requested by the Union.8
An employer does not bargain in good faith when he refuses to disclose financial
information after professing financial inability to pay a wage increase. In deter-
mining whether the obligation of good -faith bargaining has been met , the Board
has a right to consider an employer's refusal to give information about its financialstatus. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 152.
7An employer violates Section 8(a)(5) and (1) of the Act by effecting a change in
wages or other terms or conditions of employment without first affording the union repre-
senting his employees an opportunity to negotiate concerning the change . N L.R.B. v.
Benne Katz, etc., d/b/a Williamsburg Steel Products Co , 369 U S. 736
8 Although the Respondent denied that it ever pleaded financial inability to pay, I find
that it did on the testimony of William Hays, which I credit.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further evidence that the Respondent did not meet the obligation of good-faith
bargaining is its adamant insistence in oral discussions that job stewards have
unlimited authority to bind the Union in his dealings with management. These
discussions stemmed from the Union's proposal which outlined the functions of
job steward which were necessarily limited so that drastic action such as strikes or
changes in policy could only be taken by the higher officials of the Union. Tommy
Blagg, Sr., insisted that the job steward have unlimited authority as Blagg did not
want to have to call Shreveport, Louisiana, all the time (referring to the local union
office which was in Shreveport, about 95 miles from El Dorado, Arkansas). Thus
the General Counsel contends, and I agree, that the Respondent's purpose was to
deal only with the job steward in all labor matters without being bound to meet
and deal with the professional representative of the Union, such as the situation
violative of Section 8(a)(5) presented in American Vitrified Products Company,
127 NLRB 701, 717, where an employer demanded that the grievance committee
contain no nonemployees (and thus no professional bargaining representatives).
The record shows, in addition to the conduct pointed out above, that the Re-
spondent also engaged in other conduct which supports an inference that the
Respondent engaged in mere surface bargaining with no intention of entering into
a collective-bargaining agreement. In the Respondent's counterproposals, its
management-rights clause if accepted by the Union would have left the Respondent's
right to fire employees and unilaterally to change working conditions unaffected.
Similarly, if the Respondent's proposals concerning grievance and no-strike pro-
visions were accepted, no representative of the employees would have any voice in
settling a grievance. If no satisfactory adjustment of the grievance was made by
the Respondent, management and the Union would meet to "discuss" methods of
disposing of the grievance which methods might include arbitration. Such proposal
is obviously mere form for in reality the Respondent was proposing that it be bound
by nothing that it did not already practice; and while such proposals under ordinary
bargaining conditions may be explained as forming the basis for further discussion,
the Respondent here would not budge from its proposals in any particular even to
the last day of negotiations. Here, as in N.L.R.B. v. Reed & Prince Manufacturing
Company, 205 F. 2d 131, 139 (C.A. 1), cert. denied 346 U.S. 887, "it is difficult
to believe that the company with a straight face and in good faith could have
supposed that this proposal had the slightest chance of acceptance by a self-respecting
union, or even that it might advance the negotiations by affording a basis of dis-
cussion; rather it looks more like a stalling tactic by a party bent upon maintaining
the pretense of bargaining."
In summary I find that by its dilatory tactics in its bargaining negotiations with
the Union, including but not limited to its unilateral change in wage rates on
October 1, 1962; its failure to supply the Union with a copy of its rules and regula-
tions; its refusal to furnish to the Union financial information after pleading inability
to pay an increase; and by its insistence that job stewards have unlimited authority
to bind the Union with respect to all labor management relations the Respondent
violated Section 8(a) (5) and (1) of the Act.
The Unfair Labor Practice Strike
On February 17, 1963, at a meeting of all of the Respondent's employees-Union
and nonunion-Union Representative Myers explained to them concerning the Re-
spondent's failure to meet and bargain at reasonable times and the Respondent's
failure to bargain in good faith. The employees voted to strike on February 18,
1963, and went out on strike at that date and have since remained on strike.
On the entire record I am convinced and find that the strike which commenced
on February 18, 1963, was a strike caused by the Respondent's unfair labor prac-
tices. As the record does not establish that the strikers have abandoned the
strike or are unavailable for reemployment, the strikers, upon application, are
entitled to be reinstated to their former or substantially equivalent positions.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
SOUTHERN TRANSPORT, INC. 625
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. I have found that on September 7,
1962, and at all times thereafter the Union was the authorized and exclusive repre-
sentative of the Respondent's employees in an appropriate unit for the purposes of
collective bargaining and that on and after October 1, 1962, the Respondent refused
to bargain with said representative in violation of the Act. Accordingly, I shall
recommend that the Respondent be ordered to bargain, upon request, with the
Union as the authorized and exclusive representative of its employees in the ap-
propriate unit described herein; and in the event an understanding is reached,
embody such understanding in a signed agreement.
Having found that the Respondent's striking employees are unfair labor practice
strikers and as the record does not establish that the strikers have abandoned the
strike or are unavailable for reemployment, I shall recommend that the Respondent,
upon application, offer the strikers reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and privileges
dismissing, if necessary, any employees hired after February 18, 1963, the day the
strike started, to replace the striking employees. I shall recommend that the Re-
spondent be ordered to make whole those strikers who are entitled to reinstatement
for any loss of pay they may suffer by reason of the Respondent's refusal, if any,
to reinstate them, upon request, by payment to each of them of a sum of money
equal to that which he normally would have earned as wages during the period
beginning 5 days after the date on which they apply for reinstatement and terminat-
ing on the date of the Respondent's offer of reinstatement. Such loss to be com-
puted in the manner set forth in F. W Woolworth Company, 90 NLRB 289.9
In view of the nature of the unfair labor practices found to have been com-
mitted, the commission of similar and other unfair labor practices reasonably may
be anticipated I shall therefore recommend that the Respondent be ordered to
cease and desist from in any manner infringing upon rights guaranteed to its em-
ployees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Truck Drivers and Helpers Local Union No. 568, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All truckdrivers, mechanics, mechanics' helpers, wash, tire, and grease men,
and servicemen, excluding all office employees, janitors, night watchmen, and su-
pervisory employees as defined in the Act, and any other employees except those
in the unit above; constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
4. On September 7, 1962, and at all times since that date, the Union has been
and now is the exclusive bargaining representative of all employees in the above-
described unit for the purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and conditions of employment by
virtue of Section 9(a) of the Act
5. By refusing on October 1, 1962, and at all times thereafter, to bargain col-
lectively with the Union, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Southern Trans
port, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with the aforesaid union as the exclusive
representative of all its employees in the following appropriate unit: All truck-
Sidney Seltzer and Ralph Seltzer d /b/a G & S Electric Company, 130 NLRB 961
734-070--64-vol. 145-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers, mechanics, mechanics' helpers, wash, tire, and grease men, and servicemen,
excluding all office employees, janitors, night watchmen, and supervisory employees
as defined in the Act and any other employees except those in the unit above.
(b) Refusing or failing to bargain collectively with the Union, with reasonable
notice and discussion, concerning the change in wage rates of employees within the
appropriate unit represented by the Union.
(c) Refusing or failing to bargain collectively with the Union by not meeting
for contract negotiations at reasonable frequency and with reasonable promptness.
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the above-named Union as the ex-
clusive representative of all the employees in the appropriate unit and embody
in a signed agreement any understanding reached.
(b) Post at its plant copies of the attached notice marked "Appendix." 10 Copies
of said notice, to be furnished by the Regional Director for the Twenty-sixth Region,
shall, after being duly signed by a representative of the Respondent, be posted by
the Respondent immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Twenty-sixth Region, in writing, within
20 days from the date of receipt of this Recommended Order, what steps have been
taken to comply herewith.ii
10 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order "
11 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL, upon request, bargain collectively with Truck Drivers and Helpers
Local Union No. 568, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive representative of all
employees in the bargaining unit described below with respect to rates of pay,
wages, hours of employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed agreement.
The bargaining unit is:
All truckdrivers, mechanics, mechanics' helpers, wash, tire, and grease
men, and servicemen, excluding all office employees, janitors, night watch-
men, and supervisory employees as defined in the Act and any other em-
ployees except those in the unit above.
WE WILL, upon request, meet with and bargain collectively with the above
union with reasonable frequency and promptness concerning the negotiation
of a contract.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in union or other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
A. L. FRENCH CO. 627
WE WILL offer to all strikers , upon their application , reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges , dismissing if necessary any employees hired after
February 18, 1963, to replace these employees, and we will make each em-
ployee whole for any loss of pay suffered by him as a result of our failure to
reinstate him within 5 days after his application.
SOUTHERN TRANSPORT, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify any of the strikers above referred to if presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
their application in accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 746 Fed-
eral Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161, if they have any questions concerning this notice or compliance with
its provisions.
Action Wholesale, Inc. d/b/a A. L. French Co. and International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, Local 959. Case No. 19-CA-2553. Decem-
ber 26, 1963
DECISION AND ORDER
On June 19, 1963, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of those allegations of the complaint. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report. The General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in this case, including the ex-
ceptions and brief, and hereby adopts the findings, conclusions,
145 NLRB No. 61.