Standard Trucking Co.

National Labor Relations Board - Board Decisions

Jun 18, 1970

183 N.L.R.B. 564 (N.L.R.B. 1970)

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Standard Trucking Company and Chauffeurs,
Teamsters & Helpers Local Union No. 391, and
Drivers , Chauffeurs, Warehousemen and Helpers
Local 71, International Brotherhood of Team-
sters , Chauffeurs , Warehousemen & Helpers of
America . Cases 11-CA-3883 and 11-CA-3884
June 18, 1970
DECISION AND ORDER
MEMBERS FANNING, MCCULLOCH, AND JENKINS
On February 2, 1970, Trial Examiner James T.
Barker issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in this proceeding, and
hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint be, and it hereby is,
dismissed.
' The Trial Examiner found, and we agree, that statements made by
Respondent 's agents concerning its bargaining intentions do not suffi-
ciently demonstrate that it entered into or conducted collective-bargaining
negotiations in bad faith However, the Trial Examiner did not consider
whether these same statements might not also constitute independent un-
fair labor practices A review of these incidents discloses that all but one of
the credited supervisory pronouncements occurred more than 6 months
before the charges in the instant case were filed We are precluded , there-
fore, by virtue of Sec 10(b), from finding separate violations of Sec
8(a)(1) of the Act based on statements made during the pre-10 ( b) period
One statement by Supervisor Ezelle to employee Saunders to the effect that
Respondent "would never sign a contract " did occur during the critical
period W e find, however, that this single remark is too isolated to warrant
issuing a remedial order
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: This matter
was heard at Charlotte, North Carolina, on October
9, 10, 14, 15, 16, and 17, 1969, pursuant to charges
filed in Case 11-CA-3883 on April 25, 1969, and
charges filed in Case 11-CA-3884 on April28,
1969.1 On June 30, the Regional Director for Re-
gion 11 of the National Labor Relations Board is-
sued an order consolidating cases, complaint, and
notice of hearing alleging violations of Section
8(a)(1) and (5) of the National Labor Relations
Act, hereinafter called the Act. The General Coun-
sel and Charging Parties timely filed briefs with me.
Upon consideration of the briefs and upon the
entire record in this case2 and my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a North Carolina corporation with terminals
in Greensboro and Charlotte, North Carolina,
where it is engaged in the trucking business at said
terminals. Respondent is a motor freight carrier
licensed by the Interstate Commerce Commission.
During the 12-month period immediately preced-
ing the issuance of the complaint herein, Respond-
ent derived from interstate aspects of its opera-
tions revenues which exceeded $50,000. Respond-
ent is, 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 ORGANIZATIONS INVOLVED
Chauffeurs, Teamsters & Helpers Local Union
No. 391, and Drivers, Chauffeurs, Warehousemen
and Helpers Local 71, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, hereinafter called Local 391 and Local
71, respectively, or sometimes referred to jointly as
the Unions, are admitted to be labor organizations
within the meaning of Section 2(5) of the Act, and
I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The consolidated complaint, as amended at the
hearing, alleges that the Respondent engaged in
' Unless specifically indicated otherwise , all dates herein refer to the
calendar year 1969
2 Pursuant to a motion filed by the General Counsel the transcript of the
proceeding is corrected as set forth in the Appendix [omitted from publica-
tion ).
183 NLRB No. 67
STANDARD
surface bargaining with no intention of consummat-
ing a collective -bargaining agreement with the
Unions and additionally and separately violated
Section 8(a)(5) of the Act by ( a) refusing to agree
to a realistic and meaningful arbitration clause
while insisting on a limitation of the Unions' right
to strike ; ( b) failing to make adequate counter-
proposals ; ( c) failing adequately to consider the
Unions ' proposals ; and (d ) maintaining a fixed and
adamant attitude against granting a dues checkoff.
Moreover , contends the General Counsel, Re-
spondent violated Section 8(a)(1) of the Act-and
separately manifested its lack of good faith in seek-
ing to fulfill its bargaining obligations under Section
8(d) of the Act by threatening never to sign a con-
tract and by other threats and promises concerning
employees ' strike activities . From all of the forego-
ing arises the further question of whether the April
22 strike of unit employees was an unfair labor
practice strike.
Respondent denies the allegations of the com-
plaint , and with respect to its alleged failure to bar-
gain in good faith with the Unions , asserts , in sub-
stance , that it did so throughout 17 collective-bar-
gaining sessions and that the failure of the parties to
reach agreement was caused by the Unions' own
bad-faith bargaining and by their insistence to a
point of impasse upon mandatory bargaining sub-
jects to which the Company in good faith was un-
willing to accede.
B. Pertinent Facts
1. Background facts
a. The Respondent's operations
Respondent is a short line motor carrier with
operating rights in North and South Carolina, as
well as to three specific points in the State of Vir-
ginia. Respondent operates nine terminals, but only
the Charlotte and Greensboro, North Carolina, ter-
minals are directly involved in the instant case.
T. E. Hemby is chairman of the board of
directors of the Company and Thomas Carr is pre-
sident. C. W. Hemby, cousin of T. E. Hemby, is ex-
ecutive vice president and Joseph F. Woodward is a
vice president. At pertinent times George Phillips
and Harvey Tillman have been terminal managers
at Greensboro and R. H. McKinney has been Char-
lotte terminal manager.
b. The certifications of the Unions
Pursuant to an election conducted on August 29,
1968, the Regional Director for Region 11 on Sep-
tember 9, 1968, certified Local 391 as the exclusive
collective-bargaining representative for employees
in the following described unit:
'The meetings were held on the following dates October 15 and 31,
November 19 and 20, and December 12, 1968, January 14, 15, 29, and 30,
TRUCKING CO. 565
All over-the-road drivers , local drivers,
warehousemen , maintenance employees and
dispatcher , employed at Respondent's Greens-
boro, North Carolina, terminal , excluding of-
fice clerical employees , rate and billing clerks,
OS&D clerk , salesmen , guards and supervisors
as defined in the Act.
Following a secret ballot election conducted on
or about September 12, 1968 , the Regional
Director certified Local 71 as the exclusive
representative for the purpose of collective bargain-
ing of employees in the following described unit:
All over-the-road drivers , local drivers,
warehousemen , maintenance employees,
dispatchers , the billing carrier, parts man, tire
man, and regular part-time employees em-
ployed at Respondent 's Charlotte, North
Carolina, terminal excluding_ office clerical
employees , rate and billing clerks, OS&D
clerks , chief dispatcher , casual employees,
watchmen and supervisors as defined in the
Act.
c. The bargaining preliminaries
Following an exchange of correspondence
between the Unions and Respondent, a collective-
bargaining meeting was scheduled for October 15,
1968. Between October 15, 1968, and May 27,
1969,3 17 collective-bargaining sessions were held.
In the meantime , prior to the commencement of
bargaining, Thomas Carr, president of Respondent,
had met with C. W. Hemby and Joseph Woodward
and had designated them as members of the
negotiating committee which was to conduct the
collective-bargaining negotiations on behalf of the
Company. Hemby was to serve as the principal
spokesman for the Company at the negotiations
and Hemby and Woodward were to be assisted by
R. H. McKinney and George Phillips, terminal
managers of the Charlotte and Greensboro ter-
minals , respectively. Phillips participated as a
member of the Company's negotiating committee
until January 1969 when he resigned his position of
employment with the Respondent and was suc-
ceeded as terminal manager and as a ,negotiating
committee member by Harvey Tillman. Hemby
sustained an injury between the meeting of Februa-
ry 27 and March 13 and was hospitalized until mid-
June.
Local 71 was represented at the collective-bar-
gaining negotiations principally by M. O. Hodge, a
business representative, and W. C. Barbee, pres-
ident. Bruce Blevins , secretary-treasurer of Local
391, was the principal representative of Local 391
and he was assisted in the negotiations by Ken Bow-
man. Throughout virtually all of the negotiations
Local 71 was represented by a three-man employee
bargaining committee and Local 391 by a two-man
February 26 and 27, March 13 and 25, April 9 and 18, and May 20 and 27,
1969
566
employee committee.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. The preelection letters
Prior to the elections conducted at the Greens-
boro and Charlotte terminals, respectively,
Respondent sent to unit employees letters signed by
the principal officers of the Company, T. E. Hem-
by, C. W. Hemby, and Thomas Carr. These letters
were comprised of six pages and were devoted prin-
cipally to pointing up the disadvantages of
unionization . The last page of each letter contained
the following paragraph:
If you will study this whole matter thoroughly,
we believe you will surely come to the conclu-
sion in your own good judgment:-That you
stand to lose if this Union were to get in here
and that you stand to gain by keeping it out!
e. T. E. Hemby and Lewis converse
In late August 1968, Otho Lewis, then serving as
assistant terminal manager of the Greensboro ter-
minal , conversed with T. E. Hemby, chairman of
the board of directors of Respondent. The conver-
sation transpired at the Charlotte terminal at the
general office of the Company. Hemby asked Lewis
"What the boys in Greensboro wanted" and Lewis
answered that he did not know. However, Lewis
stated that he supposed "they are looking for com-
parable rates as to other union carriers." Hemb
answered that he could not "pay those type wages
and explained that the Company only serviced a
two-state area and there had not been a recent in-
crease in the Company's tariff. Thereupon, Hemby
inquired who the " ringleaders" of the Unions were
and Lewis designated six employees by name.
Hemby wrote down the names and stated that he
would never sign a contract and that anybody who
walked off the dock would never come back to
work for him.4
f. Statements by supervision
Soon after the September 1968 election at the
Charlotte terminal, Dewey Shepherd, a dock super-
visor,5 stated to employees Alvin Watkins and John
Arant as they were conversing together, "[W]ell, I
' The foregoing is based on the credited testimony of Otho Lewis, which
is uncontradicted By his demeanor as he testified Lewis impressed me as a
credible witness, and he was convincing in his testimony both on direct ex-
amination and cross -examination to the effect that T E Hemby stated in
specific terms that he would not "sign a contract " I have considered
Lewis' testimony to the effect that after terminating his employment with
the Company and working for a time in the employ of another trucking
firm he contacted Respondent 's president seeking to be reemployed by the
Company. During the course of this conversation he informed Respond-
ent's president that he would be speaking with the secretary-treasurer of
Local 391 Lewis was not in Respondent 's employ at the time of the hear-
ing Lewis did thereafter give an affidavit to the secretary -treasurer of
Local 391 containing references to the Hemby conversation in August I
find nothing in this chain of events to warrant a conclusion that Lewis'
testimony was retributive or formulated merely to do harm to the Com-
pany
reckon you boys know you lost your 15-cent raise
by doing what you have done."'
In late September or early October 1968, Walter
Lewis, a warehousemen at the Charlotte terminal,
conversed with Harry Ezelle, whose job title was
that of supervisor. Lewis asked Ezeile what "Mr.
Hemby" thought about the employees voting for
the Union.' Ezelle answered that Hemby had said
that the employees "had messed up" by voting for
the Union and that they had "turned down a good
raise." Ezelle further stated that Hemby said he was
not going to "sign nothing. "8
2. The alleged unlawful conduct
a. Interference, restraint, and coercion
(1) The alleged threat
Strong and Hemby Converse
Employee H. T. Strong testified that on a morn-
ing in January 1969 he spoke with C. W. Hemby in
the parking lot at the terminal. Strong testified that
Hemby greeted him as he passed by Hemby's au-
tomobile. Strong testified that thereafter Hemby
stated that anyone who went on strike would be
fired and that Strong should "pass the word around
to the rest of the men that they wouldn't have any
job" if they went out on strike.
C. W. Hemby credibly denied having made these
or similar statements to Strong.
Hemby further credibly testified that after the
Unions were certified he issued instructions to the
terminal managers to convey to their supervisors
that they were not to discuss with the employees
the collective-bargaining negotiations which were
then imminent.'
(2) The alleged inducements to abandon the strike
(a) Kinley and Tillman converse
In late April, Vernon Kinley, a driver at the
Greensboro terminal , made telephonic contact with
Harvey Tillman, manager of the Greensboro ter-
minal . Kinley was on strike and initiated the
telephone call to Tillman because he was consider-
' The testimony of C W Hemby reveals that Shepherd possessed
authority sufficient to constitute him a supervisor within the meaning of the
Act
6 The testimony of Alvin Watkins with respect to this incident is un-
refuted Watkins testified that he had heard from another road driver that a
15-cent-per-hour raise was pending
Lewis did not specify the "Mr Hemby" to which he had reference
' C W Hemby denied having informed any supervisor that he would not
sign a collective -bargaining agreement T E Hemby did not testify con-
cerning this matter but there is no evidence of record to reveal that Harry
Ezelle, who appears to be a lower echelon line supervisor , would have oc-
casion to speak directly with the chairman of the board of directors con-
cerning such a matter
s As found, the certification of Local 391 issued on September 9, 1968,
and that of Local 71 issued on September 20, 1968
STANDARD TRUCKING CO. 567
ing returning to work and because he was con-
cerned over a rumor that striking drivers would be
terminated upon their return to work. Upon
reaching Tillman by telephone he spoke to Tillman
concerning these matters .1° Tillman answered, in
substance, that if Kinley decided to come back to
work there would be no hard feelings and that he
could be employed as long as his work was satisfac-
tory."
Several days later Kinley and Tillman engaged in
a conversation at a drive-in restaurant near the
plant. As Tillman was leaving the plant premises in
his automobile at the end of the workday, he ob-
served Kinley in his automobile and signaled Kinley
to follow him. They went to the drive-in and there
conversed. No one else was present. During the
conversation Kinley broached the subject of his
return to work and expressed his concern over the
possibility that the Company might employ him and
then through subterfuge discharge him merely to
get rid of him. Tillman gave him assurances against
this and stated that he would not be discharged.
Kinley inquired if there would be any difference in
his employment status and Tillman assured him that
he would return as a driver and that the only dif-
ference would be that he would receive a 15-cent-
per-hour wage increase which had been put in ef-
fect for the Greensboro drivers.
Thereupon, the conversation turned to some
suspected strike violence which the Company was
allegedly experiencing at the Greensboro terminal.
Tillman described for Kinley the nature of the
events that he said had transpired and stated that
he would like to know the identity of the in-
dividuals who were performing the acts of property
destruction which he had described. Kinley an-
swered by proffering several names.12 Tillman an-
swered that the "troublemakers" would not be
returning to work. When the conversation of some
90 minutes' duration ended, no understanding had
been reached with respect to Kinley's return to
work.13
(b) Hemby and Ratliff converse
In early May, Robert Ratliff , a warehouseman on
strike at the Charlotte terminal , spoke by telephone
with C . W. Hemby concerning his vacation check.
During the conversation Hemby asked Ratliff if he
had considered returning to work . Ratliff answered
that he did not know and asked Hemby if anything
had been done " about the contract ." Hemby an-
swered in the negative and stated that the Company
was "needing good men ." He also observed that
Ratliff and his 'brother, who was also an employee
on strike , were both " good people ." Hemby sug-
gested that Ratliff and his brother talk the matter
over . Hemby stated that the Company would like to
have them if they desired to come back.14
(c) Ratliff speaks with McKinney
Approximately 10 days later, on or about May
22, Ratliff went to the terminal office to obtain his
vacation check and while he was there he spoke
with R. H. McKinney, terminal manager. Ratliff
asked McKinney how long the strike would last and
stated that he was endeavoring to decide whether
or not to come back. McKinney stated that he
could not advise him with respect to this decision
10 Neither Kinley nor Tillman, who testified concerning this conversa-
tion , could remember with certitude whether or not Kinley made the
telephone call in person or whether a fellow employee, Tuttle, called on
Kinley's behalf
11 I have considered the testimony of Harvey Tillman and Vernon Kinsey
with respect to the foregoing and rely principally upon the testimony of
Tillman The testimony of Kinley in most salient aspects supports that of
Tillman However, i do not credit the testimony of Kinley to the extent that
it infers that his telephone call was placed to Tillman in response to an
earlier effort by Tillman to contact him , nor do I credit Kinley to the effect
that Tillman initiated the discussion of Kinley's prospective return to work
Rather, I find that this was the purpose of the telephone call to Tillman and
that Kinley , or Tuttle, as the case may be, opened the dialogue with respect
to this subject matter
'=Without identifying them as such, the names proffered by Kinley were
those of individuals whom he knew to be prominent in the union move-
ment It is clear, however, from Kinley's testimony that he had no informa-
tion connecting the individuals named with any picket line or other strike
misconduct
1S The foregoing findings are based on a synthesis of the testimony of
Harvey Tillman and Vernon Kinley I credit Kinley to the effect that Till-
man signaled Kinley to meet with him at the drive-in restaurant and I am
convinced that the principal reason that Tillman did so was because he
speculated that Kinley might be a source of insight into the identity of
strikers who were engaging in strike misconduct Thus, I find that, as Till-
man credibly testified, this issue did become a topic of conversation during
their meeting and I further find that it was in this context that names of
specific individuals were mentioned by Kinley
I do not credit the testimony of Kinley to the effect that Tillman urged
him to make his decision with respect to returning to work immediately
because within a day or two an event of significance bearing on this choice
would transpire Nor do I credit Kinley's testimony that Tillman asserted
Kinley would improve his seniority standing if he returned to work Tillman
convincingly denies having discussed the subject of seniority and when Kin-
ley did return to work he appears to have retained his prestrike seniority
standing
la The foregoing is based upon a composite of the credited testimony of
C W Hemby and Robert Ratliff While I find it probable that, contrary to
the recollection of Hemby, Ratliff inquired into the status of collective-bar-
gaining negotiations, I do not credit the testimony of Ratliff to the effect
that Hemby stated in words or substance that the Company was not going
to sign any contract For Hemby to have made such a statement would have
been contrary to what I find, upon Hemby's testimony, to have been his
policy of remaining discreet and noncommittal in his disclosures to person-
nel with respect to the subject of collective bargaining
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and stated that Ratliff would have to make up his
own mind."
(3) Other alleged indicia of bad faith
On or about April 18, Edward Sasser, a driver
who handled a peddle-run from the Charlotte ter-
minal to Gastonia, conversed with R. H. McKinney
concerning the need for an additional truck at the
Gastonia terminal. McKinney answered that he did
not have equipment available for Gastonia because
there was a greater need "in the city" than there
was in Gastonia. 16
Employee James Saunders testified that in late
September 1969 he conversed with Harry Ezelle,
described in the record as a supervisor, who stated
during a conversation concerning the strike that
"Mr. Hemby" would never sign a contract. Saun-
ders testified that he told Ezelle that Hemby would
either have to sell or sign."
b. The negotiations
(1) The meeting of October 15
The initial collective-bargaining meeting between
the parties occurred on October 15. Present
representing the Company was C. W. Hemby, R. H.
McKinney, Joseph Woodward, and George Phillips.
Representing the Unions were R. V. Durham, W.
C. Barbee, Ken Bowman, and M. O. Hodge. Prior
to the meeting there had been no exchange of
proposals or requests for information on the part of
either party.
At the outset of the meeting the Unions sub-
mitted to the Company the National Master Over-
the-Road Freight Agreement, Carolina Supplement;
The National Master City Cartage Agreement,
Carolina Supplement; and The Carolina Main-
tenance Agreement. Additionally, the Unions sub-
mitted a brochure pertaining to the central states
health and welfare plan and the central states pen-
sion plan. The company representatives examined
the materials presented by the Unions.18
After studying the documents, C. W. Hemby ob-
served that the Company was a "Carolina" opera-
tion and that for this reason he did not think that
15 1 have considered the testimony of Robert Ratliff and R H McKinney
with respect to the foregoing incident and predicate my findings primarily
on the testimony of McKinney which I credit I credit the testimony of Rat-
liff only to the extent that it is consistent with the aforesaid findings
Specifically, I do not credit the testimony of Ratliff to the effect that during
his conversation with McKinney, McKinney stated that the Company had
sold 35 trucks and there would be "that many less drivers", or that McKin-
ney stated , in this connection , that Ratliff should return to work while there
was still an opening for him McKinney denies having made these state-
ments He further testified, however, that after the picket line had been
established the Company returned certain leased units Preparatory to
returning them the Company had scraped the company name from the ex-
tenor of the unit He testified also, in substance , that the tractor units were
delivered from the terminal premises through the picket line I am con-
vinced that through rumor, or from his own personal observation from the
picket line, Ratliff became aware of the exodus of the 35 units and was con-
cerned over the implications of this in terms of his own job While Ratliff
the Company could adopt the national agreement.
The Unions asked the Company if the national
agreement could be used as a guideline and the
Company stated that it would like an opportunity to
closely consider the agreements which had been
submitted. However, Hemby asked certain clarify-
ing questions with respect to references in the con-
tract to "moonlighting," jury duty, military leave,
and reclassification of drivers. Additionally, Hemby
expressed doubt that the Company could agree to
the provision in the national agreement relating to
transfer of company title and interest. Hemby
stated that the Company would not want such a
provision in an agreement.
During the first meeting the question of the
workweek was broached and Durham, speaking on
behalf of Local 391, stated that he would not be ad-
verse to a 45-hour workweek. Further, there was
some discussion of the Unions' dental and health
insurance plans. The Company had in its possession
at the meeting a booklet containing provisions of
the plan and some of the provisions of that plan
were compared with counterpart provisions in the
Unions' plan.
The Company requested an opportunity to
further consider the national agreement submitted
to it by the Unions at the first meeting and the
meeting terminated with a tentative agreement on a
date for the next meeting.
(2) The meeting of October 31
At the outset of the meeting the application of
the national agreement to the operations of the
Company became the topic of discussion. Barbee,
speaking on behalf of the Unions, observed that the
first 38 articles of the national agreement dealt
with people" and that the agreement could be
adapted to the Company as a single employer.
Hemby stated, however, that because the Company
was a short line carrier with operating rights limited
essentially to the two-state area of the Carolinas,
the Company would prefer to have a contract
"separate" from the master agreement.
In further discussion of the provisions of the
master agreement , the Company stated its objec-
tion to any provision relating to the transfer of
may have made reference to this matter during his discussion with McKin-
ney, I credit McKinney's denial that he made any statements implying a
threat to the tenure of Ratliff as a warehouse employee
is The foregoing is based on the credited testimony of R H McKinney I
do not credit the testimony of Edward Sasser that McKinney stated, in ad-
dition to the foregoing, that he understood that the employees were going
to strike and that if they did so the Company would "just close up " and that
there would be "no union " McKinney , terminal manager , testified con-
vincingly that after the Union's certification he followed a strict policy of
not discussing the Union or collective -bargaining negotiations with em-
ployees His denial of the statements attributed to him by Sasser was con-
vincing
" Saunders did not testify whether Ezelle's alleged conversation had
been with T E Hemby or with C W Hemby
is The company representatives were not familiar with the contents of
the document submitted to them by the Unions and had had no prior bar-
gaining relationship with the Unions or the Teamsters international
STANDARD TRUCKING CO.
company title and interest and raised some
questions concerning the application of seniority
provisions of the contract in light of the cross-ter-
minal bidding seniority practices which prevailed at
the Company. The Company indicated its desire to
continue this practice while the Unions stated their
preference for terminal seniority. There followed a
discussion of the effects of the application of com-
panywide seniority upon transfers, vacations, and
job bidding rights. It was tentatively agreed that a
seniority proposal different from that contained in
the master agreement would be drafted.
During this meeting the Union also stated its
preference for a 3-year agreement. The Company
did not state its position on this matter.
On behalf of the Unions, Barbee suggested that
the meeting be adjourned to accord the union
representatives an opportunity to draft a proposal
which would reflect the parties' discussions to this
point. The Company agreed to the adjournment
and the meeting terminated.
(3) The meeting of November 19
The third collective-bargaining meeting between
the parties transpired on November 19. At the out-
set of the meeting the discussion turned to the
Unions' written proposal containing a preamble and
45 articles. is The proposal had been submitted to
the Company by mail on November 7.
At the suggestion of the Union it was agreed that
the parties would consider the Unions' proposal
item by item and when agreement was reached on a
section the working draft containing that section
would be initialed and dated. Thereupon, the
parties proceeded in the agreed-to manner.
At the outset of the discussion the preamble and
the recognition clause contained in section 1, arti-
cle I, were agreed to as set forth in the Unions'
proposal. Section 2, article I, relating to transfer of
company title or interest was then discussed. The
Company stated its objections to the inclusion of
such a provision in the agreement. Hemby stated
that the inclusion of this provision in any agreement
might prove to be a hindrance to a potential sale
of the Company or merger. This item was passed
and the parties then discussed article II relating to
checkoff of dues. The Company stated its objec-
tions to a checkoff provision asserting that the ef-
fect of this provision would be to reduce the take-
home pay of employees which would, in turn,
generate a demand for higher wages. The Unions
responded that any dues deduction made under this
provision would have to be authorized as a result of
a voluntary assignment on behalf of the employees
and without such an assignment no deduction could
be made. No agreement was reached on this article.
19 A subject outline by article is contained in Appendix B [omitted from
publication]
569
Article III, section 1, defining the scope of the
agreement was next discussed. The Company
inquired as to the import of the reference to 75-
mile airline radius contained in the provision and
the Unions explained that in addition to covering
those job classifications specifically referred to in
the agreement, the agreement would encompass
drivers dispatched on runs, referred to as peddle-
runs, up to a 75-mile radius of the terminal.20 The
Company explained that due to the nature of the
commodity being delivered, or the urgent need of a
customer for a given commodity, dispatches are
sometimes made beyond the 75-mile zone.
The parties further discussed the reference in the
proposal to the 15-mile radius defining the city runs
and pointed out that in emergency situations it
sometimes became necessary to dispatch a city
driver on a peddle-run or vice versa.
There followed extensive discussion with respect
to the impact of this section of the Unions' proposal
upon actual operating eventualities that might arise.
Further, in connection with this section, the Com-
pany pointed out that at its Charlotte and Greens-
boro terminals not all of the classifications speci-
fied in the section were actually manned. In
this latter regard the Unions stated that the section
was worded in a manner to be inclusive of all clas-
sifications likely to be employed. No agreement was
reached on this proposed section.
Section 2 of the scope article was next discussed
and questions were raised with respect to the
limitation upon the interchange between over-the-
road drivers, city drivers, and dockworkers. No
agreement was reached on this section and section
3, article III, was next considered.
This section which, in substance, precluded su-
pervisory personnel from performing work covered
by the agreement was discussed in some detail by
the parties. The Company inquired into the limita-
tion that the section might impose upon its utiliza-
tion of supervisory personnel for unloading
merchandise from an interline carrier arriving at
the terminal at a time when no dockworker was on
duty; and the utilization of a shop foreman to road
test a vehicle being repaired. Following this discus-
sion this section was agreed to.
Section 4, article III, which provided for a max-
imum of 30 days' trial or probationary period for
casual employees was discussed. The Company
stated that it presently utilized a 90-day probationa-
ry period and stated that the shorter 30-day period
provided for in the Unions' proposal would not ac-
cord it a sufficient period of time to evaluate the
work of an employee. The Unions responded that a
30-day period of time was sufficient, with the possi-
ble exception of mechanics, and suggested a 60-day
probationary period for the latter classification. No
20 A peddle -run is a dispatch or run which operates outside the city limits
of the terminal location accomplishing pickup and delivery of freight,
usually within a radius of 75 miles
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement was reached on this section.
Section 5, article III, was discussed. This provi-
sion which extended to the Unions equal opportuni-
ty with "all other sources" to provide the Company
with suitable applicants for employment was agreed
to by the parties.
Section 6, article III, was discussed. This section
provided that part-time employees employed on a
regular and continuing basis would be covered by
all of the provisions of the agreement. The Com-
pany stated that it had been its past practice not to
extend fringe benefits to part-time employees and
.that it would prefer to have this procedure con-
tinued. The Unions took the position that part-time
employees had been included in the bargaining unit
and should be accorded all of the benefits accruing
under the agreement . This section was not agreed
to at this meeting.
Article IV dealing with the subject of stewards
was discussed in its entirety. The Company stated
that it had no objection to the article which, in its
overall terms, defined the duties, authority, and job
rights of stewards, but the Company raised some
question as to the inclusion in the article of the
reference to the collection of dues by the stewards.
It was agreed to that the subsection containing this
latter reference would be left open but that the
balance of the article was acceptable.
The parties next considered article V dealing
with seniority rights. Section 1 of the article provid-
ing that "seniority rights shall prevail" was agreed
to. The parties then discussed section 2 which
specified bases for terminating accrued seniority.
Included among the bases set forth was a layoff of
more than 3 years and an absence without report
for 72 hours after being relieved from duty. The
Company stated that in both instances the time
specified was too long. In connection with the 72-
hour provision the Company described the poten-
tial disruptions and delays resulting from the failure
of drivers to call in or report for work and charac-
terized the 72-hour proviso as a "license for a 3-day
pass ." The Company requested that the time period
be reduced to 48 hours. Additionally it requested
that the 3-year layoff reference be modified to
specify a 2-year layoff provision. This was taken
under advisement and the parties then turned their
attention to sections 3 and 4, article V. These sec-
tions dealt with the application of seniority and the
maintenance of wage scales in the event of a
merger of the Company with another common car-
rier . These sections were agreed to by the parties.
Section 5 of the seniority article was the next
topic of discussion by the parties. The proposed
section read as follows:
Whenever any part of the existing operation is
transferred to any new location, either through
opening a new terminal or a new branch, the
provisions of this Agreement shall apply to the
employees at the new terminal or branch. If
the new terminal or branch is not a removal
but a new and additional operation that does
not affect the existing operation then in that
event this Agreement shall not become effec-
tive at the new operation.
The Company sought the Unions' explanation of
the meaning and the impact of this proposal. The
Unions offered their interpretation of the proposal
as drafted and the Company stated that because of
changes in freight flow and the economic complex-
ion of a given service area there arose need to
transfer a portion of an operation from one ter-
minal to another. The application of this proposal
to such operational exigencies was not resolved
and this section was passed.
Section 6, article V, which provided for the post-
ing of a seniority list and the settlement of con-
troversies pertaining thereto through resort to the
grievance procedures, was discussed and agreed to
by the parties. However, the agreement was made
sub et to a modification in language which was to
be later supplied.
Section 7, article V, which had the effect of ap-
plying company seniority only to vacation rights,
was discussed. The Company stated that it had
been its practice to apply company seniority for all
purposes. No agreement was reached on this sec-
tion and it was marked "hold." Section 8, article V,
which defined terminal seniority, and instances
wherein it would be applied, was passed pending a
determination by the parties whether company
seniority or classification seniority would be applied
under the agreement. Considered next was section
8, which in substance defined the extent to which
the Company could affect substantive changes in a
job to meet operational demands without opening
the job to bidding under this section. This invoked
some discussion but the matter was not resolved at
this meeting.
Section 9, article V, relating to the applicability
of seniority to city cartage and maintenance clas-
sifications was discussed and agreed to as contained
in the Unions' proposal.
Sections 10 and 11 which, respectively, related to
the application of seniority in the event of a reduc-
tion in force or a vacancy were discussed but no
agreement was achieved with respect to them.
Similarly, section 12 which provided for six
separate terminal seniority groupings was discussed
but no agreement was achieved with respect to it.
The parties next turned their attention to a
discussion of article VI dealing with maintenance of
standards. In response to the Company's request for
an explanation as to the intendment of section 1,
the Unions responded that it was the purpose of the
section to require the Company to maintain in ef-
fect incidental conditions of employment which
were not specifically spelled out in the agreement.
In extending this explanation to the Company, the
Unions specified coffeebreaks, rain gear and
uniforms furnished by the Company, vending
machines, and handtrucks as items to be encom-
STANDARD TRUCKING CO.
passed within this section of the proposal. The
Company stated that there were certain things that
it knew it was providing for the employees which
could be defined as being included in the section as
it was presently drafted. However, the Company
was unwilling to accept the section in its draft form
and no agreement was reached with respect to it.
However, section 2 which bound the Company
not to enter into any agreement or contract with its
employees in derogation of the terms of the agree-
ment was agreed to by the parties.
Further, the first of the two paragraphs compris-
ing section 3 dealing with workweek reduction was
agreed to. The paragraph upon which agreement
was reached pertained to the requirement that the
Company comply with any applicable provisions of
the Fair Labor Standards Act and to do so in a
manner which would result in no substantial penal-
ty to the employees or to the Company.
The parties were unable to agree to the second
paragraph of section 3 which provided that in the
event the parties could not agree to a solution aris-
ing under the first paragraph of the section either
party would be free to resort to "lawful economic
recourse." This paragraph was passed. Section 4,
article VI, pertaining to new equipment was agreed
to as contained in the Unions' proposal. This
proposal had the effect of protecting the Unions'
bargaining rights over rates of compensation for
work performed in connection with new equipment
or new operations not covered by the agreement.
The discussion of the parties then turned to arti-
cle VII dealing with grievances and disputes. This
article, as contained in the Unions' proposal, was
comprised of seven separate sections. Section 1 was
agreed to by the parties. This section committed
the parties to refrain from resort to strikes or
lockouts until "all possible means of settlement"
provided for in the agreement were invoked.
Similarly, section 2 of article VII was agreed to.
This section defined the Union's responsibilities for
the acts of its agents, set forth a limitation upon the
Unions' legal liability in the event of unauthorized
strikes, slowdowns, walkouts, etc., and provided for
discharge and disciplinary rights on the part of the
Company in the event of unauthorized employee
actions.
Section 3, article VII, was next discussed and the
Company stated its objections to the reference to
"arbitrator" which was contained therein. The
Company was asked if it objected to the principal
of arbitration and C. W. Hemby, speaking on behalf
of the Company, stated that it did. Hemby stated
that, while the Company was in agreement with the
grievance procedures outlined in the first two para-
graphs, it preferred a grievance procedure which
did not call for arbitration. Hemby stated, in this
21 I do not credit the testimony of Joseph Woodward to the effect that
Barbee stated , in substance , that the Unions desired an arbitration provi-
sion to "take the burden off" the Unions This reference was not contained
in his pretrial affidavit relating to the bargaining negotiations and I am con-
571
connection, that he did not feel that a disinterested
party should be making decisions with respect to
matters about which he had no insight or familiari-
ty. W. C. Barbee, speaking on behalf of the Unions,
stated that an open-end agreement without a final
arbitration provision could leave their party "open
to any lawful economic recourse," such as strikes,
lockouts, and tieups.21
The meeting terminated at this point.
(4) The November 20 meeting
Continuing to use the Unions' proposal as the
basis for their discussion, the parties at their meet-
ing on November 20 commenced their discussion
with article VIII and their deliberations at this
meeting carried them through a consideration of all
of article XXXIII and a portion of article XXXII.
During the course of the meeting the parties
reached agreement on article VIII, dealing with
protection of rights, including a picket line protec-
tion clause; a hot cargo clause; a struck goods
clause; and a clause governing grievances filed in
connection with violations of the article. Similarly,
articles X through XVII dealing, respectively, with
the subject of bonds; passengers; compensation
claims; military service; equipment, accidents, re-
ports; posting of agreements; union cooperation;
and union activities were all agreed to. Addi-
tionally, articles XIX through XXIV covering the
subjects of separation of employment; inspection
privileges; separability and savings clause;
timesheets and timeclocks; emergency reopening;
and piggy-back, barge, etc., were agreed to by the
parties. Also agreement was achieved at the
November 20 meeting on articles XXVI through
XXIX dealing with employee bail; leave of absence;
discharge, suspension, or other disciplinary action;
and examination and identification fees. Agreement
was also achieved on the first paragraph of article
XXXI dealing with pay periods. The second para-
graph of the Unions' proposal with respect to this
article was withdrawn by the Unions.
In discussing article IX, Hemby, speaking on be-
half of the Company, stated that it was the Com-
pany's practice, in the event a driver was involved
in an accident causing damage to company equip-
ment, to permit the employee to pay for the
damage so as not to disqualify him from obtaining a
safety award. In some instances, a safety award
amounted to as much as $100. The loss or damage
provision of article IX, as contained in the Unions'
proposal, precluded the Company from charging a
driver for loss or damage unless proof of gross
negligence was shown. Consideration of this provi-
sion gave rise to a discussion of the means of
disciplining a driver for accidents. The Unions took
vinced that the statement which Barbee made concerning the desirability
of arbitration was in the context of an explanatory statement urging the
merits of arbitration as a means for avoiding union-called strikes and com-
pany lockouts
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the position that layoff would constitute sufficient
disciplinary action . No agreement was reached on
this item and it was passed.
The discussion that developed with respect to ar-
ticle XVIII , entitled "Owner-Operators ," at the
November 20 meeting disclosed that at the Greens-
boro terminal the Company utilized no owner-
operators . However , at the Charlotte terminal
owner-operators were used and it was agreed
between Local 391 and the Company that the
Unions would submit language covering this matter
at a future time.
The parties reached agreement on section 2, arti-
cle XVIII , as contained in the Unions ' proposal.
This section specified that the Company would not
require "as a condition of employment that any em-
ployee purchase a truck , tractor , tractor-trailer or
other equipment."
In connection with the discussion of article XXV
dealing with subcontracting , the Company ex-
plained that the Company did not utilize subcon-
tracting . Hemby stated that the only instances of
subcontracting had been in connection with the en-
forcement of the warranty provisions covering new
equipment purchased by the Company.
However , with respect to this provision, the
Company raised the question as to the applicability
and effect of the term " leased " as contained in the
proposed language covering subcontracting, upon
the Company s practice at the Charlotte terminal of
utilizing owner-operators . At the request of the
Company, this article was left open.
Partial agreement only was reached at the
November 20 meeting with respect to article XXX,
dealing with lodging . Article XXX in its original
form was comprised of five paragraphs. The parties
agreed to three paragraphs of the article and one
paragraph was deleted at the Company 's request.
The final paragraph of the article was passed over
because of company objection to the requirement
contained therein that construction of new com-
pany-owned dormitories be subject to approval by
the "Carolina Bi-State Committee ." It was the
Company 's position that the Bi-State Committee
had no role in the relationship between the Com-
pany and the Union.
The discussion of article XXXII , paid-for time,
which transpired near the end of the November 20
meeting , generated a suggestion by W. C. Barbee,
on behalf of the Unions , that as the subject matter
of this article was essentially monetary in nature it
be deferred . It was Barbee 's suggestion that all
monetary items be discussed at one time . The Com-
pany agreed to the suggestion.
However , the article was discussed in general
terms and the company representatives raised cer-
tain questions with respect to the effects upon
operating procedures of certain provisions con-
tained in this article . Hemby pointed out with
respect to section 4 dealing with layovers that the
Company did not presently pay drivers for delays,
which were in his opinion adequately covered by
the mileage rate allowance. In conjunction with the
general discussion, the Unions raised questions con-
cerning the Company's dispatch procedure. M. O.
Hodge, on behalf of the Unions, inquired if the
dispatch procedure had been reduced to writing.
Joseph Woodward, on behalf of the Company,
stated that so far as he was aware there were no
written dispatch procedures and that no one in-
dividual in the Company was possessed of informa-
tion concerning all facets of this procedure.
With article XXXII still under discussion the
parties agreed to meet again on December 12 and
the meeting terminated.
(5) The meeting of December 12
The discussion at the meeting of December 12
commenced with a consideration of items con-
tained in article XXXII. Sections 6, 7, and 8 of arti-
cle XXXII covering pay for deadheading, bobtail-
ing, and time off were discussed and agreed to. The
discussion then turned to article XXXIII, entitled
"Vacations." The article as contained in the Unions'
proposal was comprised of six sections. In essence,
section 1 provided that an employee who worked
60 percent or more of the total working time during
any 12-month period would receive paid vacations
on the basis of 1 week after 1 year's employment; 2
weeks after completion of 3 years' employment; 3
weeks after 10 years; and 4 weeks after 15 years.
Sections 2 and 3, article XXXIII, dealt with formu-
las for computation of eligibility.
With respect to the length of the vacation, the
Company responded that it was its present practice
to give 1 week's vacation after 1 year of employ-
ment; 2 weeks after 3 years' employment; and 3
weeks after 15 years. The Company stated that it
was not favorably disposed toward the granting of 4
weeks' vacation.
There followed a discussion of sections 2 and 3,
article XXXIII, with respect to the proration and
accrual of vacation under the 60-percent-of-total-
working-days formula set forth in the Unions'
proposal. After some discussion these sections
together with section 1 of the vacation article were
passed over, as they were essentially monetary
items. However, consideration was given to sections
4 and 5, article XXXIII, dealing with scheduling of
vacations and notice to employees. Agreement was
reached on those sections. No agreement was
reached on section 6 which established the basis or
formula for calculating vacation pay of road
drivers.
The discussion then turned to article XXXIV, en-
titled "Holidays." This article was comprised of
eight sections. Section 1 of the article provided for
seven paid holidays with compensation to be on the
basis of 8 hours at the regular hourly rate of pay of
the employee. The proposal designated New Year's
Day, Memorial Day, Fourth of July, Labor Day,
STANDARD TRUCKING CO. 573
Thanksgiving Day, Christmas Day, and the em-
ployee's birthday as the holidays to be observed.
Moreover, the proposal provided that within the ju-
risdiction of Local 391, Easter Monday would be
observed in lieu of Memorial Day in the absence of
mutual agreement to the contrary on the part of the
Company and Local 391. The ompany countered
with the suggestion that the employee's birthday
would be substituted for Memorial Day in the area
of Local 71 and for Easter Monday in the jurisdic-
tion of Local 391. Moreover, one of the company
representatives observed that under present com-
pany practice the employee was given the option of
taking a day off on any day of the week in which his
birthday occurred. The Company stated its desire
to retain six paid holidays. No agreement was
reached at this meeting on section 1 of article
XXXIV.
Discussion next dealt with section 2 which pro-
vided for a minimum guarantee of 6 hours' pay and
compensation at two times the regular rate of pay
to employees, except road drivers, called to work
on a designated holiday. The Company stated that
it did not follow a practice of guaranteeing em-
ployees a minimum under such circumstances. It
was further stated that it was present company
practice to compensate employees called to work
on holidays at straight time only. The Company
stated its desire to adhere to this practice. No
agreement was reached on section 2.
Sections 3, 4, and 5 were next considered and
were agreed upon by the parties. Section 3 would
grant to an employee an additional day's vacation
pay when a holiday falls within his vacation period;
section 4 provides that an employee must work
either the day preceding or the day following a
holiday to qualify for holiday pay; and section 5 ex-
cludes probationary employees from holiday entit-
lement . No agreement was reached on section 6
which would grant holiday pay to regular em-
ployees if a holiday should fall within the first 30
days of absence due to illness or nonoccupational
injury, or within the first 6 months of absence due
to occupational injury. However section 7 dealing
with the calculation of eligibility for holiday pay of
laid-off employees was approved as was section 8
which, with modifications, provides for the com-
pensation of employees when a holiday falls on his
day off. Thus, sections 1, 2, and 6, article XXXIV,
were passed over.
Articles XXXV and XXXVI dealing, respective-
ly, with funeral leave and jury duty were discussed
and agreement was reached on these articles.
The discussion then turned to article XXXVII
dealing with health and welfare. The discussion of
this article combined with a discussion of article
XXXVIII pertaining to pension fund. The Unions'
proposal with respect to these articles was as fol-
lows:
Article XXXVII:
The Employer agrees to maintain a Health
& Welfare plan for its employees and their
dependents at no less than is outlined in
the Company booklet including sick leave
and salary continuation at no cost to the
employee.
Article XXXVIII:
Central States, Southeast and Southwest
Areas Pension Fund to be negotiated.
With respect to the subject of health and welfare,
the Company stated that it did not favor a plan
which required the Company to absorb the entire
cost . Barbee stated that Local 71 desired to adopt
the central states health and welfare plan while
Blevins asserted that Local 391 would be willing to
accept either the central states plan or the in-
surance plan then in effect at the Company. This
led to a discussion of the cost of the Company's
present plan and, in response to a question by a
representative of the Unions, Woodward replied
that he did not know the exact cost but would en-
deavor to determine this so that this matter might
be considered in conjunction with other monetary
items.
The pension fund was next discussed and the
Unions requested that the parties adopt some form
of the central states, southeast, and southwest areas
pension fund. The Unions made no attempt to
specify the level of the pension under the Unions'
pension plan. Hemby, speaking for the Company,
stated that the Company desired to retain the Com-
pany's existing profit-sharing plan and article XXX-
VIII, like companion article XXXVII, was passed
over.
Articles XXXIX and XL, meal period and sanita-
ry conditions, respectively, were discussed and
agreed upon. Consideration then turned to article
XLI, entitled "Workday, Workweek." This article
was a detailed one comprised of 13 sections. Con-
sideration was given at this meeting to the first 5
sections.
The first three sections provided, in substance,
that the workweek shall consist of 5 consecutive
days and the workday of 8 consecutive hours; that
time worked in excess of 8 hours in any given day
shall be compensated at a rate of time and a half;
that any hours worked in excess of 40 in a single
workweek shall be similarly compensated; that
work on the sixth consecutive day or on an em-
ployee's day off shall be compensated at the rate of
time and a half; and that work on the seventh con-
secutive day shall be compensated at double time.
Speaking on behalf of the Company, Hemby
stated that the Company was operating on the basis
of a 9-hour day and 45-hour week based on 5 con-
secutive days. Hemby stated the Company's desire
to retain this workday and workweek. Hemby
further stated that, with respect to section 2, the
Company paid no daily overtime and paid overtime
to drivers only after 45 hours per week. Addi-
tionally, Hemby stated that it was the policy of the
Company to pay $1 per hour above hourly scale to
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers who worked on Saturday. Hemby stated
that he desired to maintain this policy in effect.
Sections 1, 2, and 3 of article XLI were passed
over. Section 4, providing that the Company would
not maintain split shifts, was discussed and the sec-
tion was adopted.
Section 5 which proved that overtime would not
be used in making up the weekly minimum guaran-
tee for regular drivers, a topic encompassed by sec-
tion 6, was passed over in light of the absence of
any agreement on overtime. However, in discussing
section 5, Hemby stated on behalf of the Company
that the Company was using the equivalent of over-
time in meeting weekly minimum guarantees with
respect to peddle drivers, city drivers, and road
drivers and would like to continue this practice.
The meeting of December 20 ended with this
discussion and the parties next met in collective-
bargaining session on January 14.
(6) The meeting of January 14
At this meeting the parties resumed their con-
sideration of article XLI and there was extensive
discussion concerning sections 6 through 13.
In discussing section 6, the parties gave extensive
consideration to the types of employee absences
which would render inapplicable the weekly
guarantee provided for by other sections of article
XLI. Agreement was reached on this section.
Attention was given to section 7 of article XLI
dealing with the compensation of employees as-
signed to work tasks in classifications other than
their own. There was a detailed discussion of the ef-
fects of varying instances wherein an employee
might be assigned to a job task normally performed
by an employee in a classification receiving either a
higher or lower rate of pay. These discussions were
essentially exploratory and informative in nature
and no determination was reached at this meeting
with respect to section 7.
The other provision given consideration during
the morning session of the meeting of January 14
was section 8, article XLI, dealing with employee
interchange and layoff during slack periods. Sub-
stantial agreement was reached with respect to this
section, but minor language changes were made at
a later meeting.
Section 9, article XLI, authorizing the use of 15
percent of the newest segment of the employee
complement as "unassigned employees" was agreed
to at this meeting. Agreement was achieved after
the Unions clarified certain language contained
therein and after some minor changes in wording
were made.
Agreement was also reached on section 10, arti-
cle XLI, which provided for a guarantee of 4 hours'
compensated work for regular employees called
back to work after completing their regular work-
day and/or regular workweek. In discussing this ar-
ticle the Company pointed out that it had no
guarantee as provided in section 10 of the Unions'
proposal. However, after discussion the Company
and the Unions agreed to section 10 as it was con-
tained in the Unions' proposal.
Section 11 was next considered but no agreement
was reached with respect to it. This section pro-
vided that, except with respect to regular peddle-
run drivers, the Company had no obligation to
compensate an employee by overtime or premium
pay once the employees' weekly guarantee had
been satisfied. With respect to the peddle-run
drivers, however, the section provided that these
drivers must be allowed to "stay with their runs five
(5) days a week." The Company raised the
question of the applicability of this section to a
hypothetical situation wherein a peddle-run driver
had completed 40 hours of work in 4 days' time.
The question was raised whether, as was the then
current practice, a peddle-run driver could be used
on the fifth day for only 5 hours, or less than a full
day's work. This question was not resolved and this
section was passed over.
Section 12 was next discussed and agreement was
reached on subsections (a), (c), and (d). Subsec-
tion (a) recognized the right of the Company to use
casual employees under prescribed procedures and
obligated the Company to guarantee a minimum of
4 hours' work to each casual employee called to
work and to maintain records with respect to their
use. Further it required the Company to utilize
regular employees in lieu of casual employees when
certain designated conditions had been fulfilled.
Subsection (c), in effect, was a limitation upon the
formula to be employed for the computation of
"days worked" by casual employees. Subsection (d)
provided that casual employees working at a "com-
bination terminal " shall be paid at the "combina-
tion rate."
Subsection (b) which provided that casual em-
ployees working in excess of the designated work-
day or workweek would receive applicable premi-
um rates was not agreed upon. The Company,
which hired regular part-time employees but not
casuals , raised the question whether this section
would necessitate separate records being kept for
casuals.
The Unions deleted section 13, article XLI, and
it was agreed that article XLII, wages; article XLIII,
mileage and hourly rates for road drivers; and arti-
cle XLIV, safety awards and/or bonuses, would be
passed over because they were monetary items.
However, with respect to article XLIII, the Com-
panyy raised the question with respect to section 5
dealing with mileage determination. The question
was directed to instances wherein drivers might
take routes other than the prescribed routes to
complete a run. The parties resolved this issue by
substituting the following language for language
contained in the draft proposal: "Where a dispute
involving mileages between terminals arises, the
Employer and the Union shall jointly log the mile-
STANDARD TRUCKING CO.
age in dispute."
With this change the parties reached agreement
on section 5.
The parties next discussed article XLV, entitled
"Termination," dealing with the term of the agree-
ment . The Unions again expressed a desire for a 3-
year agreement and the Company stated that it
preferred a 1-year agreement. The discussion
between the parties then turned to the wording of
the article, leaving for subsequent determination
the question of the length of the agreement. The
language of all three sections of article XLV was
agreed to at this meeting.
At this point in their discussion the parties then
turned to the beginning of the agreement and con-
sidered those items upon which agreement had not
yet been reached. The first item so considered was
section 2, article I, transfer of company title or in-
terest. The position of the parties remained the
same with respect to this section and the discussion
then turned to article II, checkoff of dues.
Hemby stated that the Company had a very
strong feeling with respect to the checkoff of dues,
and Barbee, in answer, stated that the Unions had a
similarly strong feeling. Hemby stated that if em-
ployees chose to belong to a labor organization
they should have sufficient loyalty to make dues
payments themselves. Hemby also stated that the
Company did not favor dues checkoff because it
had the effect of reducing the employees' take-
home pay and of causing "dissatisfaction at home"
which, in turn, had the effect of causing the em-
ployee to look to the Company for more money.
In response, Barbee stated that the dues checkoff
provision was in most labor agreements and that it
was "a way of life in the labor movement."
No agreement was reached on this item and the
discussion then turned to article III, scope of the
agreement.
The positions of the parties with respect to sec-
tion 1 remained essentially the same and no agree-
ment was reached on this section. However, agree-
ment was reached with respect to section 2, after
some language changes to meet questions raised by
the Company with respect to its latitude in utilizing
city drivers in performing dockwork.
Section 4, article III, probationary and casual em-
ployees, was next discussed.22 The Company stated
its preference for a 60-day probationary period and
after some discussion the Unions suggested that,
while they would be amenable to a 60-day proba-
tionary period for maintenance employees, they
desired a 30-day probationary period for drivers.
The language of the proposal was ultimately agreed
re Joseph Woodward testified that section 3 , article Ill, was discussed at
the January 14 meeting and that the section was marked "hold" at that
meeting This is in conflict with his earlier testimony that agreement was
reached on this section at the November 19 meeting While I credit Wood-
ward's testimony that at the November 19 meeting there was an extensive
discussion with respect to certain operational circumstances under which
utilization of supervisory personnel became mandatory, and that an oral
575
to, with an understanding between the parties that
the probationary periods proposed by the Unions at
the bargaining table on that day would be opera-
tive. Further, an oral agreement was reached with
respect to the disciplinary rights of the Company,
during the agreed-upon probationary period, with
respect to employees who had falsified their em-
ployment applications.
As the meeting of January 14 neared its end,
Hemby requested that OS&D clerks (over, short,
and damage) be permitted to perform certain
warehouse duties. The Unions took the position
that they could not accede to the Company's
request because the National Labor Relations
Board in the representation proceeding had ex-
cluded OS&D clerks from the bargaining unit, rul-
ing adversely to the Company's request in this
respect.
The meeting of January 14 ended at this point
and the parties met again the following day.
(7) The meeting of January 15
At the outset of the meeting the parties turned
their attention to subparagraph 2 of article IV
which described as a duty of the job steward the
collection of dues. Upon the representation of the
Unions that the applicability of this subsection
would be dependent upon the agreement reached
with respect to the subject of dues checkoff, the
parties reached agreement on this item.
The parties then returned to their consideration
of the sections of article III. Section 6 was first
discussed and the Company stated its desire to have
part-time employees excluded from participation in
the fringe benefits which were being considered for
inclusion in the collective-bargaining agreement. It
was the position of the Company that the regular
part-time employees were paid at a lower hourly
rate, did not presently participate in any of the
fringe benefits offered by the Company, and were
not guaranteed any minimum number of hours. The
Unions, on the other hand, contended that the
regular part-time employees had been included in
the bargaining unit in the representation proceed-
ing and should be covered by the the terms of the
agreement as provided in section 6, article III. The
identity and duties of the regular part- time em-
ployees then in the employ of the Company were
discussed. No agreement was reached with respect
to this section and it was left open.
Section 2, article V, was next discussed. This sec-
tion provided that seniority would be broken only
by discharge, voluntary quit , a layoff of more than
understanding with respect to the utilization of supervisory personnel in
those circumstances was achieved at the November 19 meeting , I do not
credit Woodward's testimony that as of January 14 the entire article was
still open While some discussion of the section may have transpired at the
January 14 meeting, I find , based on the testimony of M 0 Hodge, con-
strued in light of Woodward 's own testimony, that agreement was achieved
on this section at the November 19 meeting
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 years, absence without report for 72 hours, non-
compliance with leave-of-absence provisions, and
failure to observe the requirements or terms of re-
call after layoff. The Company requested that a 2-
year provision be substituted for the 3-year layoff
reference and that 48 hours be substituted for the
72-hour absence provision of the proposal.23 Thus,
agreement on this section was reached.
In conjunction with consideration of Section 5,
article V, which was the next item considered, the
Unions offered new language to be substituted for
the language in the written proposal. The new lan-
guage to be offered under section 5, to be headed
"new terminals etc.," was as follows:
When any part of the existing operation is
transferred to any other location, the em-
ployees affected shall be given an opportunity
to follow such work in accordance with their
seniority and shall carry with them all company
seniority for all benefits at the new location.
Subsequent to the meeting of November 19 at
which this section was first discussed, the Company
had explored the effect of the Unions' original sec-
tion 5 proposal upon economic exigencies arising
from changes in freight flow and the influx of new
business . Under the Company's practice as it then
existed, it was not the Company's policy to in-
variably transfer personnel from one terminal to
another to staff changes in operations necessitated
by prevailing economic influences . The amended
section 5 language was offered by the Unions to
meet the Company's objections. At the meeting of
January 15 the new language comprising section 5,
article V, was adopted.
Moving to section 6, article V, the Unions of-
fered some amplifying language to be incorporated
in section 6. This was in response to the inquiry of
Hemby raised at the meeting on the previous day
concerning the necessity of maintaining two
separate seniority lists . This language was as fol-
lows:
There shall be two seniority lists, one for main-
tenance employees and one for all other em-
ployees covered by this agreement. There shall
be no interchangeability between the two lists.
This modification was agreed to by the parties.
The parties, having agreed that company seniori-
ty would prevail reached agreement on section 7 of
article V. Agreement upon section 8 of the article
was achieved after certain additions and deletions
in language were accomplished to more accurately
reflect company practice of delineating between
employees on the basis of maintenance and non-
maintenance personnel, and not by separate job
a Joseph Woodward so testified and I credit him. The testimony of M. 0
Hodge to the effect that Barbee on behalf of the Unions proposed this
modification is not credited I find it more likely that the Company would
have been the moving force in seeking this modification because, as Wood-
classifications. For the same reason section 10 of
article V was similarly modified, and was agreed to
as modified.
Sections 11 and 12, the only two sections of arti-
cle V to which the parties had not agreed, were
withdrawn by the Unions.
Consideration was next given to section 1, article
VI, dealing with maintenance of standards. Hemby,
speaking on behalf of the Company, stated that the
Company did not understand what the Unions
sought to have included within the scope of this
provision which, in substance, required the Com-
pany to maintain all general working conditions in
effect at the time of the execution of the agree-
ment. Discussion then turned to such matters as the
inclusion of uniforms and rain gear. No agreement
was reached on this section.
The parties then turned to consideration of sec-
tion 3 of the grievance proposal, article VII. As this
section, like sections 4 through 7 of this article, re-
lated to the role of an arbitrator in the grievance
procedures, Barbee, speaking for the Unions,
inquired if the Company objected to some form of
arbitration. Hemby, on behalf of the Company,
stated that the Company was still objecting to ar-
bitration as a means of determining unresolved is-
sues between the parties.
At the meeting of November 19, when this provi-
sion was first discussed by the parties, the Com-
pany, as found, had stated its objections to having a
`third party" who was unfamiliar with the underly-
ing details render a decision on matters in dispute.
The Company stated that as "reasonable men
dispute.
the
Union and the Company could resolve any misun-
derstanding that would develop. Moreover, the
Company stated its objections to the cost aspects of
engaging in arbitration and the unpredictability,
despite the costs incurred, of the decision to be
handed down.
The Unions stated at the November 19 meeting,
as found, that the position of the Company, in ef-
fect, was to create an "open end" procedure with
respect to grievances and that such a provision in-
vited economic recourse by the Unions, in the form
of a strike, to resolve disputed matter.
At the January 15 meeting, the Company ad-
hered to its previous position with respect to ar-
bitration and Barbee, speaking on behalf of the
Unions, stated that it would not be fair to the em-
ployees to have an agreement which did not pro-
vide for ultimate determination of dispute. He
further stated that he was requesting the Company
to reach agreement on some form of arbitration.
Barbee asserted that he would not sign any agree-
ward testified , the Company was seeking , to the extent possible, to limit the
provision 's incursion upon the dispatch freedom of management Thus I
conclude that the Company suggested this change and the Unions
acquiesced in it
STANDARD TRUCKING CO. 577
ment which left the final decision on unresolved is-
sues strictly up to management.24
Having reached no agreement on the principal of
arbitration, the parties next considered article IX,
loss or damage
As he had done earlier, Hemby stated that the
company policy was to allow drivers to pay for
damage to vehicles rather than to lose accruals
toward a safety award. Barbee, on behalf of the
Union, suggested a language change in the Unions'
proposal which would, in substance, meet the
wishes of the Company. With this language the sec-
tion was agreed upon.
By striking, at company suggestion , references in
the final paragraph of article XXX to the "Carolina
By-State Committee" the parties reached agree-
ment on all elements of article XXX.
There followed brief discussions with respect to
articles XXXII, XXXIII, and XXIV.25 After some
brief discussion of paid-for time, which was the sub-
ject of article XXXII, the parties agreed that this
was essentially an economic issue and that it would
be passed. With respect to article XXXIII dealing
with vacations, the Company restated its previously
articulated position that it desired to adhere to its
existing vacation schedule. The parties then briefly
discussed article XXIV covering holidays: Hemby
stated specifically that the Company was in agree-
ment that New Year's Day, Fourth of July, Labor
Day, Thanksgiving Day, and Christmas Day would
be recognized as holidays. However, Hemby again
advanced the suggestion that within the jurisdiction
of Local 391 the employee's birthday be substituted
for the Easter Monday holiday proposed in the
Unions' draft and that in the jurisdiction of Local
71 the employee's birthday be substituted for
Memorial Day. No agreement was reached on this
and the article was marked "hold."
Representatives of the Company suggested that
the discussion move on to consideration of wages,
but the Unions inquired if the Company had not in-
dicated its agreement that the workweek should
consist of 5 consecutive days. The Company
responded in the affirmative and as a consequence
the first paragraph of section 1, article XLI, defin-
ing the workweek as 5 consecutive days was ap-
proved.
The Unions then inquired if the Company had its
counterproposal on wages ready for submission.
Hemby stated that the Company did not desire to
make wages retroactive to September 15. However,
Hemby specified the hourly wage range of dock
and warehouse employees and of drivers, and
stated the Company's willingness to increase the
hourly wage rate of all employees in those catego-
ries by 15 cents per hour. In addition, the Company
proposed that the wages of switchers and shop em-
ployees be increased by 15 cents per hour. Further,
the Company proposed that the mileage compensa-
tion of line drivers be increased one-half cent per
mile.26
The rates which the Company specified to the
Unions as forming the basis for the 15-cent-per-
hour wage increases were those which were in ef-
fect at the Charlotte terminal on January 1, 1969.27
No reference was made at this meeting to the wage
scales in effect at the other terminals of the Com-
pany.
In answer to the Company's counterproposal, the
Unions asserted in their wage proposal they had
specified September 15, 1968, as the effective date
because the Unions had been informed that the
Company had granted wage increases on Sep-
tember 15 to employees at all terminals except
Charlotte and Greensboro The Company
responded that no wage increase had been put into
effect at the latter two terminals because of the
proximity of September 15 to the representation
election which had been conducted at those ter-
minals, and the apprehension of the Company that
to have granted the wage increases at those ter-
minals would have been construed as an unfair
labor practice. The Company further stated that it
would not agree to a retroactive wage proposal but
that it would be willing to put the wage increases
into effect at the Charlotte and Greensboro ter-
minals on the effective date of the collective-bar-
gaining contract. The Unions stated that they would
take the Company's proposal to the membership
but that the proposal would not bear the recom-
mendation of the negotiating committee.
The parties then discussed the final article of the
Unions' proposal dealing with the term of the
agreement. Hemby stated that the Company
favored a 1-year agreement.
The meeting ended at this juncture and a meeting
was scheduled for January 29.
"The testimony of M 0 Hodge attributes to C W Hemby, both at the
November 19 and January 15 meetings , a direct statement to the effect
that the Company wanted all unresolved disputes left to the ultimate
resolution of management The testimony of Joseph Woodward and C W
Hemby lends no support to the testimony of Hodge and I am not convinced
that the Company at the bargaining table stated , in terms, that this ultimate
decisional authority should rest with management Rather, the testimony of
Woodward and Hemby convinces me that at the bargaining table the Com-
pany took the position that without the interposition of a third party the
Unions and the Company could resolve disputes which might arise
ss Joseph Woodward so testified but the testimony of M 0 Hodge does
not reveal any discussion of these articles Moreover , I credit Woodward to
the effect that these articles did receive some attention at the January 15
meetin .
46 The line drivers tall into two categories , the regular line driver and the
wild line driver The latter is a driver who is domiciled at a given terminal
but may be dispatched from one terminal to another without returning to
his terminal of domicile
"The prevailing wage scales at Charlotte as stated by Hemby at the
meeting were warehousemen , $2 25 per hour to $2 65 per hour, city
drivers, $2 65 to $ 3, switchers , $ 2 75, shop personnel (undesignated),
maximum of $3 per hour, line drivers , 9 cents per mile, and wild drivers,
9.25 cents per mile
That Hemby specified the Company 's wage scale at the January 15 meet-
ing, in response to an inquiry by Barbee, is testified to by M 0 Hodge and
substantiated by the testimony of Joseph Woodward on direct examination
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(8) The January 29 meeting
After certain preliminary matters were disposed
of and after certain clarifying questions and ex-
planations had been rendered with respect to items
upon which agreement had been reached '21 the
parties discussed article VI, maintenance of stan-
dards and the principal of arbitration as it related to
article VII. There was no change in the position of
either party on these proposals. 9
Article XVIII, owner-operators, was then
discussed and orally at the meeting the Unions of-
fered language which, in effect, left the Company
free to enter into equipment lease agreements but
provided also that all drivers of any leased equip-
ment would be covered by all provisions of the
agreement. The Company responded that the lease
operators would have to be consulted with respect
to this proposal in that there were cost and other
economic considerations implicit in the provision.
Moreover the Company stated that article XXIX
dealing with subcontracting involved lease opera-
tors. As a consequence these articles were passed.
The subject of vacations was next discussed and,
as a counterproposal to article XXXIII, the Com-
pany stated that it would desire to continue its
present vacation policy of granting 1 week's vaca-
tion after 1 year of employment; 2 weeks after 3
years' employment; and 3 weeks after 15 years' em-
ployment. However, the Company offered to grant
4 weeks' vacation after 20 years' service.
The Unions did not accept the Company's
proposal and countered with a modified proposal of
I week's vacation after 1 year of employment; 2
weeks after 3 years; 3 weeks after 12 years; and 4
weeks after 16 years.30 No agreement was reached
on this matter.
However, after some discussion of section 2 of
the vacation article the parties agreed to section 2.
In agreeing to this section Hemby stated that the
provisions were "pretty much" in line with com-
pany practice.
Additionally, the parties discussed section 3, arti-
cle XXXIII, and the Unions' proposal was adopted.
With respect to section 6 of the vacation article,
the Company stated, that it was its practice to com-
pensate road drivers for vacation pay based on a
28 Harvey Tillman, newly designated terminal manager of the Greens-
boro terminal , replaced George Phillips as a bargaining committee
member at this meeting and at the outset of the meeting asked clarifying
questions relating to article III
" The testimony of M 0 Hodge does not reveal that these articles were
discussed , but the testimony of Joseph Woodward is to the contrary and I
credit Woodward
Further , M 0 Hodge testified that at the outset of the negotiations on
January 29, the Company requested that dispatchers be carried on a
separate seniority list Although Woodward does not refer to this discus-
sion in his testimony I credit Hodge The Unions stated that , except for the
chief dispatcher , the dispatchers had interests in common with the other
unit employees and that the Board had ruled on this question Accordingly
the Unions denied the Company's request
90 The testimony of M 0 Hodge concerning this offer at this meeting
suggests that the Unions ' modified proposal provided for 4 weeks' vacation
1,500-mile guarantee . The Company stated its
desire to adhere to this practice and this section
was passed . The discussion than turned to sections
I and 2 of article XXXIV, the holiday proposal.
With respect to those sections the Company
stated it desired to grant 6 holidays and to guaran-
tee a minimum of 6 hours ' pay to employees who
were called to work on a holiday . However , in con-
trast to the Unions ' proposal which called for com-
pensation at two times the straight hourly rate, the
Company stated its preference to pay straight time.
The Unions did not agree to this proposal and these
sections were marked "hold."
Section 6 of the holiday article was next
discussed and an understanding was reached that,
under the terms of this section , the Company would
grant holiday pay to an employee - who becomes en-
titled to it during a period when he is absent from
work due to illness or occupational injury . Pay was
to be granted on the basis of the difference between
his normal straight-time pay and any sick pay or
workmen 's compensation that he may be drawing.
With this modification section 6 of the Unions'
holiday proposal was adopted.
The parties next turned their attention to articles
XXXVII and XVIII dealing with health and welfare
and the pension fund . The Unions' representatives,
Messrs . Barbee and Blevins , conveyed to the Com-
pany the desire of the employees and of the union
negotiators to obtain some level of the central
states health and welfare plan. The Unions agreed
to drop their request for the adoption of the central
states pension plan. The union representatives
stated that the Company 's present profit-sharing
plan was not adequate . Further with respect to the
Company 's insurance plan, the Unions stated that
the employees were dissatisfied with this coverage.
Woodward, on behalf of the Company, stated that
the Company was now giving consideration to an
improved health and welfare plan and was assessing
the costs . He stated that he would like to present
the plan to the Unions for their consideration. Ac-
cordingly, these articles were passed.31
Upon reaching the workday-workweek article,
which was set forth in the Unions' written proposal
as article XLI, the Unions requested a caucus. The
caucus was held and , after returning to the bargain-
after 16 years However , the testimony of Joseph Woodward is to the effect
that entitlement to 4 weeks ' vacation would accrue after 18 years In the
total context of the record testimony, and in light of Woodward's sub-
sequent testimony that at the February 27 meeting the Unions again
modified their proposal to provide for 4 weeks' vacation after 18 years' ser-
vice, I credit Hodge
" The reference to the Company's consideration of improved health and
welfare benefits and the proffer of this plan for future consideration is
based on the testimony of M 0 Hodge Joseph Woodward did not testify
to this occurrence at the January 29 meeting and, in fact , testified merely
that Hemby , speaking for the Company , stated only that the Company
desired to adhere to its existing health and welfare plan Upon considera-
tion of subsequent events concerning this proposal, I credit Hodge that at
the January 29 meeting Woodward did make the observation and proffer
testified to by Hodge
STANDARD
ing session , the Unions stated that the Company's
wage offer and overtime proposals had been
presented to the employees and had been rejected
by them. The Unions stated, however, that in lieu
of their written proposals on workday-workweek
they desired to present substitute proposals. The
Unions proposed that, except for peddle drivers,
each employee would have an 8-hour guaranteed
workday , with compensation at the rate of time and
one-half after 9 hours' work per day, or for all
hours worked in excess of 44 hours per week dur-
ing the first year of the contract . During the second
year of the contract all terms would be the same ex-
cept that time and one -half would be paid after 43
hours of work per week. Further, during the third
year of the contract all terms would be the same ex-
cept that employees would be compensated at time
and one-half after 42 hours per week.
With respect to peddle drivers a daily guarantee
of 8 hours per day would prevail and there would
be in effect no daily overtime. However, a peddle
driver would be compensated at time and one-half
for all work performed in excess of 45 hours per
week in any given workweek.
Hemby, on behalf of the Company, stated in
response that the Company desired to adhere to its
present workday and workweek. The Unions stated
that this was unacceptable.
The parties then discussed section 3, article XLI,
and the Company took the position that, because of
work of an employer on the sixth or seventh day of
any given workweek was voluntary, he should not
be compensated at the premium rates provided for
in this section . No agreement was reached on this
and the parties next considered section 12, sub-
paragraph (b), of this article. No agreement was
reached on this matter.
During the course of this meeting , the term of the
agreement was discussed. The Unions observed that
in view of the Company's wage proposals it was in-
ferrable that the Company was requesting a 1-year
agreement . Hemby replied that this was an accurate
evaluation and that the Company was proposing a
1-year agreement.
(9) The January 30 meeting
The parties met again on the following day,
January 30. As suggested by the Unions, the parties
again discussed those items upon which agreement
had not been reached.
Article I, section 2, relating to transfer of com-
pany title and interest, was the first item discussed
but the position of neither party had changed. This
item was passed and consideration was then
directed to article II dealing with the checkoff of
dues. The Company stated that there was no
change in its position concerning checkoff and
Woodward stated, in substance, that the Company
did not favor deductions from employees' pay. The
Unions inquired if insurance and Christmas savings
TRUCKING CO. 579
and similar items were not already being deducted
from the employees ' paychecks . The Company an-
swered that this was so and stated that this was the
source of the difficulty , in that state , Federal, and
social security taxes , and the like, were already
being deducted. No agreement was reached and the
parties turned to consideration of section 1, sub-
paragraph A and B, of article III. After discussion
of these subparagraphs the parties agreed to them.
They then turned to discussion of article V dealing
with seniority rights.
At an earlier meeting the Company had
requested a separate seniority list for dispatchers.
In response to this , the Unions at the January 30
meeting offered , in essence , to modify article V,
section 9 , to add the following language : "The posi-
tion of dispatchers shall not be subject to bid. The
company shall have sole discretion in appointing
the dispatchers ." This modification was agreed to
as an addition to section 9, article V.
In connection with this addition to section 9, the
Unions proposed that the dispatcher be compen-
sated at the same rate of pay as had been proposed
by the Unions for city drivers . Hemby stated that he
did not think that the dispatcher could be covered
under the wage and hour provisions of this agree-
ment because they fell within the purview of the
Federal wage and hour law. Further , the Company
contended that the dispatcher job contained at-
tributes similar to that of office personnel and
should be compensated on the basis of a 40-hour
week. The Unions ' representatives agreed to in-
vestigate the matter and the issue was held in
abeyance for future consideration.
Section 1 of article VI dealing with the main-
tenance standards was discussed . Woodward, on
behalf of the Company , stated that the area of dis-
agreement seemed to resolve into a dispute as to
whether or not the Company would continue its
practice of furnishing uniforms and rain gear. The
Company took the position that these were matters
to be considered in conjunction with the total cost
of the money items contained in the Unions'
proposal and accordingly this item was passed over.
As the meeting progressed , the Company stated
that its position had not changed with respect to
those sections of the grievance and dispute article
dealing with the concept of arbitration . No agree-
ment was reached on this article.
With respect to article XXXIII dealing with vaca-
tions, the Company restated its offer of 1 week's
vacation after 1 year of service; 2 weeks ' vacation
after 3 years ; 3 weeks ' vacation after 15 years; and
4 weeks ' vacation after 20 years ' service. The
Unions countered with the suggestion that the
Company modify its proposal so that 3 weeks' vaca-
tion would be granted after 12 years ' service. The
Unions stated that if the Company would modify its
proposal in this regard this would be presented to
the membership with recommendation for its ap-
proval . However , no agreement was reached on this
427-258 C-LT - 74 - 38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter at the meeting.
Section 1 of the holiday article was then
discussed and the position of neither party changed.
The Company then raised certain questions per-
taining to the health and welfare article. Hemby
stated that the Company would like to compare the
Unions' central states health and welfare plan and
to determine whether the Company could devise a
comparable plan. Hodge, on behalf of the Unions,
stated that if the Company could do so he would
present the plan to the membership. With this ob-
servation the health and welfare article was passed.
The Unions then reiterated their statement that
they were willing to withdraw their request for the
central states southeastern pension fund and that
the Unions would be willing to accept the Com-
pany's profit-sharing plan. Hemby inquired how
long the profit-sharing plan would remain in effect
and the Unions asserted that it would be for the life
of the contract.
The Unions then returned momentarily to a
discussion of the health and welfare article and
requested that the Company obtain cost figures for
the Company's plan both with and without depen-
dent coverage. Hemby stated that the Company
would endeavor to do so.
Article XLI, workday-workweek, was discussed
and there was no change in the position of either
party with respect to sections 1, 2, 3, and 4. How-
ever, section 7 of article XLI was discussed and
agreed to as was section 8. The latter section was
adopted by the parties after certain clarifying
changes in language were made.
However, after discussion of sections 11 and
12(b) of article XLI, the parties were unable to
reach agreement and these were passed.
During the meeting the parties discussed article
XLII with specific reference to the wage scale
proposal for local and maintenance employees, and
the effective date of September 15, 1968, con-
tained in the Unions' wage proposal. In their discus-
sions of this article the Unions were preparing a
separate wage scale for class A mechanics, class B
mechanics, and mechanics' helpers. Under the
Unions' proposal, there would be no range or
distinction made within the classification to reflect
length of service. Hemby sought to clarify this, ob-
serving that within the shop there were many dif-
ferent pay scales based on job content and ability.
The Company took the position that within each
job category the scale should be graduated so that a
starting employee who was inexperienced would
not receive top pay. The Unions responded that the
job classifications or categories with respect to
mechanics and mechanics' helpers would have to
be worked out but that with respect to drivers the
wage scale would be uniform throughout, re-
gardless of length of service or experience. Hemby
answered that a new driver would not be familiar
with the Company's procedures and consequently
should not be started on a wage basis equal to that
of a driver who had been with the Company a
period of time. Further exploratory discussion en-
sued with respect to compensation of employees
who were interchanged between warehouse and
driving duties. The Unions sought, in this connec-
tion, to determine the practice of the Company in
compensating new hires. The question was posed
whether the Company started dock employees at
the top pay level or at a lower level. The Company
answered that dock employees were hired at the
lowest graduated level and their scale increased
after 6 months. The Unions reiterated that under
their agreements the pay scale was uniform for
each classification covered therein. The Company
asked the Unions' representatives if they had any
agreements in existence with short-haul carriers.
Hodge, speaking on behalf of the Unions, stated
that there was a contract with a contract carrier.
This evolved into a discussion of the difference in
the operations of the various types of carriers. This
discussion led to a consideration of the manner in
which road drivers were compensated. In connec-
tion with this Hodge stated that the Unions had
"quite a bit of work to do" to determine the
manner in which road drivers and line-haul drivers
were compensated. Hodge further stated in this
connection that the membership of the Unions
would accept 15 cents an hour from September 15
until the contract was agreed to and that upon
agreement a new pay scale would go into effect.
The Unions stated they would like to have a
package counterproposal at the next meeting and
would request that this proposal include one on
wages and on all items upon which agreement had
not been reached.
Article XLIV was then discussed. This article,
dealing with safety awards and bonuses, evoked the
comment from Hemby that the Company did not
know how the employees felt about this section.
Hodge responded that the employees who benefited
from them were in favor of them. He observed
further that the dock employees did not benefit
from those awards and bonuses and those who did
not benefit did not like the concept. Woodward
asked Hodge if he knew of any company that gave
bonuses to drivers and nondrivers alike. Hodge
stated that he did but again asserted that dock em-
ployees at the Company were dissatisfied with the
awards' plan of the Company.
The meeting of January 30 ended with the parties
agreeing tentatively to meet in mid-February.
Woodward agreed to contact Hodge to confirm the
mid-February date tentatively specified for the
meeting . Woodward subsequently contacted Hodge
by telephone and a date of February 19 was set for
STANDARD TRUCKING CO.
the next meeting . However, after subsequent com-
munications between the parties the meeting oc-
curred on February 26.32
(10) The rescheduling of the mid-February
meeting
By telegram dated February 17 the Company
requested that the collective-bargaining meeting
scheduled to be held on February 19 be postponed
until February 26 due to weather conditions.
The following day, February 18, the Union
responded by telegram as follows:
TEAMSTERS LOCAL 391 AGREED TO A
RESCHEDULING OF NEGOTIATIONS FOR
WEDNESDAY, FEB. 26, 1969 AT 10 A.M.
HOWEVER WE WOULD REQUEST THAT YOU COME
PREPARED TO MAKE YOUR FINAL OFFER AT THIS
TIME WE WOULD REQUEST THAT 2 CONSECUTIVE
DAYS BE SET UP FOR FEB. 26 AND 27 1969.
Meetings were held between the parties on Februa-
ry 26 and 27.E
(11) The meeting of February 26
Woodward opened the February 26 meeting by
introducing an insurance agent for the purpose of
explaining the insurance aspects of the health and
welfare program which the Company had devised.
The program as outlined at the meeting by the
agent included life insurance, accidental death and
dismemberment, out-of-work benefits, and hospital
and major medical coverage. The life insurance
coverage under the plan extended only to the em-
ployee, but the employee and his dependents were
to be covered under the other features. A payroll
deduction in the amount of $3 per month was to be
made to finance the dependent coverage. Under
the proposed plan the olicy would provide for no
coordination of benef is as between it and any
other insurance coverage which the employee
might have.
The provisions of the program outlined at the
meeting provided for life insurance in the amount
of $5,000; accidental death and dismemberment
of $5,000; and out-of-work benefits in the amount
of $60 per week to commence with the first day of
any accident and the sixth day of any illness to a
maximum of 15 weeks, except in case of a female
employee who missed work due to pregnancy. In
that event the maximum benefit would extend for 6
weeks.
The program also provided for hospital room
benefits of $35 per day for a maximum of 31 days;
az The foregoing findings concerning the occurrence at the meeting of
January 30 are based on a composite of the testimony of M 0 Hodge and
Joseph Woodward Each testified credibly concerning some discussions
which the other did not touch on in his testimony . However , I do credit the
testimony of Joseph Woodward to the effect that at the January 30 meeting
Hodge, on behalf of the Unions, again verbally proffered language which
would modify the existing proposals of article XVIII pertaining to owner-
operators Both Hodge and Woodward testified credibly that this language
was offered at the meeting of January 29 and I consider it most unlikely
581
miscellaneous hospital expenses to a maximum of
$300; surgical benefits to a maximum of $300; a
flat rate for a pregnancy and delivery of $200; and
X-ray and laboratory expenses to a maximum of
$50. The major medical provisions of-the proposed
plan contained coverage up to $15,000 with a $100
deductible feature for each 12-month period for
each individual covered by the plan.
After the presentation by the insurance agent,
the Unions posed several questions concerning the
plan. Blevins inquired what contributions the em-
ployees made toward the Company's present in-
surance plan and was informed that an employee
with no dependents made no contribution but that
an employee with one dependent contributed $1.77
per week while one with two or more dependents
contributed $2.59 per week. These were con-
tributed by way of payroll deduction.
Additionally, Blevins inquired how the proposed
out-of-work benefits compared with the out-of-
work benefits presently in effect at the Company.
Woodward responded that an employee with less
than 5 years' service would draw 60 percent of his
salary for 13 weeks; an employee with 5 or 10
years' service would draw 75 percent of his salary
for 13 weeks; and that an employee with 10 or
more years' service would draw full salary for 13
weeks.
Next was the discussion of the health and welfare
proposal terminated by the Unions inquiring if this
plan represented the Company's counterproposal to
the Unions' own proposal on this subject. The
Company answered in the affirmative. The Unions
stated that they would take this plan under con-
sideration along with other cost items in the
Unions' counterproposal which was to be submitted
at the meeting.
In due course at the meeting the Company's
counterproposal was submitted to the Unions. It
was a written document containing 30 pages and 45
articles. After the document was distributed, the
Unions suggested that the parties take an extended
lunch period to facilitate study of the proposal. It
was agreed that the meeting would resume at 2
p.m.
When the parties assembled at 2 p.m., Blevins,
acting as spokesman for the Unions, stated that the
Unions had reviewed the Company's proposal and
had found that much of the language in the
proposal with respect to those items upon which
agreement had been reached had been changed.
Blevins asserted that he had understood that the
Company had been bargaining in good faith on the
Unions' proposal but that, in his opinion, if the
that the Unions would again the following day advance this change to
which the Company had voiced no specific objection Rather , the Com-
pany had asked for time to consult owner -operators concerning this matter
and it is most improbable that the Unions would broach the subject again
the following day
as 1 find upon the credited testimony of Joseph Woodward and other
evidence of record that severe weather conditions developed in the area of
the Company 's operations during the week of February 17 with consequent
disruptions in dispatches and deliveries
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company was insisting upon the language con-
tained in its counterproposal the Company was not
bargaining in good faith.
Woodward informed Blevins, who had not been
present at the previous meeting on January 30, that
he understood that Hodge's request had been that
the Company present a package proposal. Wood-
ward stated that this is what the Company had done
in presenting the counterproposal before them.
Blevins again asserted that he understood that the
Company had "no problem" with the provisions on
which agreement had been reached and that the
parties were in disagreement only on certain
specific items. Blevins further observed that he was
not aware that the Company was now requesting
the parties to go back and "start all over again."
The discussion of the parties concerning the vari-
ance of the Company's proposal from that of the
Unions' proposal led to a discussion of the pay
scale as set forth in the Company's proposal. As
this discussion evolved, Blevins again asserted that
the Unions had been bargaining in good faith and
had understood that the parties had reached agree-
ment in areas other than economic. Blevins ob-
served that the employees were "getting upset
because nothing had been settled" and he again as-
serted that the Unions had been bargaining in good
faith.
As the discussions progressed, Woodward in
open meeting asked Hodge if he had not asked the
Company at the previous meeting to present a
package proposal. Hodge answered in the affirma-
tive and observed that there must have been some
misunderstanding on the part of the Company as to
what the Unions were requesting. Thereupon,
Woodward added that the Company had been bar-
gaining in good faith and that the Company had un-
derstood that the Unions wanted it to make a
"package proposal." Blevins then suggested that the
parties should go back to the original proposal
made by the Unions and try to reach agreement on
sections that were still open. Barbee agreed with
Blevins . Woodward requested a brief opportunity
for the Company to caucus and the caucus was
held.
After the Company had completed its caucus it
requested that, because of disagreement within the
company committee, the meeting be adjourned
until the following morning. The Unions acceded to
the Company's request.
However, before the parties departed, Woodward
stated that the Company was willing to put into ef-
fect a 15-cent-per-hour wage increase at the Char-
lotte and Greensboro terminals. Woodward stated
that the effective date of the increase would be
February 22. The Unions answered that the em-
ployees felt strongly that the 15-cent-per-hour in-
crease should be made retroactive to September
15. There followed some discussion concerning
3i The testimony of M 0 Hodge attributes to the Company a statement
of willingness to accept the language of those items already agreed upon
retroactivity. The Unions demanded retroactivity
but this matter was not resolved. The meeting
thereupon terminated.
(12) The February 27 meeting
The meeting commenced with Woodward advis-
ing the Unions that the Company was willing to
continue the discussions on the basis of the Unions'
proposal and to endeavor to reach agreement on
those items which were still open. Woodward
stated, however, that the company representatives
had both the interest of the Company and those of
the employees to consider and "could not rush into
the contract if both of these interests were not
satisfied." The parties then proceeded to consider
the open items contained in the Unions' original
proposal.34
The parties then proceeded to a discussion of ar-
ticle I, section 2, and article II. Blevins inquired if
section 2, article I, was a "big issue" with the Com-
pany and Woodward responded that it was impor-
tant because it was potentially restrictive of the
Company's ability to transfer ownership or to effect
a possible merger. Blevins responded that the
Unions were in a position to offer to withdraw that
section of article I if the Company would grant arti-
cle II pertaining to the checkoff of dues. Woodward
responded that the Company would take this
matter under consideration but further stated that
the Company's position with respect to checkoff
had not changed.
Woodward then inquired if the Unions would
consider extending the probationary period pro-
vided for under section 4, article III, from 30 days
to 90 days for regular personnel and 60 days for
shop employees. Blevins observed that this section
had already been agreed to but Woodward stated
that the Company needed some relief as to the
length of the probationary period. Blevins answered
that if the Company would show some signs of giv-
ing relief on other matters he felt that the Unions
would, in return, give some relief. There was no
disposition made of the Company's request.
The parties then turned their attention to section
6, article III, which pertained to the coverage under
the agreement of regular part-time employees. The
Unions offered some additional language which had
the effect of excluding regular part-time employees
from the fringe benefits which would be included in
any agreement reached. With the proffer of this
amendment, the section, as amended, was agreed to
by the parties.
Article VI, maintenance of standards, was next
considered. Woodward sought to elicit from the
Unions an explanation of the items which this sec-
tion was intended to encompass. Blevins answered
by inquiring what the Company was most con-
cerned about. Woodward, in reply, specified the
except for "some minor changes " Hodge testified that the "minor chan-
ges" referred to were not specified by the Company
STANDARD TRUCKING CO. 583
maintenance of vending machines and applications
of proceeds therefrom, and the continuation of the
awards and safety pin programs. The Unions an-
swered that the Company was expected to continue
to furnish vending machines but that the disposition
of the profits of the machines was a company
prerogative. He stated further that, because the
proceeds had been utilized for the benefit of em-
ployees in previous years, this did not bind the
Company to a similar disposition of the profits in
the future. Moreover, the Unions informed Wood-
ward that the awards and safety pin program was a
matter for company decision and was not encom-
passed within the section under consideration. As
the discussion evolved it became clear that still at
issue was whether or not the Company would
furnish hand trucks to certain employees and would
furnish shop uniforms and rain gear. Woodward
stated that these matters would have to be con-
sidered in conjunction with other economic items.
However, Woodward again sought to elicit from the
Unions a specification of items covered by the
proposal. This was not achieved and the discussion
then turned to article VII dealing with grievances
and disputes.
When this article was reached, Blevins asked the
Company if it had a counterproposal with respect
to arbitration. Woodward, speaking for the Com-
pany, stated that the Company did not favor ar-
bitration. Blevins responded that some form of ar-
bitration would have to be included in the agree-
ment or there could not be a no-strike, no-lockout
clause . Woodward responded that the Company
still had "one more avenue" to explore before giv-
ing the Unions a final answer on this matter. Wood-
ward did not specify the nature of the other ap-
proach the Company was considering. The parties
then turned to a consideration of article XVIII deal-
ing with owner-operators.
When this article was reached, Blevins inquired if
the Company had had the opportunity to consult
with the lease operators concerning the modified
language which had been earlier offered with
respect to this provision. Woodward responded that
he had contacted all but one of the operators and
desired time to accomplish this. This item was then
passed.35
The subject of paid-for time , article XXXII, was
discussed . The parties reached agreement on the
language of section 1 , contingent upon the resolu-
tion of certain issues pertaining to the other sec-
tions of article XXXII.
With respect to section 2 of this article , call-in
time , Woodward stated that there was no area of
substantial disagreement but that the Company
desired to work out some dispatch rules. Blevins,
speaking on behalf of the Unions, stated that the
Unions would be happy to work out some mutually
agreeable dispatch rules. With respect to the defini-
tion of "sufficient time" as used in the section, the
Company requested that the reference to 1 hour in
the provision be modified to specify 2 hours. No
agreement was reached on this section and the con-
sideration of the parties then turned to section 3,
entitled "Run Around." There was no agreement
reached on this section and the subject of layovers,
included in section 4 of the article, was next
discussed.
The Unions offered some modifying language to
this proposal designed, in essence, as a quid pro quo
for company acceptance of the guarantee of 8
hours' earning opportunity provided for in this sec-
tion. Woodward stated that he saw no "large area
of disagreement" pertaining to this matter. How-
ever, after consulting with the terminal managers
who were members of the bargaining committee,
Woodward stated that the modification suggested
by the Unions might cause some problems at one of
the Company's terminals and that, in light of this,
he would like to investigate the implications of the
modification proposed. This item was passed over.
Section 5 of article XXXII dealing with break-
downs and impassable highways was next discussed.
Woodward made certain inquiries regarding the ap-
plication of the Unions' proposal and conferred
with a member of his bargaining committee con-
cerning any problems that this proposal might
create. While this consultation was in progress
Blevins studied the Company's written counter-
proposal on this matter and offered the Company's
proposal as a substitute for the Unions' proposal
with certain liberalizing modifications. The Com-
pany agreed to the substitution.
The article on vacations was next discussed. With
respect to section 1 thereof, the Unions offered to
modify their proposal by extending to 18 years in
lieu of 16 years employment period necessary to
qualify for a 4-week vacation. The Company stated
that it would take this proposal under considera-
tion.
Section 6 of the vacation article was considered
next and the Unions offered an amendment to that
section which had the effect of modifying the for-
mula for the computation of vacation pay for road
drivers. This section as amended was adopted.
Article XXXIV, entitled "Holidays," was
discussed next. The Unions offered an amendment
to their original proposal to the effect that, in the
first year of the contract, the employee's birthday
would be observed as a holiday in lieu of Memorial
Day in Charlotte and Easter Monday at the Green-
sboro terminal. This proposal was made upon con-
dition that one additional holiday be granted during
the last year of this agreement. Woodward
"Joseph Woodward testified , in effect , that at this meeting Blevins of-
fered some amending language to this provision and that he, in turn,
requested time to consult the owner -operators concerning this I am con-
vinced that Woodward was in error in placing this action as having oc-
curred at the February 27 meeting Accordingly , the findings with respect
to the discussion of art XVII are based on the credited testimony of M 0
Hodge
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responded that the Company would take this
proposal under consideration.
Section 2 of the vacation article was next
discussed and the Company stated that it desired to
continue its present policy of paying straight time
to employees who were required to work on a
designated holiday. However, the Company offered
to augment this by the payment of an additional 1
day's pay. The Unions proposed to modify their de-
mand for double time on holidays to a request for
compensation at 1-1/2 times straight pay. The
Company agreed to take this proposal under ad-
visement.
The articles on health and welfare and pension
fund were next considered. The Unions stated that
they would agree to the Company's health and in-
surance program as outlined at the previous meet-
ing if, during the first year of the agreement, the
contribution of the employee for dependent
coverage be $2 instead of the $3 proposed; that
during the second year of the agreement his con-
tribution would be $1 per week; and during the
third year of the agreement the Company would as-
sume the entire cost of dependent coverage. Addi-
tionally, the Unions included as elements of this
offer the requirement that the Company continue
its sick leave pay based on the percentage that was
allowed under present practice; and that the Com-
pany continue in effect its present profit-sharing
plan. The proposal as outlined by Blevins also pro-
vided that if this proposal was agreed to the Unions
would withdraw their request for the central states
health and welfare plan and for the central states
pension plan. Woodward, speaking on behalf of the
Company, stated that the Company would take this
proposal under consideration.
Article XLI, entitled "Workday-Workweek," was
next discussed. The position of the Unions and the
Company with respect to the definition of a work-
day and a workweek remained unchanged.
At this meeting, section 12, subparagraph (b),
was withdrawn by the Unions.
The parties next discussed the subject of wages.
Speaking on behalf of the Unions, Blevins proposed
that the Company pay 15 cents per hour to em-
ployees for all hours worked between September
15, 1968, and the effective date of the contract.
Blevins further proposed that the Company grant
an additional 15-cent increase in wages upon the
effective date of the agreement and that 15-cent-
per-hour increases be granted in each of the
remaining 2 years of the agreement.
Further, with respect to wages, the Unions
proposed that the mileage compensation of line-
haul drivers be at the rate of 10 cents per mile dur-
ing the first year of the agreement, 10-1/2 cents per
mile during the second year, and 11 cents during
the third year. The Unions' proposal also contained
38 Joseph Woodward testified that as the meeting adjourned Blevins ob-
served that the Unions had applied for strike benefits and further observed
the requirement that wild drivers be paid one-
quarter cent per mile over and above that paid to
line-haul drivers.
No agreement was reached on the subject of
wages and the meeting adjourned with an agree-
ment between the parties that the next meeting
would be held on March 13.31
(13) The meeting of March 13
The Unions opened the negotiations at this meet-
ing by inquiring if the Company had any response
to its suggestion that article I, section 2, dealing
with transfer of company title and interest be
withdrawn in return for the grant of a checkoff
provision, as provided in article II. The Company
responded that it would not accept this proposal at
this time and stated its objections to a checkoff of
dues. Woodward, speaking on behalf of the Com-
pany, again stated the Company's position that
there were already too many deductions from em-
ployee paychecks and that such deductions had the
effect of causing employee dissatisfaction. No
agreement was reached on these matters and they
were marked "hold."
At this point in the meeting, Woodward, speak-
ing on behalf of the Company, again mentioned the
Company's desire for a longer probationary period
than that provided in article III, section 4. Blevins,
speaking on behalf of the Unions, again stated that
the parties had reached agreement on this provision
and again mentioned the Unions ' willingness to give
relief on this item if the Company would do so on
some other items. The Company stated it would
consider the suggestion and the discussions turned
to article VI, maintenance of standards.
In discussing this article, the Company sought to
have the items to be covered by this section
specified in detail. The parties were not successful
in this and the Company stated that because this
was a "cost item" it would have to be considered
along with any wage offer that the Company might
make. The discussion then turned to article VII
dealing with grievances.
The discussion of the grievance article centered
around the Company's objection to binding arbitra-
tion. Woodward, speaking on behalf of the Com-
pany, inquired if there was some manner in which
the agreement could be reopened if a contract were
reached and a provision of the agreement proved
unworkable. He stated that he was inexperienced in
collective-bargaining matters and was seeking
guidance. Blevins, speaking on behalf of the
Unions, stated that it would not be impossible to
reopen the agreement but that it would be quite ir-
regular. This led to a discussion of approaches
other than a binding arbitration provision and
Woodward broached the concept of mutual agree-
that while he did not want to "threaten the company " the negotiations had
"dragged out "
STANDARD TRUCKING CO.
ment as an alternative grievance settlement ap-
proach . In response , Blevins stated that if the Com-
pany was suggesting a "mutually -agreeable arbitra-
tion " concept that he thought the parties could
draft some appropriate provision . They endeavored
to do so . For approximately the next hour, the
parties worked on a draft of language . 37 The draft
that resulted from this effort read as follows:
If no majority decision is reached by the com-
mittee, then the matter may be submitted to an
impartial arbiter by a mutual agreement
between the company and the Local Union
within 10 days from the date of failure of the
committee to reach a majority decision. If the
parties cannot agree on arbitration , then either
party may resort to any lawful economic
recourse , including the right to strike or to
lock out , notwithstanding any provisions to the
contrary contained in this Agreement.
Using the Unions ' proposal as the reference point,
it was suggested that sections 6 and 7 of the
Unions ' proposal be deleted and that the draft lan-
guage be substituted therefor.
After the draft had been completed Blevins
inquired if the parties had agreement on this article
and Woodward answered that he thought this
would "probably be the answer " but that the Com-
pany desired to be given time to consider the new
language. The article was passed over.
The subject of owner-operators , as contained in
article XVIII , was next considered. In the discus-
sion that transpired with respect to this provision,
the Unions stated that in event of vacation or illness
the owner could drive in place of his own employee
driver . Moreover, regarding this provision, the
Company again stated that it had not been able to
discuss with all of its owner-operators the provi-
sions pertaining to the subject of owner -operators
which were before the parties . This article was
passed.
Consideration then turned to article XXXII,
paid-for time . With respect to section 1 thereof the
Company inquired as to the meaning of the terms
"all time spent in the service of the Employer," and
by "delay time ." The Unions stated that a line-haul
driver would receive his straight hourly compensa-
tion for delays and, in addition , would be paid 50
cents for each trailer drop or each hookup. The
Company responded that the 50 -cent provision had
not previously been mentioned by the Unions and
that a short-line carrier could not withstand this
level of compensation. The Company quoted
statistical data contrasting the average freight bill of
the Company with the average bill of long-line
freight companies and interline companies. The
data revealed that the average freight bill of the
Company was substantially less than that of the
" The testimony of M 0 Hodge is to the effect that both parties, work-
ing in conjunction, contributed to the draft The testimony of Joseph
Woodward is to the effect that the draft was the product solely of the union
representatives While I am convinced that the Unions' representatives by
585
other types of carriers compared. The Company
further stated that delays were an unavoidable at-
tribute of the type of operation in which the Com-
pany was involved. At this point the company
representatives caucused.
After the caucus had terminated the Unions of-
fered a provision which would grant 30 minutes of
free time, not to exceed 2 hours' total in any
driver's tour of duty, as an alternative to their exist-
ing proposal. The Company stated that as this was a
cost item, it desired time in which to consider the
proposal, and the discussion turned to section 4 of
this article.
With respect to this section Woodward stated
that the Company had not had sufficient opportuni-
ty to consider the cost implications of the modifica-
tions proposed in this section. Accordingly, the
parties passed this item.
The next article discussed was article XXXIII
dealing with vacations. The Company again stated
its proposal that it would offer I week s vacation
after 1 year's service; 2 weeks after 3 years' service;
3 weeks after 15 years' service; and 4 weeks after
20 years' service. The Unions inquired if this was
the Company's final proposal on this matter and the
Company stated that it was at this time. The article
was marked "hold."
Article XXXIV, dealing with holidays, was next
considered. With respect to this article, the Com-
pany stated that it was adhering to its proposal of
six -paid holidays and that, under section 2 of the
holiday article, it would offer a 6-hour minimum
guarantee but that it would compensate employees
working a holiday only at regular straight-time pay,
plus 1 day's pay. This article was also marked
"hold."
The health and welfare and pension fund articles,
articles XXXVII and XXXVIII, respectively, were
next discussed. The Company proposed adoption of
the Company's insurance plan as outlined at the
previous meeting. In response thereto Blevins
requested the Company's answer to the Unions'
proposal that employee contributions to the health
and welfare plan be phased out over the 3 years of
the collective-bargaining agreement. The Company
responded that it was its position at this time that
the employees should continue to pay for depen-
dent coverage. However, the Company stated that
it would accept the Unions' proffer of the
withdrawal of the central states southeastern pen-
sion fund. The Unions declined this and the articles
were passed over.
Article XLI, workday-workweek, was the next
subject of discussion between the parties. The
Company stated its acceptance of the proposal that
the workweek should consist of 5 consecutive days,
but that it was the Company's proposal the work-
reason of their greater experience in collective-bargaining methodology
and terminology made the major contribution , I find that the draft was a
product of discussions and redrafting to which the company representa-
tives made some contribution
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day would consist of 9 consecutive hours and the
workweek should be comprised of 45 hours. The
Company further stated that it was its position that
overtime compensation for dock and warehouse
employees commence after 45 hours of work in any
given workweek.
The position of each party was unchanged with
respect to section 5 pertaining to the use of over-
time work in calculating the minimum guarantee
for regular employees.
Article XLI was passed over and the article deal-
ing with wages was next discussed.
The Unions requested that the Company respond
to their wage proposal. Woodward answered that
the Company would grant a 15-cent-per-hour wage
increase effective on the date on which the agree-
ment was signed . Woodward inquired if the Unions
would accept a lump sum payment to cover
retroactive pay. There followed a caucus and after
the caucus had terminated the Unions stated that
retroactive pay in the amount of $175.50 should be
granted to each employee regularly employed by
the Company since September 15, 1968. Blevins
stated that this sum was calculated on the basis of
15 cents per hour, based on a 45-hour week
beginning September 15, 1968. He calculated that
26 weeks had passed since the wage increase was
granted.
In response , the Company proposed a payment in
the amount of $75 to cover retroactive pay for all
employees who had been on the payroll on a con-
tinuous basis since September 15, 1968. The
Unions responded that the Company had granted
September 15 wage increases at other terminals for
a "definite reason" and stated, in substance, that
the Company should be willing to treat the em-
ployees at the Charlotte and Greensboro terminals
in like manner . Woodward produced records which
he stated, in substance, established that the wage
increases tnat had been granted were in keeping
with the pattern of past periodic wage increases.
The Unions stated that the Company's wage
proposals would be presented to the employees
along with all other company proposals and posi-
tions. However, Blevins stated that he hoped that
future negotiating meetings would not be under
"additional pressure." In conjunction with this
statement, he made reference to the possibility of a
strike vote being taken.38
The Company stated that its offer with respect to
mileage rates for drivers remained the same.
The parties then considered article XLV dealing
with the length of the agreement. The position of
the parties on this proposal remained unchanged
and the meeting ended at this point.39
38 The testimony of M 0 Hodge makes no reference to any statements
by the Unions that the Company's wage proposals would be presented to
the membership or to the possibility of a strike vote However, the record
reveals that , in point of fact , strike authorization was granted by the mem-
bership of both locals a few days after the March 13 meeting In all of the
circumstances , I credit the testimony of Joseph Woodward with respect to
the mention of this potentiality at the March 13 meeting
(14) The meeting of March 25
At the commencement of the March 25 meeting
the Company submitted to the Unions a draft of
proposed language on the subject of grievances and
disputes. The language submitted read as follows:
If the parties so agree, they may submit to ar-
bitration any matter which they have been una-
ble to resolve by means of the steps above pro-
vided for. If and when it is agreed that there
shall be such an arbitration, the arrangements
therefore and the exact question or issue to be
submitted to arbitration shall be at the same
time determined and settled upon.
The Unions accepted the Company's submission
and stated that the Unions would take into con-
sideration the Company's proposal. There was no
further discussion with respect to this matter at this
point in the meeting.
Thereafter Blevins stated that a strike vote had
been taken by the membership and Blevins in-
formed the company representatives of the result of
the vote. Woodward thereupon asked Blevins if the
Unions were interested in bargaining or in striking.
The parties then proceeded to a consideration of
the proposals upon which no agreement had been
reached.
The first articles considered were those relating
to transfer of company title and interest and to
checkoff of dues. The position of each of the
parties remained the same and consideration then
turned to article IV, maintenance of standards.
With respect to maintenance of standards Wood-
ward acknowledged that the principal dispute per-
tained to the obligation of the Company to furnish
uniforms and rain gear, but Woodward stated that
these were tied to the wage proposal and stated his
desire to defer this item until decision had been
reached with respect to wages. As a consequence
the parties moved to a consideration of article VII,
grievances and disputes.
When this subject was reached, the Company
submitted to the Unions a proposal which read as
follows:
If a grievart" or grievances have not been
satisfactorily settled by the procedure provided
for in this Article, the Union shall have the
right to strike with respect to the same, but
only upon the following conditions and subject
to the following limitations.
If the Union desires to strike with respect to
such grievance or grievances, then within thirty
(30) days after Step 3 of the aforesaid
grievance procedure has been concluded, the
Union shall give written notice that it intends
"Joseph Woodward testified that during his participation in the negotia-
tions, C W Hemby, who, as found, was hospitalized because of an ac-
cident following the February 27 meeting, had stated with respect to the
Company's preference for a I-year agreement that as the Company was en-
gaging in its first bargaining experience it desired a I-year agreement so
that "[it] would know what it had "
STANDARD TRUCKING CO. 587
to strike with respect to such grievance or
grievances. At the expiration of sixty (60) days
from the giving of such written notice, and
only at the expiration of such period, the
Union may strike, and if it desires, also engage
in lawful picketing, on account of the
grievance or grievances, as to which notice has
been given, but not for any other cause or
reason.
Once the Union has given notice of intention
to strike, it may not give another such notice
until the expiration of one hundred twenty
(120) days from the date of the preceding
notice.
Except for such striking or picketing as is
here provided for, the Union and the em-
ployees shall adhere and conform to the provi-
sions of the article of this Agreement, entitled
"No Strikes-No Lockouts."
In case the Union chooses not to strike at
the end of a sixty (60) day notice period, as
provided for above, then the grievance or
grievances, as to which such notice of strike
was given, shall be considered as settled and
ended, and the same shall not thereafter be the
subject of any strike or other action prohibited
by the article of this Agreement, entitled "No
Strikes-No Lockouts."
Further the proposal contained a provision that,
except as above provided, there would be no "con-
certed action of any nature which has as its purpose
or effect the interruption of or interference with the
Company's operation." The Unions stated that the
Company's proposal was not acceptable to the
Unions as a substitute for the language which had
been worked out on the matter of arbitration at the
previous meeting. Moreover, the Unions stated that
the Company's proposal was not acceptable to the
Unions as a means of final settlement of grievances
and disputes. Blevins stated, however, that the
Unions would accept as a method of settling the
issue with respect to arbitration the language which
had been worked out at the previous meeting.
Blevins inquired if the Company's proposals in-
dicated their final position on the matter and
Woodward stated that it was at this time.
The article relating to the owner-operators was
next considered. The Unions inquired if the Com-
pany had completed its consultation with all lease
operators concerning the language previously sub-
mitted concerning this issue. The Company stated
that it had but noted that there were a few modifi-
cations which it desired to make in the draft. The
Unions agreed to the modifications suggestion by
the Company and during the bargaining session the
parties went over the entire wording of the
proposed section 1 and reached agreement with
respect to it.
Paid-for time was next considered and the
Unions sought a statement of position from the
Company with respect to its most recent proposal
on delay time at the terminals. The Company stated
that it did not now pay for terminal delays and
would not do so.
Section 3, dealing with run-around time, was
discussed and it was the consensus of the parties
that agreement could be reached on this item
providing dispatch rules could be worked out.
There followed some further discussion with
respect to section 4 pertaining to layovers and the
Company stated that it had checked out the
problem deriving from proposed amendments of-
fered by the Unions with respect to layovers and
could not agree to amended language.
As a consequence of the agreement entered into
on section 4, article XXXII, drivers were guaran-
teed an 8-hour earning opportunity at his hourly
rate of pay. Under the Company's existing practice
there existed no earning opportunity based on
hourly pay in the event of layover and the driver's
protection in this circumstance derived from the
1,500-mile-per-week guarantee accorded him by
the Company.
Article XXXIII relating to vacation was next con-
sidered. The positions of the respective parties
remained unchanged and they then moved on to
the subject of holidays. Each of the parties adhered
to its previous position regarding this matter and no
agreement was reached.
Article XXXVII dealing with health and welfare
was then discussed. The Company again outlined its
proposal relating to hospitalization, sick pay, salary
continuation, and dependent coverage. It urged
that its proposal with respect to these matters be
accepted. However, the Unions stated that their
position had not changed with respect to the health
and welfare proposal and this matter was passed.
Workday-workweek was next considered and the
Company stated that its position with respect to this
provision had not changed. Blevins inquired if the
Company was stating its final position on this issue
and Woodward stated that it was at this time. The
parties then moved to a consideration of wages.
The Unions asked if the Company had a counter-
proposal with respect to wages and Woodward,
speaking on behalf of the Company, stated that the
Company was offering a 15-cent-per-hour increase
for all hourly paid employees, effective on the date
of the signing of the agreement; one-half-cent-per-
mile increase for road drivers and wild drivers; and
that it would not propose $100 lump sum payment
in lieu of a 15-cent-per-hour retroactive pay in-
crease requested by the Unions for Charlotte and
Greensboro terminals' personnel.
The Unions reiterated their demand for 26 weeks
of retroactive pay at the rate of 15 cents per hour
for each employee at the two terminals. No agree-
ment was reached on the matter of wages and the
discussion turned to the subject of safety awards.
There was no agreement andl the parties next con-
sidered the length of the agreement.
The Company stated that it was still proposing a
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1-year agreement.
At this point in the meeting the Unions requested
time for a caucus. The Unions caucused privately
and after the union personnel had returned to the
meeting room Blevins stated that the Company's
proposal on arbitration was not acceptable. He then
read a written statement to the Company which had
been prepared by the Unions' negotiating personnel
during the caucus. In substance, the statement was
to the effect that the Unions saw no need at this
time to schedule a further meeting in that the
parties had made little progress in the meeting
which was then transpiring and in the meeting that
had taken place theretofore. The statement addi-
tionally asserted the Unions' readiness to meet at
any time that the Company would be "in a position
to show some movement." Thereupon Woodward
requested that Blevins read the statement again and
Blevins did so. Woodward answered that in his
opinion the parties had made progress. However,
Blevins replied that there had been "very little"
progress in the recent meetings and that the at-
titude of the Company in the last few bargaining
sessions had indicated to him that the Company
was not making an effort to reach an agreement.
Woodward answered that the Company was "sor-
ry" that the Unions felt that way and the meeting
adjourned.
(15) The Company's April 1 letter
By letter dated April 1, the Company by letter in-
formed the Unions of its desire to put into effect for
unit employees a 15-cent-per-hour wage increase
and the health and welfare plan as offered at
negotiations. In pertinent part the letter also read as
follows:
As you realize the 15 cent per hour wage in-
crease is already in effect for the employees at
our Terminals which are not represented by
your Union. The improved insurance benefits
and coverage itemized above, we plan to put
into effect, for the employees at the Terminals
not represented by your Union, on May 1.
It seems to us that the employees at the
Charlotte and Greensboro Terminals deserve
this wage increase and these improved in-
surance benefits and coverages, and we would
like to go ahead and make these effective for
the employees at these two Terminals.
These matters have been fully discussed and
bargained between us. We do not know of
anything further to be discussed on these sub-
jects. Unless we hear from you to the contrary
right away, we will go ahead and put the 15
cent per hour wage increase into effect
beginning with Monday, April 7. The earliest
we can get the improved insurance benefits
and coverages into effect will be May 1, but we
will likewise plan to do this unless we hear
from you to the contrary.
Our taking these steps will, of course, be
without prejudice to your continuing to bar-
gain , if you wish, for further wage increases
and further improvements in insurance benefits
and coverages - as on all other matters in-
volved in our present negotiations.
By telegram dated April 3 the Unions informed
the Company that they considered the Company's
proposal to constitute an unfair labor practice and
to constitute further proof of the Company' s inten-
tion to undermine employees' support of the
Unions and the Company's continued bad-faith bar-
gaining . The telegram contained a demand for "im-
mediate and continuous negotiations to begin on
April 4, 1969." The Unions requested an im-
mediate reply.
By reply telegram dated April 3 the Company
stated its willingness to negotiate further with the
Unions concerning matters dealt within its letter of
April 1 and all other matters. It suggested that a
meeting be held on April 9. The Company stated.
however, its doubt that continuous negotiations
were either "practicable or possible."
The Unions responded by telegram dated April 4
to the effect that the April 9 meeting date was ac-
ceptable to them.
(16) The meeting of April 9
As a result of the telegraphic exchanges between
the parties, they met in collective-bargaining ses-
sion on April 9. In attendance at the meeting was a
representative of the Federal Mediation and Con-
ciliation Service. The meeting commenced by
Woodward stating that the Company desired to put
into effect the 15-cent-per-hour wage increase and
the insurance plan outlined in the Company's letter
of April 1.40 Woodward stated that May I would be
the anniversary date of the plan.
Blevins stated that the Unions were opposed to
the Company's proposed action and stated that it
would constitute an unfair labor practice.
For the benefit of the mediator the parties then
listed the items upon which agreement had not
been reached. They were: transfer of company title
and interest; checkoff of dues; maintenance of stan-
dards; grievances and disputes; paid-for time; vaca-
tions; holidays; health and welfare; workday-work-
week; wages; milegage and hourly rates for road
drivers; safety awards and/or bonus; and termina-
tion of the agreement.
It was then suggested that each of the parties
select the four items which it considered most im-
portant in terms of reaching agreement. During the
course of the meeting that followed the Unions
'As of the close of the instant hearing no 1969 wage increase had been
granted employees at other terminals and the health and welfare plan had
not been instituted
STANDARD TRUCKING CO. 589
designated wages, which included paid-for time;
mileage and hourly rates; health and welfare;
grievances and disputes; and checkoff. The Com-
pany listed wages; insurance; workday-workweek;
and paid-for time.
In designating for the benefit of the mediator the
items that remained open, Woodward, on behalf of
the Company, stated in summary form the position
of the Company on each of these items as it had
been articulated at previous meetings. During the
day's meeting the mediator met separately with
each of the parties. The separate discussion
between the Company and the mediator lasted for
approximately 40 minutes.
During the course of the day's session both
Woodward and Blevins stated their conviction that
progress could be made on the items still open.
At the close of the meeting it was agreed that the
Federal mediator would set the date for the next
meeting. Woodward stated that the Company
would have its final proposal on open items ready
by April 11. The meeting ended with agreement
that the Company would contact the Federal
mediator and he would then set a date for the next
meeting.
(17) The April 18 meeting
The parties next met on April 18. Present at the
meeting was the Federal mediator who had ar-
ranged the meeting.
The mediator commenced the meeting by asking
the parties to state their respective positions con-
cerning the items that were still open. The Unions
responded by stating that their position had not
changed with respect to any of the items. Wood-
ward responded on behalf of the Company. He out-
lined the Company's position with respect to each
of the open items . In essence , the position of the
Company as stated by Woodward at this meeting
reflected the position the Company had taken with
respect to each of the items when they were last
discussed in negotiations between the parties.
With respect to the health and welfare article,
Woodward stated that the Company was prepared
to put the new hospitalization insurance proposal in
effect on May 1 and desired to incorporate the sick
pay plan in accordance with the formula last
presented by the Company. He stated that the
Company would continue its present salary con-
tinuation plan to which the employee made con-
tributions.
With respect to safety awards and/or bonuses,
the Company stated that it would present the
awards for calendar year 1968 but would discon-
tinue the awards thereafter in light of the fact that
all employees did not benefit from the awards.
Woodward stated the Company would continue the
presentation of safety pins and would consider a
new award plan if one covering all employees could
be devised.
With respect to maintenance of standards,
Woodward sought to have defined all items which
would be encompassed within this article. Barbee
stated that the parties would be "sitting around the
table all day" endeavoring to list everything
covered.
After Woodward had completed the Company's
summary of position, the mediator inquired if the
Unions desired time to formulate their response.
Blevins stated that he did not need time because he
could not take the Company's offer back to his
membership and recommend its approval. Barbee
indicated his concurrence with Blevins. Thereupon
the mediator requested the company committee to
leave the meeting room to facilitate a caucus
between the union representatives and himself. The
Unions then caucused with the mediator.
After the caucus had ended the Company
returned to the conference room and Blevins stated
that the Company's proposal was not acceptable
but that the Unions would be available for further
meetings . Barbee agreed. Woodward stated that the
Company also would be available for further
meetings and the meeting ended at this point.
(18) The April22 strike
The evening of March 16 the members of Locals
71 and 391 met in separate meetings at their
respective meeting halls in Charlotte and Greens-
boro. The meeting of Local 71 was attended by
129 members and 52 members attended the meet-
ing of Local 391. The meeting of Local 71 was
presided over by W. C. Barbee, president of the Lo-
cal, and that of Local 391 was under the direction
of Bruce Blevins , secretary-treasurer.
At their respective meetings Barbee and Blevins
discussed with the employees the progress of col-
lective-bargaining negotiations. At the meeting of
Local 391 M. O. Hodge gave a detailed description
of the bargaining positions of the parties with
respect to each of the articles contained in the
Unions' proposal. A similar extensive explanation
was undertaken at the meeting of Local 71 by Bar-
bee. At each of the meetings there was considera-
ble discussion from the floor concerning the collec-
tive-bargaining negotiations. In due course, at the
separate meetings, both Barbee and Blevins stated
to the membership that, in substance, in their
opinion the Company was not negotiating in good
faith and had no intention of executing a collective-
bargaining agreement. At each of the meetings ac-
ceptance of the Company's proposal was put to a
vote and was overwhelmingly defeated. Thereafter,
at each of the meetings a strike authorization vote
was taken and it carried by a wide majority.
On April 22 picket lines were established at the
Charlotte and Greensboro terminals. Pickets
patrolled and carried picket signs with the legend:
"Standard unfair to its employees on strike Team-
sters Locals 71 and 391."
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(19) The telegram concerning wages
On April 23 the Company sent the following tele-
gram to the Unions:
ON APRIL ONE WE WROTE YOU STATING OUR
WILLINGNESS AND DESIRE TO GO AHEAD AND PUT
A 15 CENT PER HOUR WAGE INCREASE INTO
EFFECT AT CHARLOTTE AND GREENSBORO
TERMINALS, WE POINTED OUT THAT THE MATTER
HAD BEEN FULLY DISCUSSED AND BARGAINED
BETWEEN US. NEVERTHELESS YOU OBJECTED TO
OUR PUTTING THE INCREASE INTO EFFECT AND
WE REFRAINED FROM DOING SO SINCE THEN WE
HAVE HAD TWO MEETINGS IN WHICH THIS SUB-
JECT HAS BEEN FURTHER BARGAINED AND
DISCUSSED YOU DO NOT SEEM TO HAVE
ANYTHING FURTHER TO SAY OR SUGGEST ON THIS
SUBJECT. NEITHER DO WE. THEREFORE FOR THE
REASON PREVIOUSLY EMPHASIZED WE WILL
PROCEED TO GO AHEAD AND PUT THIS WAGE
INCREASE INTO EFFECT THIS IS OF COURSE
WITHOUT PREJUDICE TO OUR FURTHER
BARGAINING ON ADDITIONAL WAGE INCREASE AS
ON ALL OTHER MATTERS
(20) The May 20 meeting
The next meeting was held at the offices of the
Federal Mediation and Conciliation Service on May
20. The parties gathered in the morning but met in
separate offices. The mediator met first with the
unions' negotiators who indicated a desire to modi-
fy some of their proposals. Time was alloted to the
Unions to accomplish this task and no negotiations
between the parties transpired during the morning.
The first meeting between the parties occurred
after the lunch hour and during the afternoon.
At the outset of the joint meeting, Woodward,
responding to a question by Blevins, stated that the
Company had no new position to present on any of
the open items. Blevins stated that the Unions did
have a new offer to make concerning these issues.
Then, in open meeting, Blevins read to the com-
pany representatives the Unions' new proposals
stating that they were being offered as a "package."
The Unions' proposal, as read by Blevins, was to
the effect that the Unions would withdraw their
request for transfer of company title and interest;
their position with respect to checkoff remained
unchanged; the only unresolved issue under the
maintenance of standards proposal related to
uniforms and rain gear; with respect to arbitration
the Unions would accept the language worked out
by the parties in prior negotiations; 1 hour of ter-
minal delay could be incurred without cost to the
Company provided no work was performed during
the delay but that drivers would be compensated at
their hourly rate for all time worked; the Unions
would accept the Company's vacation proposal; the
Unions would accept the six holidays that the Com-
pany was presently observing provided that one ad-
ditional holiday would be added in the third or final
year of the agreement; compensation on holidays
would be at one and one-half times the hourly rate,
with the Unions abstaining from the guarantee for
the minimum number of hours worked on a
holiday; the Unions would accept the Company's
health and welfare plan and out-of-work benefits as
proposed by the Company at the meeting of April
18, provided employee contribution for benefit
coverage be reduced to $1.50 per week for the life
of the contract; the Unions would agree to a 9-hour
day and 45-hour workweek, with overtime compen-
sation after 9 hours in any 1 day or 45 hours in any
I week for all hourly paid employees; all time
worked by hourly rated on the sixth or seventh day
would be compensated at one and one-half times
straight-time rate; if the Company accepted section
11, article XLI, the workday-workweek provision,
dealing with minimum weekly guarantees, the
Unions would assure the Company against any
"problem" as far as peddle runs were concerned;
with respect to wages, the Unions would accept a
flat sum of $200 for all employees who had been
employed at the Charlotte and Greensboro ter-
minals at the time the wage increase was placed in
effect at other terminals; with respect to employees
employed since September 15, 1968, a flat rate of
$6 per week for all weeks they had worked would
be accepted in lieu of retroactive compensation;
the Company would increase wages 30 cents per
hour effective with the date of the contract for the
first year of the agreement; in the second year of
the agreement wages would be increased an addi-
tional 15 cents and in the third year of the agree-
ment an additional 10 cents; the mileage rate for
line drivers be 9-3/4 cents per mile the first year,
10-1/4 cents per mile the second year, and 10-3/4
cents per mile the third year; the mileage rate for
wild drivers be 10 cents per mile the first year, 10-
1/2 cents per mile the second year, and 11 cents
per mile the third year; hourly rates for drivers be
$3.25 per hour the first year, $3.40 per hour the
second year, and $3.50 per hour the third year; the
Unions would draw their proposal for safety awards
and bonuses; and the contract be for a 3-year term.
After Blevins had completed his presentation of
the Unions' proposals he inquired if the Company
were willing to accept them. Woodward requested
that the Company be allowed some additional time
to consider the proposals, whereupon Blevins stated
that the Unions desired to negotiate and requested
that the Company do the same. Blevins requested
that the parties meet the following day in an effort
to resolve the issues that confronted them. Blevins
inquired if Woodward had authority to negotiate on
behalf of the Company and Woodward assured
Blevins that he did. However he reiterated his
desire to further study the proposals of the Unions.
Blevins again requested that the parties meet again
the following day and Woodward replied that it
would be impossible for the committee to meet and
asserted that the Company would be in touch with
STANDARD TRUCKING CO. 591
either Blevins or the mediator to set a date for the
next meeting. The meeting ended at this point.41
(21) The meeting of May 27
At the outset of this meeting, Blevins inquired if
the Company would state its position with respect
to the Unions' proposals presented at the previous
meeting. Woodward responded by restating the
Company's position with respect to each open item
and by asserting that, as the Unions' proposals had
been presented as a package proposal, the Com-
pany could not accept it "as such at this time."
Blevins stated that the Unions had been dealing in
good faith and requested that the Company show a
similar good faith in negotiations by considering the
Unions' proposals and showing "movement" by giv-
ing a counterproposal on any open item. Wood-
ward responded that the Company had no counter-
proposal.42 Blevins charged the Company with
negotiating in "bad faith' and called the attention
of the Company to the fact that unfair labor prac-
tice charges had been filed with the Board. The
meeting ended on this note with both Woodward
and the Unions' representatives offering to meet
again if there was a change in the position of either
party.
There had been no subsequent collective-bar-
gaining negotiations and no exchange of proposals
or counterproposals.
C. Analysis and Summary
The Unions' effort to consummate their initial
collective-bargaining agreement with the Company
on behalf of the employee complements at the
Charlotte and Greensboro terminals began on Oc-
tober 15. At that meeting, for the first time, the
Company was presented with the national and bi-
state agreements in effect in a segment of the
trucking industry represented by the Teamsters.
While a degree of sophistication in labor relations
contractual matters may reasonably be imputed to
C. W. Hemby, deriving from his long managerial
experience in the trucking industry, Joseph, Wood-
ward, and the respective terminal managers, R. H.
McKinney, and George Phillips, were not ex-
perienced negotiators. Thus, the meetings of Oc-
tober 15 and 31 were exploratory meetings. The
Unions tested the receptivity of the Company to the
national agreements, as applied to the Company's
operations, and the Company sought explanations
as to the meaning, scope, and impact of certain
provisions of the national agreement. From the first
two meetings certain principal guidelines emerged.
By reason of the short-haul nature and limited geo-
graphic area of the Company's operations, the
Company declared the national agreement inap-
propriate as instruments for controlling the labor
relations of the Company and the Unions; the Com-
pany articulated its opposition to a limitation upon
its freedom to transfer company title and interest;
seniority and its application in job bidding, trans-
fers etc.. was disclosed as being a principal con-
cern of the parties; the -Unions announced tneir
desire for an agreement of 3 years' duration; and a
proposal applicable to the Company's operations
was to be prepared and submitted by the Unions.
Thus, it was at the third meeting of November 19
that attention turned to specific Unions' proposals,
reduced to writing in one comprehensive docu-
ment.
The proposal submitted by the Unions at the
third meeting was comprised of 45 separate articles
and numerous sections and subsections. The 15
meetings which followed were, for the most part,
devoted to a consideration of the Unions' proposal
under an agreed-to procedure whereby each sec-
tion and article was considered separately.
By the end of the fourth meeting, which trans-
pired on November 20, the preamble and 22 arti-
cles of the Unions' proposal had been agreed to in
toto and with a minimum of discussion. These dealt
with the following subjects:
Protection of rights
Bonds
Passengers
Compensation claims
Military clause
Equipment, accidents, reports
Posting of agreement
Union cooperation
Union activities
Separation of employment
Inspection privileges
Separability and savings clause
Timesheets and timeclocks
Emergency reopening
Piggy-back, barge, etc.
Employees bail
Leave of absence
Discharge, suspension, or other disciplinary ac-
tion
Examination and identification fees
Pay period
Funeral leave
Jury duty
In addition, by the end of the November 20
meeting , the parties had reached agreement on 16
separate sections encompassed within 10 separate
" M 0 Hodge testified that in response to Blevins ' inquiry as to the
Company's position on the disputed issues, Woodward stated that the
Company's "position had not changed since April 18, 1969 " I do not
credit Hodge in this regard but find , rather , that Woodward stated merely
that the company committee desired time in which to study the Unions'
proposals It is most unlikely that after being presented with the Unions'
proposals Woodward would have, in one breath , stated an adamant posi-
tion on the part of the Company, and in the next breath articulated a
request for time in which to consider the Unions ' proposals
°R I credit the testimony of M 0 Hodge to the effect that after the Com-
pany rejected the Unions ' package proposal, Blevins invited counter-
proposals on any open item or items Woodward testified that at this point
in the meeting there was discussion but he could not recall its content
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
articles other than those described above, upon
which the parties had not been able to reach total
agreement . The sections agreed to by the end of the
fourth meeting included the following subject
matter : The standard recognition clause ; extension
to the Unions of equal opportunity to provide suita-
ble applicants for employment ; acceptance of
seniority as a prevailing practice ; a delineation of
those employee actions which would terminate the
accrual of seniority ; application of seniority in the
event of the Company's absorption of or merger
with another common carrier; protection of wage
minimums in the event of absorption or merger;
preclusion of direct contracts between the Com-
pany and employees ; protection of Unions ' bargain-
ing rights over rates of compensation for work per-
formed in connection with new equipment or
operations not covered by the agreement ; commit-
ment to use grievance procedures of the agreement
as a precondition to strikes , lockouts , or other legal
proceedings ; definition of Unions ' responsibility for
the acts of their authorized agents ; a limitation
upon the Unions ' legal liability in the event of
unauthorized strikes, slowdowns, walkouts, etc.;
discharge and disciplinary rights of the Company in
the event of the aforesaid employee unauthorized
actions; a picket line protection clause; a hot cargo
clause; a struck goods clause ; a proscription upon
mandatory purchase of certain specified equipment
as a condition of employment ; physical and sanitary
standards for company -furnished lodging ; and com-
pensation in lieu of company-furnished lodging.
In the course of the five meetings that followed,
through bargaining table discussions , the parties
refined their respective positions on some issues,
remained essentially adamant on others, and
reached accord on many. Thus, after completion of
the January 30 bargaining session-the ninth
between the parties and the seventh at which
discussion and consideration had centered around
the comprehensive written proposal of the
Unions-the parties had failed to reach agreement
in the following principal bargaining areas : Transfer
of company title or interest ; checkoff of dues;
maintenance of standards; arbitration ; owner-
operators ; compensation for delays under the arti-
cle dealing with paid-for time ; vacations ; holidays;
health and welfare ; pension fund ; workday-work-
week ; wages ( local and maintenance ); mileage and
hourly rates for road drivers; safety awards and/or
bonuses ; and termination of the agreement.
Additionally, at the conclusion of the January 30
meeting there remained unresolved subsidiary is-
sues related , to be certain , to the principal issues
which still separated the parties , but susceptible,
nonetheless , of separate consideration and resolu-
tion. Thus, still open at the end of the January 30
meeting were provisions relating to the coverage
under the agreement of part-time employees and
extension of fringe benefits to them ; the right of the
respective parties to the contract to resort to "law-
ful economic recourse " in the event of their inabili-
ty to reach agreement with respect to the subject of
workweek reduction under the maintenance of
standards article ; call-in time , runaround time,
layovers , breakdowns , and impassable highways as
elements of paid-for time ; a formula for computing
road drivers ' vacaction and holiday pay; and premi-
um pay for casual employees.
During the four meetings that followed , February
26 and 27 and March 13 and 25, respectively, the
parties reached agreement on the coverage of part-
time employees under the agreement ; pay for
layovers and delays resulting from breakdowns and
impassable highways under the paid-for time article;
a formula for computing vacation pay for road
drivers; and terms of an owner -operator article.
They achieved final agreement on no other issue
during this series of meetings ; and the Company's
position with respect to most of the unresolved is-
sues remained unchanged . However, the Company,
at the February 26 meeting , proposed a com-
prehensive health and welfare proposal containing
life insurance , accident , out-of-work , hospitaliza-
tion, surgical, and major medical coverage and
benefits ; stated its willingness to make immediately
effective a 15-cent -per-hour wage increase for all
hourly rated employees at the Charlotte and Greens-
boro terminals ; and indicated acceptance of the
call-in time article , conditioned upon fashioning of
dispatch rules . At the February 27 meeting, the
Company modified its position with respect to com-
pensating employees for work performed on
holidays by augmenting its offer of straight-time
compensation with an offer of 1 day's additional
pay. Further , at the March 13 meeting the Com-
pany abandoned its objection to all forms of ar-
bitration and asserted its desire to explore the con-
cept of "mutually binding arbitration ." At the
March 13 meeting also the Company accepted, in
principal, the Unions ' demand for retroactive pay
increases for hourly rated employees at the Char-
lotte and Greensboro terminals . Then , at the March
25 meeting the Company offered a proposal dealing
with arbitration and a modified pay proposal cover-
ing hourly rated employees and drivers . No further
agreement was reached on substantive issues at the
subsequent April 9 or 18 meetings. Thus , on April
22, when picket lines were established and the
strike commenced, principal bargaining issues still
unresolved related to transfer ofgcompany title or
interest ; checkoff of dues ; maintenance of stand-
ards ; arbitration ; compensation for delays under
the article dealing with paid -for time ; vacations;
holidays; health and welfare; pension fund; work-
day-workweek ; wages ( local and maintenance);
mileage and hourly rates for road drivers ; safety
awards and/or bonuses ; and termination of the
agreement.
The record fully supports the General Counsel to
the effect that throughout the negotiations the posi-
tion of the Company continued unchanged with
respect to the issues of transfer of company title
and interest , checkoff of dues , and termination of
STANDARD TRUCKING CO. 593
the agreement. It remained essentially fixed also on
the workweek issue . While the Company took in-
itiatives in endeavoring to distill proposals more ex-
plicit than those of the Unions on the subjects of
maintenance of standards and safety awards and
bonuses, the Company's position at the close of
negotiations was not discernibly different on these
latter two issues than at the beginning. In discussing
the Unions' vacation and holiday proposals, the
Company revealed a flexibility with respect to re-
lated questions of eligibility and formula for com-
putation of compensation, and at the meeting of
January 29 countered with a proposal for 4 weeks'
vacation after 20 years' service. This was a depar-
ture from existing company vacation allowances.
Throughout the negotiations the Company adhered
to its preference for sx paid holidays. The paid-for
time article was one extensively discussed and one
to which the Company gave tentative approval.
However, resolution of this issue was rendered
more precarious by the Unions' insistence, ex-
plicitly manifested for the first time at the March
13 meeting, upon compensation for driver delays
and for trailer hookups and drops. No material
progress was made on this issue after the March 13
meeting.
To the Unions' proposals on arbitration, health
and welfare , pension funds , wages (local and main-
tenance ), and mileage and hour rates for drivers,
the Company responded with counterproposals of
its own . While the Company's counterproposal on
arbitration is attacked as revealing company bad
faith, the General Counsel makes no contention
that the content or substance of the other company
counterproposals on health and welfare and on
wages were so vapid or lacking in substance as to
be further indicative of bad faith.
The General Counsel contends, in substance, the
unlawful nature of the Company's approach to its
bargaining obligations became clearly discernible at
the point of the February 26 meeting-the 10th
between the parties-at which time the Company
clearly disclosed its technique of adhering tena-
ciously to the "status quo" on key issues such as ar-
bitration, wages, checkoff, no-strike clause, the
length of the agreement, vacations, and holidays
while approving proposals inconsequential, or rela-
tively so, in their impact. Moreover, the General
Counsel attacks the Company's wage prop osal, its
arbitration proposal, and its acceptance ofthe call-
in time article subject to effectuation of dispatch
rules as strategems dissembling in nature and tacti-
cally designed to undermine the Unions.
However, the Company contends, in substance,
that it at all times bargained in good faith and that,
contrary to the General Counsel, during the course
of the first 10 meetings, and thereafter, the Com-
pany in good faith adopted proposals of the Unions,
many of which modified existing company practice
and constituted strictures upon managerial
freedom.
The record supports the Company's contention
that during the course of negotiations the Company
accepted the following union proposals which had
the effect of limiting managerial freedom and modi-
fying existing company practice: Interchange of
drivers; use of supervisors in performance of unit
work; probationary period; hourly rates for part-
time employees; separate seniority lists for main-
tenance and driving personnel; annual bidding of
runs; reporting period in the recall of laid-off em-
ployees; wage rate determination for operators of
new equipment; hot cargo, struck goods, and picket
line protection; 90-day qualification period for
bonding; payment of dischargees; leave of absence;
formula for computing vacation entitlement; pro
rata vacation pay for employees terminated prior to
1 year's employment; formula for computing road
drivers' vacation pay; compensation of employees
assigned to work tasks other than their own; 4-hour
work guarantee for called-back employees; em-
ployee job-following rights in the event of transfer
of operations or opening of a new terminal; and an
8-hour earning opportunity at hourly rate for road
drivers in lieu of their weekly mileage guarantee.
The impact in terms of cost or limitations upon
managerial freedom, or both, was with respect to
some of these items discernibly slight. Thus, with
respect to the interchange of drivers, the use of su-
pervisors in the performance of unit work, and the
payment of dischargees, the parties reached a side
agreement not spelled out in the contractual lan-
guage upon which they reached a meeting of the
minds, which went far in minimizing their stric-
tures. Further, the immediate impact of the provi-
sions governing the wage rate determinations for
operators of new equipment introduced into the
Company's operation and the keeping of separate
seniority lists for maintenance and driving person-
nel was slight. While the 90-day qualification
period for bonding extended the time increment al-
lowed under existing company practice, thus in-
creasing to a degree the interim risks to the Com-
pany in employing an unbonded employee, protec-
tion against the employment of untrustworthy per-
sonnel was still accorded the Company by the man-
datory bonding provision ultimately adopted.
However, other items, such as the requirement
for the annual bidding of runs; wage guarantees to
called-back employees; formulas for the computa-
tion of employee compensation in the event of in-
terchange or for vacation entitlement and qualifica-
tion; and the recognition of employee job-following
rights in the event of transfer of operations or open-
ing of new terminal were matters which had signifi-
cant discernible and immediate cost and opera-
tional impact upon the Company. Further, what-
ever the individual effect, either immediate or
potential, of any of the aforesaid agreed-to items,
the total cumulative impact was both predictable
and substantial.
However, the Company's willingness to reach
agreement on these items , as well as on items which
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrought no change in company practice, must be
evaluated in light of the General Counsel's conten-
tion that this apparent willingness to reach accord
on contractual proposals was merely window
dressing for the Company's predetermination to
frustrate the achievement of a meaningful collec-
tive-bargaining agreement by refusing to agree to
terms of fundamental importance to the Unions and
to unit employees.
D. Conclusions
1. Supervisory pronouncements and statements
It is the theory of the General Counsel that the
Respondent entered negotiations with a fixed deter-
mination not to reach an agreement with the
Unions. In this regard, the General Counsel con-
tends that the Respondent failed to accept the
results of the elections held in the fall of 1968
which led to the certification of the Unions and
after the elections "aggressively continued to cam-
paign" against the Unions "in order to destroy
[them]."
The background evidence of record reveals op-
position on the part of the Company to the
unionization of its Greensboro and Charlotte ter-
minals . But the preelection correspondence, in-
troduced into evidence by the Charging Party, is
not alone sufficient to establish a fixed determina-
tion on the part of the Company not to treat with
the Unions should the elections, as they sub-
sequently did, confer bargaining rights upon the
Unions. However, the General Counsel and the
Charging Party contend that the last paragraph of
the preelection propaganda above set forth con-
tains significant portents of bad faith on the part of
the Company and contains an accurate forecast of
subsequent company attitudes and actions.
To the extent that actions of Respondent's agents
away from the bargaining table may reflect the
Company's intention with respect to the ultimate
consummation of a collective-bargaining agreement
with the Unions, this thesis obtains a modicum of
support from the preelection "no-contract" edict of
Respondent's chairman of the board, T. E. Hemby,
confided to Assistant Terminal Manager Otho
Lewis. However, the General Counsel's theory is
not materially aided by the separate assertions
made by Harry Ezelle to employees Lewis and
Saunders to the effect that the company would not
sign a collective-bargaining agreement. The record
suggests that Ezelle was a low echelon supervisor
and it strains matters to suppose that top manage-
ment, engaged in the serious business of collective
bargaining, would confide its bargaining intentions
to a run-of-the-mill supervisor such as Ezelle. The
record establishes that C. W. Hemby and the ter-
minal managers abstained from predicting the out-
come of negotiations, and if Ezelle claimed
prescience with respect to company intentions,
either in the postelection period of 1968 when he
spoke with employee Lewis, or in the poststrike
period of September 1969 when he spoke with
Saunders, I am convinced he embarked upon an ex-
cursion of his own and repeated rumor. I am con-
vinced, however, that his knowledge of company
intentions was neither direct nor substantial.
Moreover, the record is insufficient to establish
whether Supervisors Ezelle and Shepherd were
speaking with any gloss of authority when, im-
mediately after the election in the fall of 1968, they
separately told employees that they had lost a wage
increase by voting for the union. The similarity of
the separate predictions of the two supervisors sug-
gests that they may have been giving currency to
sentiments of management and thus their state-
ments remain evidentiary fragments to be given
weight in determining whether the Company ap-
proached negotiations with an open mind or with
an intention to punish employees for their selection
of the Unions as their bargaining representatives.
Beyond this, I find that the other complaint allega-
tions of supervisory comment or utterances are not
supported by credited evidence of record. I find,
contrary to the General Counsel, that those alleged
as transpiring within the Section 10(b) limitations
period violate no provision of the Act.
2. Alleged efforts to denigrate and impede
But the General Counsel further contends that, in
a manner closely related to these pronouncements
and prognostications of management and supervi-
sion, the Company's bad faith is revealed by certain
stratagems employed propitiously in the course of
bargaining. It is the General Counsel's contention
that the Company's use of the wage issue was one
such device.
It is to be remembered that all hourly paid em-
ployees of the Company, save those represented by
the Unions, had received a 15-cent-per-hour wage
increase on September 15, 1968. Solely because of
the pendancy of the election and certification mat-
ters the Company, according to its own explana-
tion, abstained from effectuating the raises at the
Greensboro and Charlotte terminals represented by
the Unions. As found, during negotiations the
Unions demanded full wage retroactivity to Sep-
tember 15 in the form of a lump-sum payment to
each unit employee. The Company at first opposed
such a payment but at the meetings of March 13
and 25 its representatives proposed retroactive pay-
ments in sums less than demanded by the Unions as
essential to reflect true retroactivity to September
15. Then, on April 1, in writing, the Company
proposed to put into effect a 15-cent wage increase
without prejudice to continuing bargaining on the
subject of wages. The Unions objected and the
Company abstained. No progress was made on this
issue during the course of the two meetings that fol-
lowed and the Company on April23 telegraphically
advised the Unions that, in the circumstances and
STANDARD TRUCKING CO.
without prejudice to further bargaining on wages, it
intended to make immediately effective a 15-cent
wage increase for unit employees. It ultimately did
so in May, but the increases did not include a lump-
sum payment of $100 to each employee, the
amount which the company at the March 25 meet-
ing had offered as retroactive compensation. In its
April 23 telegram the Company did not, in terms,
declare negotiations at an impasse but it noted the
lack of progress on the issue in the two meetings
which had transpired after April 1, and observed
that neither She appeared to have any further sug-
gestions on the subject.
The General Counsel does not contend that the
wage increases were independently violative of the
Act but he asserts that they were an integral ele-
ment of a plan calculated to disparage and
denigrate the Unions. In short, contends, the
General Counsel, the wage action of the Company
reveals its bad-faith approach to bargaining.
Unlike the Alba-Waldensian case, 167 NLRB 695,
to which analogy is drawn by the General Counsel,
this is not a case wherein, during negotiations, a
multiplant employer grants wage increases to em-
ployees at unorganized plants while insisting upon
the status quo for organized employees.93 Rather,
the employees at the unorganized terminals of the
Respondent herein had been beneficiaries of a
periodic wage increase, effectuated in normal
course, but at a time very proximate to the certifi-
cation of the Unions. The Respondent's reason for
abstaining in a similar grant to unit employees was
its fear of unfair labor practice charges. As negotia-
tions proceeded, and the Unions insisted upon pari-
ty for unit employees in the form of retroactive pay,
the legal justification for continued abstinence by
the Company receded. It was in this factual context
that, following notice and discussion, the Company
effectuated the increase, but without foreclosing
further discussion on wages. The record establishes
that unit employees had rejected a proffer of less
than full retroactivity submitted to them by their
bargaining representatives as part of a package
Proposal from management. But following this re-
the Company's proffer and wage action
came. As I view the matter, effectuation of im-
mediate wage increases sufficient to bring about
present and prospective parity with unorganized em-
ployees, without jeopardy to the principal and/or
ultimate resolution of the retroactivity question, is
an action implying no disparagement of the collec-
tive-bargaining process or representative, and
should be welcomed by the Unions.44 It would
strain matters to conclude that either employees or
union representatives were deluded into thinking
that the grant of immediate wage increases
4s The wage increases at the unorganized plants in Alba-Waldensian oc-
curred 6 months after negotiations commenced
a See N L R B v Crompton-Highland Mills, Inc , 337 U S 217,
224-225
4S The issue of employee contributions to the plan was basic and not col-
lateral and thus distinguishable from the retroactive wage issue which was
595
foredoomed retroactive payment. I find this action
not to be indicative of bad faith on the part of the
Company. Similarly I perceive no departure from
the statutory mandate in the Company's notifica-
tion to the Unions of its desire, not carried to frui-
tion, to effectuate systemwide the health and wel-
fare plan it had offered to the Unions at the bar-
gaining table. Viewed from the vantage point of
April 1, when the notification was given, the posi-
tion of the parties with respect to the health and
welfare issue had hardened and they had recorded
no progress over a period of three bargaining ses-
sions on the question of a noncontributory premi-
um feature. On this issue , basic to the plan
proposed by the Company, the parties were in fun-
damental disagreement and, thus, effectively so
with respect to the entire health and welfare issue.45
The March 25 meeting, the last prior to the Com-
pany's April1 notification, terminated with no
further meetings scheduled and with the resump-
tion of negotiations in abeyance. While the Com-
pany's April1 written communication to the
Unions did not, in terms, assert a bargaining im-
passe it defined, essentially in impasse terms, the
status of bargaining with respect to the health and
welfare issue.
In its decision in Taft Broadcasting Co., WDAF
AF-FM TV, 163 NLRB 475, 478, the Board stated:
Whether a bargaining impasse exists is a
matter of judgment. The bargaining history,
the good faith of the parties in negotiations,
the length of the negotiations, the importance
of the issue or issues as to which there is dis-
agreement, the contemporaneous understand-
ing of the parties as to the state of negotiations
are all relevant factors to be considered in
deciding whether an impasse in bargaining ex-
isted.
The existence of an impasse with respect to one
bargaining issue is not precluded by the fact that no
impasse existed with respect to others. 46 In sustain-
ing the Board's order in Empire Terminal, the court
observed, also, that the finding of impasse on a sin-
gle bargaining issue is not negated by the fact that
the parties subsequently resumed negotiations on
issues other than that which was subject to impasse.
Further, the existence of an impasse is not dispelled
by the fact that following a strike or the passage of
time one of the parties moderates its preimpasse
position with respect to the issue.47
In the instant case, the Unions adhered to their
opposition to any employee premium contribution
as a facet of the company-proposed health and wel-
fare plan. The Unions reiterated this position at the
meeting of April 9 and at the meeting of April 18,
on which occasion the Company again specifically
susceptible of resolution separately or as part of the ultimate wage
package
48 See Empire Terminal Warehouse Company, 151 NLRB 1359, enfd sub
nom Dallas General Drivers, Local 745, Teamsters v N L R B, 355 F.2d
842 (CADC)
47 See Mission Manufacturing Company, 128 NLRB 275.
427-258 O-LT - 74 - 39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed giving companywide effect to its health
and welfare plan. In all the circumstances, I find
that an impasse existed on the issue of health and
welfare on and after April 1 and that at that point
in time the Company was free to make effective at
the Charlotte and Greensboro terminals the plan
which it had submitted to the Unions and which the
Unions had rejected . Because the effective date of
the plan at unorganized terminals was to coincide
with the anniversary date of the existing plan, its ef-
fectuation at those terminals imbued it with no in-
herent illegality. While its effectuation at unor-
ganized terminals might well have inferred an at-
tribution to company beneficence, the Unions
were not foreclosed from heralding the plan as a
product of the bargaining process. It evolved from
union-initiated bargaining and was an improvement
over existing counterpart benefits. It carried no
hallmark of disparagement either to the Unions or
to the bargaining process. In the circumstances, and
as the Company did not give effect to the plan, I
find no evidence of bad faith either in the Com-
pany's April 1 written notification of intent or its
oral bargaining table advisories that followed on
April 9 and 18, respectively.
Further, as I view the record, there are no other
significant manifestations of bad faith arising from
tactical as contrasted to substantive bargaining con-
duct of the Company. The evidence reveals a
failure of the Company to come forward with a
compilation of dispatch procedures, but this failure
is not revealed as having contributed to the inability
of the parties to reach agreement on the elements
of the paid-for time provision to which the
procedures related. Woodward credibly testified
that procedures had not been codified and that
managerial knowledge of the subject was diffused.
The record supports his assertion that definitive,
wide-ranging dispatch rules were nowhere extant in
the Company. That dispatch rules were to be
fashioned is established but the Unions did not
press the matter and it appears that the codification
of them was to take place extracontractually.
It is this latter feature that distinguishes company
insistence upon a cataloguing of items inclusive
within the maintenance of standards provision. The
provision, as contained in the Unions' proposal, was
one with potential broad impact upon the entire
range of existing working conditions and carried a
potential cost impact of significance. During
negotiations the Company strived unsuccessfully to
achieve a declaration reasonably descriptive of the
provisions' intended reach. The generalized oral as-
surances given by the Unions' negotiators at the
bargaining table to the effect that the number of
items at issue were few did not materially alter its
potential scope. The Company was striving for a
delineation of issues binding, for the term of the
48 N L R B v Herman Sausage Company, Inc, 275 F 2d 229, 231-
232 (C A. 5).
's N L R B. v American National Insurance Co , 343 U S. 395, 401-402
contract, and not vulnerable to the frailty of
memory or ad hoc claim on the part of either party
to the contract. Consequently, the Company's
refusal to accede on the maintenance of standard
issue and its insistence upon a definitive declaration
of the scope is not viewed as indicative of bad faith.
3. The separate allegations
However, it is the General Counsel's principal
contention that, notwithstanding any of the forego-
ing, the Company's bargaining table conduct on
substantive issues of fundamental importance fell
short of the mandate of the Act.
The duty to bargain defined by Section 8(d) of
the Act does not compel either party to agree to a
proposal or to make a concession. The obligation of
the employer to bargain in good faith does not
require the yielding of positions fairly maintained
nor does it permit the Board, under the guise of
finding of bad faith, to require the employer to con-
tract in a way the Board might deem proper .48 But,
while the Act does not compel any agreement and
does not permit Board or court regulation of the
substantive terms governing wages, hours, and
working conditions which are incorporated in
agreement , performance of the duty to bargain as
defined in Section 8(d) requires more than a
willingness to enter upon a sterile discussion of
union-management differences.49 The Board is em-
powered to consider in light of all the circum-
stances whether a counterproposal was made, or a
union proposal rejected, in goon faith or simply to
frustrate bargaining .50 "The ultimate issue [of]
whether the Company conducted its bargaining
negotiations in good faith involves a finding of mo-
tive or state of mind which can only be inferred
from circumstantial evidence" and is to be inferred
from the totality of its conduct.S1
a. Failure to adequately consider union proposals
I find little support in the record for the conten-
tion of the General Counsel that Respondent inde-
pendently violated Section 8(a)(5) of the Act by
failing adequately to consider the proposals of the
Unions. The refusal of the Company to agree to
separate proposals of fundamental importance of-
fered by the Unions does not reveal a paucity of
consideration on the part of the Company. Nor is
this shown by the refusal of the Company to modify
its position in any perceptible manner during the
negotiations on such issues as transfer of company
title and interest, checkoff, maintenance of stan-
dards, holidays, workweek, and termination of the
agreement. Rather, the record reveals that the
Company responded with reasoned explanation and
did so regarding these issues as with respect to all
S0 Capitol Aviation , Inc, 152 NLRB 745, 752, 753
b1 N L.R B. v Reed c Prince Manufacturing Company, 205 F 2d 131,
139-140(C.A 1), cert . denied 346U S 887
STANDARD
of the 14 principal issues which separated the
parties at the time of the April 22 strike and
thereafter until negotiations ceased on May 27.
This attribute of reasoned response substantially
negates the inference that the Company's approach
to bargaining was perfunctory. While it is clear the
Company, as would be anticipated, entered
negotiations with bargaining objectives formulated,
this formulation was not revealed to have been so
stolid as to be closed to instructive initiatives on the
part of the Unions. To the contrary, the record
shows a willingness on the part of the Company to
discuss and respond to each item proposed by the
Unions, with no foreclosure of opportunity.
Moreover, the evidence establishes that the
questions raised by the Company concerning an
array of issues which were resolved, many at the ex-
pense of change in company practice or policies,
were cogent and substantively important. Indeed,
the list of items agreed to and the detriment in-
curred by the Company in acceding to some
proposals which changed company policies and
practices forecloses any finding that the Company's
approach to bargaining was one of basic in-
transigence . The Company's tacit rejection during
negotiations of the draft proposal on "mutually
binding arbitration" and of the May 20 "package
proposal of the Unions, does not establish a failure
of good-faith attentativeness to union proposals.
These rejections were not preemptory but came
after passage of time sufficient to accord opportuni-
ty for reasoned appraisal. If the Company's
response in these instances were not, as the General
Counsel contends, what the Act required, it may
not be found, on this record, that the deficiencies
were founded in a failure on the part of the Com-
pany to sufficiently evaluate the substantive merits
of the proposals. I shall thus dismiss the complaint
insofar as it alleges a separate violation of the Act
based on this alleged deficiency in Respondent's
bargaining conduct.
b. The alleged failure to make adequate
counterproposals
In like manner the record evidence requires
dismissal of the complaint insofar as it alleges a
separate violation of the Act flowing from the
failure of the Company to offer adequate counter-
proposals. The evidence reveals that throughout the
negotiations , the Unions , seeking success in their
pilot bargaining effort with the Company,
manifested significant resilience on a variety of
matters to which the Company voiced opposition.
This resilience was not entirely matched by the
Company, but as found, in the ultimate, the Com-
pany acceded in a variety of bargaining areas which
changed company policy and practice. It advanced
detailed written counterproposals only with respect
to health and welfare and arbitration, and on the
occasion of its proffer of the summarily rejected
"package" counterproposal.
TRUCKING CO. 597
But because the Unions' proposed agreement was
being utilized as the basis of discussion, it is
misleading to gauge the Company's response to the
Unions ' bargaining initiative solely on the basis of
these few written proposals of the Company.
Through bargaining table discussion and proffer the
Company made affirmative proposals covering va-
cations , holidays , wages , mileage rates for drivers,
and safety awards and bonuses. It explored in detail
avenues of agreement on maintenance of standards
and the workweek issue. It defined its position with
respect to transfer of company title and interest,
checkoff, and termination of agreement and,
although these positions were unacceptable to the
Unions, the Company advanced reasons to support
its position . In a literal sense , the bargaining posi-
tion of the Company may be characterized as firm,
but firmness of a bargaining position does not con-
stitute bad faith. Here, unlike the employer in
N.L.R.B. v. Patent Trader, Inc., 415 F.2d 190 (C.A.
2), the Company sought no avoidance of the issues
dealing with the fundamental terms and conditions
of employment. Rather it addressed itself to the is-
sues seriatim , in accordance with the procedures
agreed to by the parties. This was done without un-
toward delay or avoidance. The Company defended
its positions willingly and candidly and sought no
foreclosure of discussion. It advanced nothing on a
take-it-or-leave-it basis. The nature of the negotia-
tions, then, were such as to minimize the need for
an extensive exchange of written proposals or oral
modifications. The substantive nature of the com-
prehensive written counterproposals offered by the
Company at the February 26 meeting, and the
refusal of the Company at the final bargaining ses-
sion on May 27 to respond to the Unions' final
offer with counterproposals of its own, is
hereinafter evaluated to determine the extent, if
any, these actions constitute elements of company
bad faith. However, I shall dismiss the complaint to
the extent that it alleges the Company indepen-
dently violated Section 8(a)(5) of the Act by failing
to make adequate counterproposals.
c. The dues-checkoff issue
Contrary to the General Counsel, I do not find
that the refusal of the Company to accede to the
Unions' demand for a dues checkoff provision con-
stituted a separate or per se violation of Section
8(a)(5) of the Act, or that its refusal was indicative
of bad faith . It is well established that union securi-
ty, including checkoff, is a mandatory subject of
bargaining about which an employer must bargain
in good faith . The record reveals that the Company
did not foreclose discussion of the Unions ' checkoff
proposal, which received extensive attention at
meetings on and after November 19, but neither
did it retreat from its position articulated initially at
meeting of November 19. A mere refusal on the
part of an employer to agree to a checkoff provi-
sion does not violate Section 8(a)(5) of the Act if
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the refusal is supported by reasons of substance, ad-
vanced in good faith, in furtherance of what ap-
pears to him to be legitimate business or self-in-
terest judgments.52 From the beginning, when the
checkoff proposal was first discussed at the meeting
of November 19, the Company took the position
that a dues checkoff would contribute to the
diminution of take-home pay and would generate
demands upon the Company for an upward adjust-
ment in wages. It was the Company's position that
union fealty should suffice to induce employees to
submit dues directly to the Unions. The Company
remained unmoved by the Unions' assurances that
a dues checkoff was entirely voluntary and was not
different in effect from other payroll deductions
which the Company was making at the behest of
employees. The Company responded with the ob-
servation, unassailable in my view, that a checkoff
would merely add to the shrinkage of take-home
pay and would run counter to efforts already un-
dertaken to reduce the number and variety of em-
ployee-directed payroll deductions. That the Com-
pany was endeavoring to limit the variety and ex-
tent of employee-directed payroll deductions is
established by the record. Further, the shrinkage
argument advanced by the Company is not specious
and is one of substance. Thus, common experience
establishes that a worker tends to measure his com-
pensation on the basis of net, expendable proceeds.
Although, in the beginning, an employer who
deducts dues at the direction of an employee may
not immediately bear the onus for reducing net pay,
the passage of time tends to dim the memory and
the desire on the part of the worker for greater
tangible take-home pay undergoes a process of
regeneration.53 An assessment of the record con-
vinces me that this concept, and the desire to limit
deductions quantitatively motivated the Company.
Here, unlike Alba-Waldensian, supra, and H. K.
Porter Company, Inc., 153 NLRB 1370, enfd. sub
nom. United Steelworkers of America, AFL-CIO v.
N.L.R.B., 363 F.2d 272 (C.A.D.C.), cert. denied
385 U.S. 851, the Unions adhered tenaciously to
their dues checkoff demand and explored no alter-
native method for collecting dues in order to ab-
solve the Company from the onus attached to the
reduction of take-home pay, or render the em-
ployees' participation in the physical transaction
connected with the payment of dues active rather
than passive. In point of fact, the Company's sug-
gestion that the Unions' loyalty should suffice as
motivation for direct employee payment of dues
was not seized upon by the union negotiators as an
opening to explore the application of section 2, ar-
ticle IV, of the stewards article which was agreed
to by the Company at the meeting of January 14.
This section authorized stewards to collect -dues
' McLane Company, Inc, 166 NLRB 1036, cf Alba-Waldenstan, Inc,
167 NLRB 695, Roanoke Iron & Bridge Works, Inc., 160 NLRB 175,
180-181
" Cf Alba-Waldensian , Inc , supra (TXD)
when approval of the Unions was given. By failing
to explore this possible alternative approach to
dues collection and pursuing the checkoff approach
exclusively the Unions implicitly rejected any com-
promise resolution of the issue . That checkoff was
of great importance to the Unions is underscored
by the fact that they declared it one of the four
remaining issues considered most significant to any
accord with the Company. Indeed, to the end of
negotiations the Unions insisted on a checkoff
provision.
The refusal of an employer to aid a union by ac-
ceding to a checkoff of dues is insufficient, standing
alone, to permit the imputation of an intention to
frustrate agreement on collective-bargaining
terms.54 I find upon the facts of this record that the
Company's refusal to agree to a checkoff provision
did not independently violate Section 8(a)(5) or
constitute evidence of bad faith.ss
d. The arbitration no-strike proposal
In a similar manner, the evidence pertaining to
the arbitration no-strike issue does not warrant the
finding of an independent violation of Section
8(a)(5) of the Act. The basic position of the Com-
pany with respect to the principle of arbitration was
stated at the November 19 meeting, on the occa-
sion of the initial consideration of the Unions'
grievance proposal. Essentially, the Company ob-
jected to the concept of subjecting the parties to- a
binding determination made by a third-party
"stranger." The Unions underscored the impor-
tance of the arbitration issue by objecting at the
November 19 meeting to any "open end"
procedure for resolving grievances; and at the
meeting of January 15 reiterated the singular im-
portance of some form of arbitration as a means of
providing employees with a "fair" means of settling
disputes. The quid pro quo relationship between ar-
bitration and the no-strike clause was stressed by
the Unions at the meeting of February 27, and it
was at this meeting that the Company inferred a
willingness to retreat from its previous position on
arbitration. This apparent shift was explored and
made more explicit at the March 13 meeting when
discussion centered around a form of "mutually-
agreeable arbitration." At the March 13 meeting
the efforts of both parties was directed to the draft-
ing of suitable language. In substance, the proposal
drafted provided for arbitration by mutual agree-
ment of the parties but preserved the ri^ht of either
party to resort to "economic recourse,' including a
strike or lockout, if agreement to arbitrate could
not be achieved. The counterproposal which the
Company submitted at the next meeting made ar-
bitration conditional upon agreement of both
"American Oil Company, 164 NLRB 36, McCulloch Corporation, 132
NLRB 201, 211
" See McLane Company, Inc , supra , McCulloch Corporation, supra;
Cone Mills Corporation, 169 NLRB 449
STANDARD TRUCKING CO.
parties. After step 3 in the grievance procedure the
Union could strike, but subject to a 60-day notice
procedure. Further grievance strikes were
precluded for a period of 120 days. Finally, the
Company's proposal incorporated a no-strike, no-
lockout provision precluding, inter alia , any "con-
certed action of any nature which has its purpose or
effect the interruption of or interference with the
Company's operation." The Unions rejected this
proposal and urged the adoption of the proposal,
jointly drafted at the previous meeting. The Com-
pany did not thereafter modify its position, and the
Unions advanced no new arbitration proposal at the
meetings that followed.
On this issue , as on the issue of dues checkoff,
the General Counsel relies heavily on the Board
decision in Alba-Waldensian, Inc., supra. The
precedential implications of that decision on the
separate issue of overall good faith is considered
below. However, as I read the decision, it lends lit-
tle support to the General Counsel's contention
that the Company's conduct with respect to the
subject of arbitration coupled with a no-strike
provision constituted, in essence, a per se violation
of Section 8(a)(5) of the Act. The concept that
"the agreement to arbitrate grievance disputes is
the quid pro quo for an agreement not to strike," as
stated in Textile Workers Union v. Lincoln Mills,
353 U.S. 448, 455, is, of course, basic. Moreover,
as the Board held in the Alba-Waldensian case, an
employer's insistence upon a no-strike clause when
coupled with a refusal to provide arbitration may,
along with other factors, constitute strong evidence
that the employer did not in fact intend to reach a
collective-bargaining agreement with the union.56
Recognizing these elemental principals, I find, how-
ever, that Alba-Waldensian lends little support to
the General Counsel's position. Rather, the ra-
tionale employed by Trial Examiner Eugene F. Frey
in rejecting the General Counsel's subsidiary argu-
ment in favor of a per se violation arising out of fac-
tual circumstances very similar to those in the in-
stant case, accords a convincing basis for rejecting
that contention here. In Alba-Waldensian, Trial Ex-
aminer Frey, finding no precedent indicating that it
is improper for an employer during bargaining to
oppose arbitration or the right to strike when its
stand is supported with specific and persuasive
reasons and arguments, found no merit in and re-
jected the per se theory advanced the General
Counsel. The Trial Examiner in Alba-Waldensian af-
firmatively found that the objection of the respon-
dent to third-party adjudication was sincerely ad-
vanced and was one which was stated repeatedly
and in detail throughout the negotiations. He found
further that the respondent's proposal requiring the
union to exercise its right to strike promptly at the
end of a 30-day period was no "real deprivation of
the basic right" to strike and was one which did not
599
"deny or emasculate" the union's right to strike.
Rather Trial Examiner Frey observed that the
proposal amounted to a mere postponement of the
exercise of that right following a "cooling-off"
period of a variety not uncommon in the labor-rela-
tions policy of the Nation. In sum, Trial Examiner
Frey found that the conduct of the parties in Alba-
Waldensian was largely parallel in that the respond-
ent was "adamant against all types of arbitration
offered by the Union, but remained flexible to the
end on the matter of use of the strike weapon by
the Union, while the Union remained adamant on
the right to strike without notice, while offering
suggestions on varied types of arbitration."
The record establishes that, while the Company
was adamant throughout the negotiations in its op-
position to the intrusion of a third party "stranger"
into the dispute-resolving process, it remained
willing throughout the negotiations to discuss the
question of arbitration. Further, the Company
manifested a degree of pliability on the subject of
arbitration by its willingness to explore and sub-
sequently to advance a form of a "mutually-agreea-
ble arbitration." As in Alba-Waldensian, by advocat-
ing a 60-day notice provision it may not be said that
the Company was seeking to deprive the Unions of
all right to strike. Here, as in Alba-Waldensian, the
"cooling off" analogy is applicable. But here, un-
like Alba-Waldensian, there was no insistence on the
part of the Company upon a management preroga-
tive to unilaterally change wages, or any term of
employment, during the term of the agreement.
This nexus, between the limitation upon arbitration
and strike rights, on the one hand, and the reten-
tion by the employer, on the other hand, of the
authority over wages during the term of the agree-
ment was a consideration stressed by the Board in
reaching its determination that the position of the
employer in Alba-Waldensian was "[only] indicative
of bad faith." The explicit finding of the Board in
Alba-Waldensian, leaving undisturbed the Trial Ex-
aminer 's refusal to find an independent violation of
Section 8(a)(5) on the arbitration/no-strike issue,
accords no basis for finding a per se violation
herein. I find no such violation.
Further, the absence f this crucial joinder of un-
fettered company control over wages and other
terms of employment on the one hand, and the
limitation upon arbitration and strike rights on the
other, is a consideration militating against the
General Counsel on the issue of overall bad faith.
Additionally, here, unlike Alba-Waldensian, as sub-
sequently found, there are no other factors im-
bedded in the bargaining conduct of the Company
which, considered together with the arbitration/no-
strike issue, lend support to a conclusion, as in
Alba-Waldensian, that the Company did not in fact
intend to reach a collective-bargaining agreement
with the Unions. The arbitration/no-strike issue was
S8 See also Radiator Specialty company, 143 NLRB 350, 370
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an issue upon which each party took strongly held
positions. But the position of the Company was not
per se indefensible, and, as found below, the
manner in which bargaining reached its culmination
forecloses a definitive conclusion as to the extent of
Respondent's adamacy on it, and whether the Com-
pany would have receded to a different form of
"mutually agreeable arbitration" in exchange for
concessions on other outstanding issues . I find, on
the record as a whole, the Company's bargaining
position on this issue was not indicative of bad
faith.
e. Overall bad faith
Finally, the record does not support the General
Counsel's contention that the Respondent ap-
proached its bargaining obligation without requisite
good faith and that, as the negotiations evolved, it
pursued a course of bad-faith argaining violative of
Section 8(a)(5) of the Act. If the prenegotiation
pronouncements of C. W. Hemby to the effect that
there would be no agreement-a statement which
was articulated to a management functionary at the
level of assistant manager-is not susceptible in its
record context of being accorded conclusive weight
in assessing Respondent's bargaining intentions, it is
an evidentiary fact tending to support the General
Counsel's assertion that, Respondent's approach
toward its bargaining obligation was, in a significant
sense, privative. However, while the record
establishes hard bargaining on the part of the Com-
pany, it supports no finding of bad faith.
To be certain, at the February 26 bargaining ses-
sion , the 10th between the parties, the Respondent
engaged in conduct which placed its good faith in
doubt. It was at the February 26 meeting, as found,
when, following a series of meetings during which,
under agreed-to procedures, the Unions' written
proposals had been used as a basis for discussion,
the company negotiators submitted a counter-
proposal document which contained wording and
draft language different from that contained in its
counterpart sections in the Unions' proposals. The
effect of this variance had the potential of render-
ing tentative not only those items upon which
agreement had been reached, but ofcasting a
disquieting pale over any future "agreements" on
other items. If the Company had insisted upon the
reconsideration of agreed-to items based on its own
counterproposals, bad faith would have been
manifested. However the Company's submission of
the counterproposal was accompanied by no such
demand and the company negotiators quickly
agreed to a continuation of negotiations centered
around the Unions' written proposals. The Com-
pany's claim of misunderstanding as to the nature
of the document it was to submit, was one which
the Unions did not adamantly contest. The record
as a whole falls short of revealing either an inten-
tion to disrupt or actual aggravation of the existing
bargaining relationship resulting from the submis-
sion. The document submitted contained proposals
on each bargaining subject before the negotiators
and appears to represent the Company's preferred,
but not final, bargaining position. The counter-
proposal was not a frivolous one and during the
negotiations that followed its submission, the docu-
ment was used as a basis for discussion on some
items and language from the draft was adopted in
achieving agreement with respect to certain sec-
tions. Viewed from the entire context of the bar-
gaining, this incident evokes suspicion but is not
otherwise determinative of the issue of bad faith.
The more cogent inquiry is into the asserted bad-
faith failure of the Company to modify its bargain-
ing position or to advance counteroffers in response
to the "package" proposal offered by the Unions at
the meeting of May 20. At the meeting of April 18,
as requested by the mediator, the Company had
summarized its bargaining position on each open
item and the Unions' negotiators had summarily re-
jected this as an offer to be taken to the member-
ship for acceptance. At the next meeting, on May
20, the Unions offered proposals representing a
modification in their previous bargaining position
on a number of issues. This modification was in the
direction of the Company's demand but the Unions'
concessions were, by no means, complete, and the
proposals were offered as a "package." At the next
meeting the Company rejected the proposal, noting
that it was offered as an indivisible unit. However,
the Company restated its position on all open items
and thereby, in effect, proffered terms which, in-
ferentially, were advanced as an acceptable basis
for reaching contractual accord. The Company
declined the invitation of the Unions to counter
separately on any unresolved issue . Thus, again by
inference, the Company conveyed to the Unions
that a contract would be reached only on the basis
of union acceptance of the Company's stated bar-
gaining position. In substance, the proposal was for
a 1-year contract, embracing all terms upon which
the parties had reached previous bargaining table
agreement. These were to be augmented by terms
granting, (a) an improved health and welfare plan;
(b) holidays identical in number to those presently
observed by the Company; (c) a longer vacation
period for 20-year service employees, but otherwise
the same as the existing vacation policy; (d) a
liberalization in holiday and vacation qualification
and compensation formulas; (e) wage and mileage
rates higher than existing rates but lower than those
demanded by the Unions; (f) a workday and work-
week identical to that observed by the Company;
(g) premium overtime compensation rates and
guarantees at existing levels; and (h) retroactive
wage compensation in the amount of $100, but less
than necessary to constitute full retroactivity to
September 15, 1968. Included in the agreement
was to be a limitation on strike rights but no ab-
solute prohibition. Excluded from the agreement
was to be a provision for binding arbitration, dues
checkoff, successorship liability, or compensation
STANDARD TRUCKING CO.
for terminal delay. Encompassed within the Com-
pany's bargaining demand as of May 27 was the
requirement that the maintenance of standard in-
clusions be satisfactorily defined and that safety
awards and bonuses be phased out. These latter two
issues had a relatively low priority and the bargain-
ing table discussion of them suggests that they were
susceptible of resolution and were not likely to
deter total agreement.
Carefully assessed, the record reveals that the
parties conducted negotiations with full realization
of their likely impact as precedent upon the unor-
ganized segment of the Company's multiterminal
operation. Each party appreciated that, in a ver'
real sense , these negotiations were "showcase
negotiations, and bargaining was hard as a con-
sequence. In this context, the Company confronted
the Unions with terms which the latter did not wish
to adopt. But the terms were not those which "no
self-respecting union could accept." They were the
product of hard bargaining on the part of parties
sensitive to the stakes involved. While the Act
requires the parties to negotiations to approach the
bargaining table with an open mind and purpose to
reach an agreement consistent with the respective
rights of the parties, it imposes no obligation of
retreat;57 and it imposes no obligation on an em-
ployer to smooth the way for new or potential bar-
gaining representatives by yielding on positions
fairly maintained.58
The meeting of May 27 was held in the midst of a
strike. It was the Unions who, prior to the strike,
had broken off meetings and it was the Unions who
on May 27 declared further meetings futile. By so
doing, the standing on their "package" offer to the
Unions, like the Company, inferentially defined
their "final" bargaining position. Whether union
abandonment of its package and resort to further
item by item discussion and trading would have
" See L . L Mature Transport Company v. N L R B, 198 F 2d 735 (C A
5)
sa See N L R B v American National Insurance Co , 343 U S 395
8° See Alba- Waldensurn , Inc v N L R B , 404 F 2d 1370 ( C.A. 4), enfg
167 NLRB 695
601
wrought agreement is purely speculative. But ex-
ploration of this was foreclosed by the Unions' at-
tempt to impose on the Company the burden of
further "movement" or compromise on outstanding
issues. This is a permissible bargaining technique on
the part of the Unions, but it was equally permissi-
ble for the Company to insist upon its terms and to
continue to impose upon the Unions the burden of
compromise. As I view the evidence, this was the
status of matters when negotiations were broken off
on May 27.
The bargaining participation of the Company was
not only "physically constant" 59 but it was sub-
stantively viable.60 Bargaining positions were stated
with candor and supported with reasons of sub-
stance. Concessions were made to the Unions
without effort to defoil61 and wages and other
benefits were offered on virtually all aspects of the
employment relationship.
In summary, I find and conclude that the Respond-
ent failed to sustain the allegations of the com-
plaint- by the requisite preponderance of the
evidence. As a consequence, I find that the strike
which commenced on April 22 and continued
thereafter at all relevant times was an economic
strike and that the reinstatement rights of par-
ticipating strikers were those normally accorded
economic strikers.
CONCLUSIONS OF LAW
The General Counsel has failed to establish by a
preponderance of the evidence that the Company
has failed to bargain in good faith or has otherwise
violated Section 8(a)(5) and (1) of the Act.
RECOMMENDED ORDER
The complaint be dismissed in its entirety.
m See J D Heiskell & Co, Inc, 175 NLRB 485, W L McKnight d/bla
Webster Outdoor Advertising Company, 170 NLRB_ 1395
81 Cf Tex-Tan Welhausen Company, et al, 172 NLRB 851 (TXD),
enfd 419 F 2d 1265 (C A 5)