Tanner Motor Livery, Ltd.

National Labor Relations Board - Board Decisions

Oct 7, 1966

160 N.L.R.B. 1669 (N.L.R.B. 1966)

TANNER MOTOR LIVERY, LTD. 1669
-the purposes of the Act. I shall recommend that Respondent Air Flow be required
to offer Milligan , without prejudice to his seniority and other rights and privileges,
immediate and full reinstatement to his former or substantially equivalent position.
I shall also recommend that Respondents be required , jointly and severally, to
make Milligan whole for any loss of earnings he suffered by reason of the dis-
crimination and other illegal conduct against him, as provided in F. W. Woolworth
Company, 90 NLRB 289, with interest at 6 percent per annum , as provided in
Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Air Flow Sheet Metal, Inc., is engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act, and Respondent Local Union No.
156, Sheet Metal Workers' International Association , AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
2 Respondent Air Flow and Respondent Union have a valid union-security
agreement within the meaning of Section 8 (a)(3) and ( f) of the Act.
3. By transferring employee Billy J. Milligan from one job to another , and then
discharging him, because he was not a member of the Respondent Union, and
had not taken or passed the examination given by the Union that applicants for
membership must take and pass in order to be journeymen members of the Union,
and refusing to reinstate Milligan because he was not a member of the Union
and filed unfair labor practice charges against the Union , Respondent Air Flow
violated Section 8 (a) (1), (3), and (4) of the Act
4. By denying Milligan membership in Respondent Union because he filed unfair
labor practice charges against it, Respondent Union violated Section 8 (b) (1) (A)
of the Act.
5. By causing Respondent Air Flow to transfer and discharge employee Milli-
gan because he was not a member of Respondent Union , and had not taken or
passed the examination given by the Respondent Union to applicants for member-
ship in Respondent Union with journeymen status, Respondent Union violated Sec-
tion 8 (b)(1)(A) and (2) of the Act.
6. By causing Respondent Air Flow to refuse to reinstate Milligan because he
was not a member of the Respondent Union, and filed unfair labor practice charges
with the Board against it , Respondent Union has violated Section 8(b)(1)(A)
and (2 ) of the Act.
7. These unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
'Tanner Motor Livery, Ltd . and Chauffeurs Union , Local No. 640,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America ; Teamsters Automotive Work-
ers, Local No. 495, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America ; Interna-
tional Association of Machinists , AFL-CIO, Lodge No. 1186;
and Office Employees International Union , Local No. 30,
AFL-CIO. Case 31-CA-10. October 7, 1966
DECISION AND ORDER
On February 28, 1966, Trial Examiner James R. Hemingway
issued his Decision in the above -entitled case, finding that the
160 NLRB No. 127.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner.'s Decision. He also found that the Respondent did not
'commit other violations as alleged. Thereafter, the, General Counsel,
Charging Party, and the Respondent filed exceptions to the Trial
Examiner's Decision, with accompanying briefs by the General
Counsel and Respondent.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of-the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner, as modified hereinafter, with
respect to the remedy.
The Trial Examiner found, inter alia, that the Respondent unlaw-
fully refused to sign collective-bargaining agreements embodying
understandings on all terms and conditions of employment reached
with the Unions. While requiring that the Respondent, upon request,
execute these agreements which cover a 1-year period from Septem-
ber 1, 1964, and bargain with the Unions over issues which may have
arisen under such agreements until their expiration on September 1,
1965, the Trial Examiner declined to order the Respondent to rec-
ognize and bargain with the above Unions after September 1, 1965.
The Trial Examiner's failure to recommend such an order was
based on his conclusion that the complaint herein alleged no refusal
to bargain after September 1, 1965.1 The General Counsel contends
that such order should be provided because it is appropriate, under
Board precedent approved by the courts, where, as here, the Respond-
ent is continuing to refuse to bargain. We find merit in this conten-
tion.2 In order fully to remedy the 8(a) (5) violations and to prevent
Respondent from reaping the benefits of its unfair labor practices, we
shall order the Respondent, upon request, not only to sign the agree-
ments reached and give effect to them, as provided in the Trial
Examiner's Decision a but also to bargain, if requested, as to terms
1 We note, however, that the complaint herein had been issued some months before
September 1965 ; and that paragraph 21 thereof alleges a continuing refusal to bargain.
2 Lozano Enterprise8 , 143 NLRB 1347 , enfd 327 F 2d 814 (C A. 9) , Slachhouse Olds-
mobile, Inc ., 140 NLRB 1239
8 We agree with the Trial Examiner that, for reasons set forth in hle Decision, the
parties reached agreements to extend their contracts, separate from the Respondent's
strike settlement offer, and thus the Respondent can be required to execute and give effect
to the extension agreements , without regard to the strike settlement offer 'Moreover,
TANNER MOTOR LIVERY, LTD. 1611
and conditions of employment on and after'September 1,'1965, and,
if agreement is reached, embody such agreement in a signed contract.
[The Board adopted the Trial Examiner'ss Recommended Order
with,the following modifications :
[1. Amend paragraph 2 of the Trial Examiner's Recommended
Order by substituting the following for subparagraphs (a) and (b) :
P (a) Upon request by Chauffeurs Union, Local No. 640, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America; Teamsters Automotive Workers, Local No. 495,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America; 'International Association of Machinists,
AFL-CIO, Lodge No. 1186; or Office Employees International
Union, Local No. 30, AFL-CIO, execute the collective-bargaining
agreement reached with said Union, to be effective for 1 year from
September 1, 1964, and, upon request , bargain with said Union as
to terms and conditions of employment on and after September 1,
1965, and, if an understanding is reached, embody such understand-
ing in a signed agreement."
[" (b) Upon request by any of the above Unions, give retroactive
effect to the terms of its agreement with the Respondent, including
but not limited to bargaining with respect to any issues which may
have arisen , under the terms of said agreement , including the settle-
ment of grievances and disputes entitled to be arbitrated, and make
whole employees for any losses suffered by reason of the Respond-
ent's refusal to execute or give retroactive effect to the agreement, in
the manner set forth in the section of the Trial Examiner's Decision
entitled `The Remedy.' 11] 4
[2. In the notice attached as an Appendix to the Trial Examiner's
Decision, substitute for the fifth indented paragraph thereunder the
following :
[WE WILL upon request by Chauffeurs Union, Local No. 640,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Teamsters Automotive Workers,
Local No, 495, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, International
assuming the validity of the Respondent 's contention that its strike settlement and con-
tract offers were linked together , Respondent ' s imposition of its strike settlement offer to
require that strikers return to wort: as new emloyees, was a clearly unlawful condition.
N.L R`B., v Erie Resistor Corp , 373 U S 221 Indeed , 'had,liespondent signed a , contract
providing, inter alia, that returning strikers were new employees , we could in an appro-
priate proceeding order such a requirement deleted from the contact Laclede Metal
Products Co., 144 NLRB 15; Great Lakes Carbon Corp v. N L R B , 360 F 2d 19 (C A. 4),
enfg, 152 NLRB 986. See also Eiie Resistor, supra, Arlington Asphalt Co, 136 NLRB
742, 748, enfd. 318 F.2d 550 (C.A. 4)
* Backpay shall be computed in accordance with the formula set forth in F W Wool-
worth Company, 90 NLRB 289 , and shall bear interest as prescribed in Isis Plumbing
& Heating Co., 138 NLRB 716.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association of Machinists, AFL-CIO, Lodge No. 1186, or Office
Employees International Union, Local No. 30, AFL-CIO
execute and give retroactive effect to the collective-bargaining
agreement reached by us with each of the above Unions, to be
effective for 1 year from September 1, 1964, to September 1, 1965,
and, upon request, bargain with each of the above Unions as to
terms and conditions of employment on or after September 1,
1965, and if an understanding is reached, embody such under-
standing in a signed agreement.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE PROCEEDINGS
The four unions named in the caption, above, filed a charge against Tanner
Motor Livery, Ltd., herein called the Respondent, and several of its subsidiary
companies on February 4, 1965. They filed a first amended charge on May 5, 1965.
The complaint, alleging violations of Section 8(a)(1), (3), and (5) issued on
June 18, 1965; Respondent's answer was filed on July 1, 1965; and a hearing was
held before Trial Examiner James R. Hemingway, in Los Angeles, between Sep-
tember 21 and 27, 1965.1
The complaint alleges that during the pendency of a strike, the Respondent bar-
gained directly with employees (then on strike) by offering them a contract sub-
stantially different from the last offer made to the Unions before such offer was com-
municated to the Unions; that about January 21, 1965, the Respondent offered
to renew contracts of each Union which had expired before the strike, that on
certain dates thereafter the Unions had accepted the offer, but that the Respondent
on and after January 29, 1965, refused to sign a written agreement embodying
the rates of pay, wages, hours of employment, and other conditions of employment
agreed on between Respondent and the Unions and had refused to give effect to
such an agreement; that on certain dates in February 1965, the Respondent with-
out consulting with the Union representing certain employees, unilaterally changed
the terms and conditions of employment of employees represented by such Unions;
and that on and after February 1, 1965, Respondent had failed to reinstate eco-
nomic strikers who had unconditionally requested to return to their former or sub-
stantially equivalent positions as bus drivers and taxicab drivers and had failed
to reinstate certain economic strikers who had unconditionally requested reinstate-
ment, and who had not been replaced, with their full accrued seniority rights; that
on and after February 1, 1965, Respondent had failed to reinstate certain economic
strikers, who had unconditionally requested reinstatement and who had not been
replaced, to their former positions as busdtiveis and taxicab drivers, but rather
had recalled them as new employees. The Respondent's answer denies the alleged
unfair labor practices.
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation. At all times material hereto, the
Respondent, through wholly owned subsidiaries, has engaged in the providing of
taxicab service, limousine service, and car-rental service to the general public in
various cities in the Los Angeles County, California, area.
During the past 12-month period, which period is representative, Respondent
received gross revenues exceeding $500,000 from the operation of the above
services.
During the past 12-month period, which period is representative, Respondent pro-
vided transportation services for firms located within the State of California, which
firms, during the same period, sold and shipped goods valued in excess of $50,000
directly from California to firms and points located outside the State of California.
'The transcript of the proceedings contained a number of errors . Notice of intent to
order corrections therein having been given the parties , I hereby order said corrections to
be made.
TANNER MOTOR LIVERY, LTD. 1673
During the past 12-month period , which period is representative , Respondent pur-
chased tires, vehicles, and other supplies for use in its operations, described above,
valued in excess of $50 ,000 from suppliers located within the State of California,
who purchased and received these same items directly from firms and points located
outside the State of California.
No issue is raised with respect to the jurisdiction of the Board , and I find that
the Board has jurisdiction and that it will effectuate the policies of the Act to
assert jurisdiction in this case.
U. THE LABOR ORGANIZATIONS INVOLVED
Chauffeurs Union , Local No . 640, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America (herein called Teamsters Local
640); Teamsters Automotive Workers, Local No. 495, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of America (herein called
Teamsters Local 495 ); International Association of Machinists , AFL-CIO, Lodge
No. 1186 (herein called the IAM ); and Office Employees International Union,
Local No. 30, AFL-CIO (herein called Office Employees ), are labor organizations
admitting to membership employees of Respondent and its subsidiary corporations.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The several appropriate units
a. All Respondent's busdrivers based in Los Angeles County, California, exclud-
ing guards, watchmen, and supervisors as defined in the Act, constitute an appro-
priate unit for collective bargaining within the meaning of Section 9(b) of the Act.
b. All Respondent's taxicab drivers based in the cities of Pasadena, Glendale,
and Santa Monica, California, excluding guards, watchmen, and supervisors as
defined in the Act, constitute an appropriate unit for collective bargaining within
the meaning of Section 9(b) of the Act.
c. All Respondent's employees classified as U-drive men, tire changers, lubemen,
washers and polishers, and clean-up men, employed in Los Angeles County, Cali-
fornia, with the exception of those based at Los Angeles International Airport,
excluding guards, watchmen, and supervisors as defined in the Act, constitute an
appropriate unit for collective bargaining within the meaning of Section 9(b) of
the Act.
d. All gas-pump operators , steam-rack operators , wash-rack operators , lubrica-
tion men , polishers, tire-service men, combination men, parking men, front men,
and U-drive men, employed at Los Angeles International Airport, excluding guards,
watchmen, and supervisors as defined in the Act, constitute an appropriate unit for
the purpose of collective bargaining within the meaning of Section 9(b) of the
Act.
e. All Respondent 's mechanics (gas and diesel) machinists , metal men , painters,
body builders, radiator repairmen, trimmers, welders, apprentices and helpers,
excluding guards, watchmen , and supervisors as defined in the Act, constitute an
appropriate unit for the purpose of collective bargaining within the meaning of
Section 9 (b) of the Act.
f. All Respondent's accounting clerks, chief clerks, chief dispatchers, dispatchers,
and switchboard operators, excluding guards, watchmen, and supervisors as defined
in the Act, constitute an appropriate unit for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
2. The majority of the respective unions
For many years prior to September 1, 1964, each of the Unions, parties hereto,
had a collective-bargaining agreement with the Respondent. These contracts had
an expiration date of August 31 or September 1, 1964. Although the Respondent
denies the allegations of majority of the respective Unions, at the hearing the
Respondent stipulated that "the four unions involved in this case represented a
majority of the employees in the respective appropriate bargaining unit at all times
through February 1, 1965." For reasons hereinafter stated, I find that at all times
material hereto Teamsters Local 640 represented all the Respondent's employees
described in paragraphs (a) and (b) of section A, 1, above; Teamsters Local 495
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented all Respondent's employees described in paragraphs (c) and (d)
thereof; the IAM represented all Respondent's employees described in pargaraph (e)
thereof; Office Employees represented all Respondent's employees in the unit
described in paragraph (f) thereof, within the meaning of Section 9(a) of the Act.
3. Bargaining history and the refusal to bargain
Each of the four Unions here involved had had contractual relations with the
Respondent for an extended number of years prior to 1964. The last formal con-
tract of each of the Unions except that of Teamsters Local 495 was entered into
in 1962 and expired about September 1, 1964, except that, by its terms it
would be automatically renewed from year to year thereafter in the absence of
60 days' notice of desire to change or terminate the contract. The last formal con-
tract of Teamsters Local 495 was entered into on September 1, 1958, for a' 3-
year term, automatically being renewed from year to year unless written notice of
desire to change or terminate were to be given by either party. As a result of an
informal agreement, entered into on May 1, 1962, which covered wage increases
and a modification of the vacation clause, this contract continued to remain in
effect until September 1, 1964. Each of the Unions, in the spring of 1964, gave the
requisite notice of desire to make changes in their respective contracts as of Sep-
tember 1, 1964 Thereafter, both before and after the expiration date of the con-
tracts, the Respondent and the several Unions met in separate negotiating sessions
until October 9, 1964. The Respondent's bargaining position expressed throughout
that time was that it could not afford to increase any economic benefits. No agree-
ment having been reached by October 19, 1964, all four Unions struck. With few
exceptions, the employees all supported the strike. Picket lines were established
and were continued until late January 1965.
About November 14, 1964, the Respondent retained Pavone Business Serv-
ices, a business consultant corporation headed by Tom Pavone, to represent the
Respondent "in all labor matters." Pavone notified each of the Unions of this
appointment by letter bearing that date.
On November 16, 1964, the Respondent wrote to each, of the Unions stating that,
since Respondent and the Union had reached an impasse , Respondent was serving
notice, though admittedly not timely , to cancel the existing contracts under Sec-
tion 8 (d) of the Act.
Thereafter, one meeting was held between the Respondent (represented by
Hughes and Pavone), and Teamsters Local 495, represented by Frank Hatfield, its
secretary-treasurer, on November 18, 1964. Respondent offered a minor concession,
but no agreement resulted . Except for this meeting, none of the Unions would con-
sent to meet with Respondent unless the others sat in as observers. On Decem-
ber 2, 1964, the Teamsters locals each wrote a letter to Pavone offering to meet at
a neutral place. No meeting ensued until early January 1965, when the Unions
and Respondent were all present at the offices of the Federal Mediation and Con-
ciliation Service, but the parties were in separate rooms and did not meet for dis-
cussions. The Respondent repeated, through the mediator, its offer of a renewal of
the old contracts until September 1, 1965. The Unions did not accept . Under date
of January 19, 1965, the Respondent wrote a composite letter, addressed to the
four Unions as follows:
On the advice of our attorney, we informed you of our desire to terminate
our Labor Contract with your organization, under Section 8D of the Taft-
Hartley Act. The effective date of termination is almost here 2
Rather than devote countless hours to negotiating new contracts after the
termination date, we are again repeating our offer that all striking employees
return to work under the conditions of the existing contract. The existing con-
tract would be renewed with no changes, as of September 1, 1964 and will
expire September 1, 1965.
It must be understood and agreed to that the return to work of the striking
employees, cannot be en masse, but their recall will have to depend on the
return of our business to normal, with corresponding labor requirements. The
return to work will not effect [sic]' the status of employees presently working.3
21t presumably expired on or about January 17, 1965, but I do not pass on the necessity
for such notice. The Unions made no claim that their contracts remained in effect after
September 1, 1964.
3 pavone did not take part in the writing or posting of this letter and was not present
at the ensuing meeting between Hughes and representatives of the Unions.
TANNER MOTOR LIVERY, LTD. 1675
The last sentence had reference to certain replacements hired during the strike. The
Respondent caused this letter to be posted in the windows of the Respondent's
several places of business in Los Angeles and suburbs, facing the public sidewalk,
where it was visible to strikers,, the pickets,, and the public. Although the letter
apparently was mailed about the date it bears, the posting of the letter in the
windows was not delayed until after the Unions had had an opportunity to receive
or respond to it, and the complaint herein alleges this to constitute bargaining
directly with employees in violation of the Act.
The representatives of the several Unions learned of the posting of the foregoing
letter on the morning of January 20, before they had received their copies from
strikers who had seen it. On the afternoon of January 20, after he had received
his copy of the letter, Roland Wilson, secretary-treasurer and business agent of
Teamsters Local 640, telephoned John Hughes, Respondent's director of operations,
and asked Hughes if he would come to his union offices the next day in order to
discuss the subject of the Respondent's letter. Hughes agreed, and on January 21
he went to the offices of Teamsters Local 640 and found present representatives
of all the Unions as well as Charles Hackler, attorney for the Teamsters' two
locals. At the outset, Hackler asked Hughes why the letter had been posted before
the representatives of the Unions had been given a chance to receive it. Hughes
said that he had been informed that the Unions were not letting the employees
know what the Respondent's position was and what offers the Respondent had
made. After Hackler had criticized the. Respondent's letter as a masterpiece of
obscurity and ambiguity, he asked Hughes on what terms the strikers would return
pursuant to the Respondent's offer and whether or not the employees hired during
the strike would be retained by the Respondent and whether or not they would be
given superseniority. Hughes said that the Respondent was willing to renew the
old contracts for one year from September 1, 1964, that the Company would retain
all of the employees hired during the strike, and that the strikers would return as
new employees, except that, when enough taximen had returned, there would be
a shake-up and the taximen could then exercise seniority in selecting their shift.
There was some conflict of testimony about what Hughes said concerning the order
in which employees would be recalled. Union representatives testified that he said
the employees would be recalled in the order of seniority. Hughes, however, testi-
fied that he told the Unions that the men would be called as the Respondent
needed them, that they could not be expected to be called back all at once,
and that since they had not gone out in seniority order, he would not call them
back that way.4 From the Respondent's letter, in which it offered that "all striking
employees return to work under the conditions of the existing contract," the
Unions might have assumed that the seniority provisions of the contract would
apply to their recall, but I find that, on January 21, Hughes modified this offer in
his explanation thereof. One of the union representatives remarked, "Well I guess
the ones that don't get called back can have their unemployment insurance."
Hughes replied that he would make every effort to keep any of them from getting
unemployment insurance. Despite the language of Respondent's letter of January 19,
offering to take back all striking employees, Hughes also said that there would
be some of the striking employees who would not be called back under any cir-
cumstances. Hughes divided the employees who would not be recalled into two
groups-first, those who had been charged with violence and vandalism during the
strike (against whom criminal proceedings were pending), and second, those who
had been guilty of misconduct on the picket line. With respect to the first group,
Hackler asked if Hughes did not mean that the Respondent would not take back
those who had been arrested and convicted. Hughes replied that he was not inter-
ested in a conviction, that he had affidavits concerning the actions of a number of
the employees, and that, whether convicted or not, the employees charged would
not be taken back. With respect to the second group of employees, Hughes agreed
that these employees would be subject to the grievance and arbitration sections of
the several contracts. When asked who would handle the grievance proceedings,
Hughes answered that he would, himself. He also indicated that it was possible
that in some instances the cases might be settled at the grievance stage and that they
would not have to go to formal arbitration. The Unions inquired as to whether or
not any of their people were in the first group who would not be taken back in any
event. With respect to the Office Employees, Hughes said that he did not think that
* The complaint does not allege that refusal to reemploy in order of seniority was, in
itself , an unfair labor practice
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of the members of that Union were on the list but that he would have to check
and let them know. With respect to the members of Teamsters Local 495, Hughes
said that there were some in that Union who were included in the first group, but
he did not know how many or who they were . He also indicated that others in the
first group were employees represented by Teamsters Local 460. Hughes agreed
that he would get the information as to the names of the employees who would be
excluded and would notify Roland Wilson, representative of Teamsters Local 460,
as to this and as to the number of replacements with which each Union was con-
cerned and said that Wilson could pass on this information to the other Unions
concerned. During the period of the strike, Teamsters Local 495 had been offered
uniform conditions and wage scales for employees represented by that Union at
both the airport and at the downtown headquarters of the Respondent, and Ted
Lange, president and business agent of Teamsters Local 495, asked Hughes if the
agreement to have uniform conditions at both places still stood. Hughes replied
that it did.
During the strike, the Respondent had filed suit against certain individual mem-
bers of the Teamsters locals and also against these locals, themselves, for substan-
tial damages caused during the strike, and Hughes was asked, at this meeting,
whether or not the Respondent would withdraw these charges in the event that the
strike was settled. Hughes replied that he was not in a position to make a definite
statement about that, that he would have to speak with his superiors about that,
but that he would not withdraw any charges if his opinion carried any weight.
Hughes testified that, at the close of this meeting, as the other representatives
were walking out, Wilson commented to him that no local would be "damn fool
enough" to accept any settlement under these conditions. Hughes quoted himself
as saying, "In a case like that, Rollie, forget the whole thing," and that he then
left. Wilson denied that he had made this remark, and others testified that they had
not heard it said either. Wilson apparently was given to blunt speech and it is
not incredible that he might have made such a statement, or it is possible that
Hughes confused this meeting with a later or an earlier one at which Wilson had
made some such remark. If Wilson did make any such remark at the meeting of
January 21, 1965, however, I find that it did not constitute, and was not taken by
Hughes to constitute, a rejection by Teamsters Local 640, or by any other Union,
of the Respondent's offer. That Hughes did not take the statement, if made, liter-
ally as meaning that the offer of the Respondent would not be considered by the
Unions is evident from the fact that, as soon as he returned to his office, Hughes
proceeded to call his supervisors and to get the information concerning the num-
ber of replacements hired during the strike and the names of employees who
would not be rehired under any circumstances, and on the following day, January 22,
he telephoned Wilson and gave him this information. All the names on the list so
furnished were of employees represented only by the two Teamsters locals.
The four Unions thereafter called a joint meeting of their members for Janu-
ary 24, 1965. At this meeting, each of the representatives of the several Unions
spoke to members of his Union and related the Respondent's offer and the infor-
mation obtained from Hughes on January 21 and 22. The Unions then took sep-
arate votes on the offer. Teamsters Local 640 voted to reject the offer. Teamsters
Local 495 voted to accept the offer, as did the IAM. The Office Employees voted
to reject the offer, but, at the end of the meeting, took a separate vote and gave
their representative, Gwen Newton, authority to use her own judgment .5 Bernard
Hubert, representative of the JAM, after the vote, told his members that the strike
was over and that they should report for work the next day.
Immediately following the meetings of January 24, the representatives of each of
the Unions met and decided that a division between them was untenable. Wilson
agreed to hold another vote of his Union, and Newton, for the Office Workers,
as authorized, decided to accept the Respondent's offer to call off the strike. She
notified her members early the following week.
After Hughes had telephoned Wilson on January 22 , 1965, to give him names
of strikers who would not be reemployed and to give him the number of replace-
ments who had been hired during the strike, Wilson had a conversation with
5 These findings are based on the uncontested testimony of the union representatives.
No request was made to see the official minutes of the meeting, if any, and no question
was asked concerning the number of employees present and voting. However, the Respond-
ent's brief raises no question concerning the accuracy of the testimony or the validity of
the vote. In any event, it is questionable that the Respondent was in a position to chal-
lenge it. See M & M Oldsmobile, Inc., 156 NLRB 903.
TANNER MOTOR LIVERY, LTD. 1677
Hackler, attorney for Teamsters Local 640 , with reference to an outstanding order
of the California Public Utilities Commission (herein called PUC), directing the
Respondent to hold in trust certain moneys representing the amount of the Federal
transportation tax which the Respondent had continued to charge as part of its
fares after the tax had been repealed . Hackler told Wilson that his investigation
had shown that the Respondent had not complied with the PUC order and that
Teamsters Local 640 might file a petition with the PUC calling the PUC's attention
to the violation and asking that the Respondent's bus charter be revoked. Wilson
decided to, and did, sign such a petition on that day , January 22 , and the petition
was filed with the PUC on Monday, January 25, 1965.6 The PUC on February 3,
1965 , issued an order to satisfy or answer, and the Respondent was served with
this order on February 5, 1965?
On January 25, 1965, the IAM pickets were withdrawn, and the employees repre-
sented by that Union began to return and apply for their jobs. Early that morning,
Hubert, representative of the LAM, received a telephone call from a former striker
who complained that the Respondent had taken back two men junior in seniority
to some of the others . Hubert thereupon telephoned Hughes , told Hughes that the
IAM had voted to accept the Respondent 's offer and were returning to work that
morning, and said that he had received a telephone call notifying him that the
men were not being recalled in the order of seniority . Hughes told Hubert that
he did not know anything about the matter and suggested that Hubert speak
with Shop Superintendent Martin Frailey. Hubert telephoned Frailey, who explained
to Hubert that he had a bus that needed metal work and that a junior man taken
back was one who had, before the strike, done all the metal work. Another junior
man reemployed did electrical work. Frailey agreed to take the others back as
needed in the order of seniority . Most of the LAM men were ultimately reemployed.8
Newton, representative of the Office Workers, testified that on Monday, Janu-
ary 25, she attempted to notify members of the Office Workers to return to work
but that she was unable to reach some of them by telephone . But by January 26,
all pickets of the Office Workers had been removed. However, Newton did not,
before February 3, 1965, either orally or in writing, notify the Respondent that
Office Workers had voted to accept the Respondent 's offer to renew the old con-
tract for a year from its expiration date . She testified that Lange of Teamsters
Local 495 had agreed to notify the Respondent on her behalf. Any notification that
Lange made on behalf of Office Workers or any other Unions, however, was not
made until a later date.
Lange testified that, on January 25, 1965, he had telephoned Hughes three times
but had not reached him; so he left a message with Hughes' secretary to have
Hughes call him . At one point, Lange testified that he had told Hughes ' secretary
that Teamsters Local 495 had voted to accept Respondent 's offer and had voted
to return to work . Hughes testified that he had not received any message from
Lange on January 25 and that there was no record that Lange had called on that
date. Although Teamsters Local 495 was testified to have voted on January 24 to
accept the Respondent 's offer and return to work, its pickets were not all removed
until January 29 or 30, according to Lange. Because of other evidence in the
record, hereinafter set forth, it is my conclusion that Lange was approximately
1 week off in his dates and that his first attempt to speak with Hughes was made
on January 29. It might be inferred that, although Teamsters 495 had voted to
accept Respondent 's offer, it was going to delay notification thereof until Team-
sters Local 640 had held its second meeting.
Teamsters Local 640 held a second meeting of its members on January 29, 1965,
and at this time it voted to accept the Respondent 's offer and return to work. On
the evening of that day , Wilson sent out a telegram to Respondent at Respondent's
"Between January 22 and 26, 1965, Respondent ran ads in local newspapers for bus-
drivers. Respondent argues that this was evidence that Respondent understood that its
offer had been rejected. However, Hughes testified that no one was hired as a result of the
ads and that their purpose was merely to get a backlog of names apparently in case an
insufficient number of his drivers returned after the strike. The placing of ads, then, looks
more like evidence of an expectation of an end of the strike and a resumption of operations
than it does that the Respondent expected a prolonging of the strike.
7 Respondent's answer, filed with the PUC about February 17, 1965, acknowledged
that service of the PUC order to answer was received on February 5, 1965.
"One or two had been replaced and there was no work for a few others. None had been
involved in any misconduct during the strike.
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
main office address, but with the notation that it was to the attention of Thomas
Pavone. This, telegram stated that Teamsters Local 640 accepted Respondent's
offer made by a letter dated January 19, 1965, that the strike was over, and that
"our employees are ready to return to work pursuant to your last offer on Janu-
ary 19th, 1965." Although Hughes had gone home for the night, before this tele-
gram was delivered, a dispatcher for the Respondent telephoned Hughes at his
home and read to him the contents of the telegram. Hughes testified that he com-
mented to the dispatcher, "To hell with it," because "there was no offer." Hughes
testified in connection with the testimony of his conversation with the dispatcher;
that he knew, at that time, of the filing by Local 640 of the PUC complaint and
that he considered his offer to have been revoked thereby. There is no contention
that the Respondent at any time expressly withdrew its offer. On Saturday, Janu-
ary 30, 1965, Hughes noticed that pickets who were still present when he arrived
at work were removed soon thereafter. When the dispatcher brought to Hughes the
telegram which had come the night before, Hughes notified all the dispatchers that,
as drivers came in to apply for work, the dispatchers should take the names and
the time that the drivers came in, give them application blanks to fill out and sign,
and tell the applicants that they would come in as new employees.
On Monday, February 1, Hughes told his superior, Vice President Knight, about
the telegram, and they discussed what to do about the matter. Their decision was
to consult with legal counsel and not to act too hastily. On the same day or the
next day (February 2), Hughes communicated with Raymond Olson, of Pavone's
firm, who was acting in Pavone's absence, and said that the Respondent had heard
rumors over the previous weeks that the strike was about to fold up, that this was
evidenced by the fact that some of the men had already returned to work,9 and
so there was no rush on the Respondent's part to make any decision, and that the
Respondent was going to have to have time to evaluate what steps it was going
to take next. Hughes told Olson that it would be the responsibility of Pavone to
stall things along until the Respondent had reached a conclusion.
On Tuesday afternoon, February 2, 1965, Wilson sent another telegram addressed
to the Respondent, to the attention of Hughes and Pavone, in which he stated
that Respondent had refused to inform returning strikers as to whether or not
they continued as employees, failed to advise the attorney for Teamsters Local
640 as to whether or not the Respondent was willing to go through with the
settlement agreement by reinstatement of strikers to available jobs and by putting
into effect the collective-bargaining agreement, and he requested notice in writing
without further delay as to Respondent's intention. Olson, for Pavone Business
Services, wrote a letter to Wilson under date of February 1, 1965, acknowl-
edging receipt of the telegram of January 29, 1965, stating that because of prior
commitments by Respondent's management and by Pavone. they would be unable
to meet with Local 640 before February 15, 1965, and requested a reply by tele-
phone or mail as to the Union's acceptance of that date or an alternate date. This
letter was not received by Wilson until February 3, 1965. Wilson replied on
February 3, 1965, stating, among other things, that the "unions will meet with you
on February 15, 1965, and suggest that the meeting' be held at 10 a.m. in Con-
ciliator Goodwin's office," but that the Unions wished to have an earlier-meeting
for the purpose of being informed as to what steps were being taken by the
Respondent to carry out the settlement agreement. He also stated that if no
answer were forthcoming by the close of business of February 3, the Union would
file unfair labor practices and seek an order from the Board requiring Tanner to
give effect to the strike-settlement agreement. Apparently crossing Wilson's last letter
in the mail was one from Olson dated February 3, 1965, in which he said that the
meeting could take place at the Federal Mediation and Conciliation Service in Los
Angeles, and that in the meantime the Respondent was accepting applications from
all striking employees and that the Respondent would reemploy "any former
employee as and when they can be absorbed."
On February 3, 1965, Newton sent a telegram to Hughes and Pavone at the
Respondent's office address stating: "Office employees Local Number 30 unequivo-
cally accepts your offer made in your letter dated January 19, 1965. The strike
is terminated and our members are ready to return to work pursuant to your offer
s The evidence indicated that, of 22 1AM strikers, 4 had abandoned the strike before
January 24, 1965, and 2 replacements had been hired Of eight office employees, all of
whom struck, two had abandoned the strike and were back at work by January 21, 1965
There is no evidence concerning members of the Teamsters who might have abandoned the
strike but, during the strike, the Respondent hired a number of new cab drivers (about 44).
TANNER MOTOR LIVERY, LTD. 1679
on January 19, 1965." Newton testified that the reason for this telegram, a week
or more after Office Employees had voted to give her authority to accept the offer,
was that one of the Office Employees ' members was unable to get information as
to whether or not he had been replaced . Office Employees received no reply to
this telegram.
Lange ( of Teamsters Local 495) testified that, on January 29 , 1965, after Team-
sters Local 640 had voted to accept the offer, he had telephoned Pavone and told
him that "the contracts had been accepted " by all four locals and that he was
authorized by all "to effect the settlement , a letter of understanding ." He testified
that Pavone apologized for having been out of town and told Lange that he would
have "to contact Hughes to find out what had been agreed to." Lange testified
that Pavone "was supposed to call [him] back late that afternoon " and that, when
he received no call from Pavone , he telephoned Hughes, and asked if Hughes had
heard that Pavone was supposed to call. He testified that Hughes replied that he
had not heard but that the Respondent did not consider that there was an agree-
ment because Knight (Hughes' superior ) "had been taken out of the picture due
to the filing of Charges by Wilson with the PUC ..." 10 For a number of reasons,
I find that the conversations which Lange testified occurred on' January 29 actually
took place a week later , on February 5 These reasons are as follows (1) The tele-
gram of acceptance sent by Teamsters Local 640 on January 29, 1965 , indicated
that it had been sent at 6:35 p.m . It is a reasonable conclusion that this telegram
was sent soon after the meeting reteried to therein (2) Hughes testified that he had
left his office to go home between 4 : 30 and 4:45 p .m. on January 29. He did not
recall having had a telephone call from Lange that day ( 3) Pavone was out of town
during business hours from about January 27 to February 3, 1965. • ( 4) Although
Hughes, on direct examination for the Respondent , testified that he knew of the
filing of the PUC petition by Wilson at the time he learned of receipt of Wilson's
telegram of January 29 , he testified on cross-examination that he had learned of
the PUC petition when the Respondent was served with the PUC order to answer
the petition , and the Respondent 's answer to that petition shows that such service
of the PUC order was made on February 5, 1965.11 Any reference by Hughes to
Lange regarding the filing of that petition , it follows, could not have been made
before February 5. I conclude and find , therefore , that Lange called Pavone and
Hughes on February 5, 1965, instead of on January 29, 1965, and had the con-
versations he testified to. I also find that Lange first attempted to telephone Hughes
concerning the action of Teamsters Local 495 in accepting Respondent 's offer on
January 29 , rather than on January 25, 1965, most likely after Hughes had left for
the day, and that it was on that date that Lange left a'message for Hughes with
the latter 's secretary . Hughes did not return Lange's call of January 29, and this
failure was consistent with Respondent 's decision , reached on January 30 , to stall
until Respondent could evaluate its position. '
Pursuant to the correspondence between Pavone and Wilson , the Respondent's
representatives and its attorney , Kirshman , met with the Unions' representatives,
including Teamsters ' attorney , Hackler , at the office of the Federal Mediation and
Conciliation Service on February 15, 1965 . At Hackler's request for a statement 'of
the Respondent's position , Kirshman stated: " . . . management's position is that
Mr. Hughes' offer of January 21st , was not accepted and picketing continued
through January 29 or 30. In fact there was picketing subsequent to the employer's
receipt of the union's telegram informing us that the strike was over. So, in sub-
stance, we feel that there has been a complete rejection of the offer of January 21st.
The position of the Company now is that we are ready , willing and able to begin
10 Knight continued to be responsible for labor relations, Hughes testified, until Sep-
temberl, 1965
"The following questions and answers were put to Hughes and given by him on
cross-examination
Q Now, Mr. Hughes, when did, you first learn of the filing of the petition-the
PUC proceeding by Local 640. What date'
A• I don't recall the date that we received the service
Q. Would it be the date that you . . or your company was served with a copy of
the complaint'
A I think that is when I would have first learned of it
After being shown the acknowledgement of receipt of service in the answer as being on
February 5, 1965, Hughes testified, "I would say that this indicates that it came to our
attention on February 5th." ,
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations fresh without any prior commitments and rejecting and renouncing all
prior proposals." To this statement Hackler said that two problems were facing
the Unions on January 19 and 21, 1965-whether there would be a contract and on
what terms the strike was to be settled. He said he understood what the Respond-
ent's position was regarding a contract but wished also to know the Respondent's
position regarding conditions under which the strikers were returning, and he
remarked that cabdrivers had gone on strike while they were getting a 50 percent
commission and that on rehire they were given a 45 percent commission. After
first saying that the strike settlement was in "limbo," Kirshman said that the
Respondent would not reemploy in order of seniority but, once a man was rehired,
he would be restored to his full seniority , but the strikers would go to whatever
positions management thought they were best qualified to fill. He again stated that
there was a rejection of Respondent's offer and that this was evidenced by picket-
ing continuing for "approximately seven days thereafter ," during which time there
was no notification from the Unions of acceptance until January 29. With respect
to the cabdrivers' rate of commission, Kirshman said that the rate for newly
hired drivers was 45 percent but that the strikers would return at 50 percent.
Kirshman said that the fact that some employees had been told they were return-
ing as new employees resulted from confusion and that they would return with
seniority at the 50 percent rate.
After the parties had stated their positions , Kirshman said that the Respondent
wished to continue to try to work out a contract, but that management had received
some indication of disenchantment with "various" locals (not specifying which ones
but presumably claiming that this applied to all of them), and that, because of
that , Respondent felt that , before executing any contract, each local should produce
evidence , in terms of new authorization cards, to show that, in fact, they did repre-
sent a majority of the employees ( including replacements) and, as part of this,
the Respondent asked the Unions to determine, as to strikers who had not yet
returned , whether or not such persons had obtained other permanent employment.
Hackler asked whether or not these conditions were meant to apply also to the
IAM, for whom he understood there were no replacements and no men disqualified
from rehire by misconduct . Kirshman replied that there had been some replace-
ments and that the conditions applied to the IAM likewise.
Toward the end of the February 15 meeting , Kirshman said that there were
incompetency citations out for 90 individuals ,12 that Teamsters Local 640 had
filed a petition with the PUC , and that on February 4 several unfair labor practice
charges had been filed (apparently referring to the charges filed herein on Febru-
ary 4 and 5 , 1965 ), and that, upon the signing of a mutually acceptable collective-
bargaining agreement , Respondent would withdraw the incompetency citations if the
Unions withdrew any actions they had taken. At this point, Kirshman said that
the filing of the petition with the PUC was further indication to Respondent that
there had been no agreement reached on January 21.
Following this , discussion of settlement of the strike issue, Hughes and Kirshman
made a contract proposal which excluded a union shop and made certain other
changes providing less than under the old contracts . Since time was getting short,
Kirshman. agreed to draft written proposals and send them to the Unions for
acceptance subject to proof of majority. He later did so, but the Unions took no
action thereon.13
4. Conclusions regarding refusal to bargain
No contention is made that Respondent 's offer of January 19, 1965, was not
made with intent to induce the Unions to accept . A question is raised concerning
the Respondent 's good faith in posting copies of the letter for strikers to see before
the Unions themselves had received the originals . No proof was offered of the
exact time of mailing of the letter to the Unions or the manner in which delivery
12 The list supplied to Wilson by Hughes on January 22 contained 13 names of men
who would not be taken back-5 represented by Teamsters Local 495 and the rest taxicab
drivers represented by Teamsters Local 640. Presumably any others were cases which
would have been settled through the grievance and arbitration proceedings.
Is On March 25, 1965, Pavone , for the Respondent, filed charges of refusal to bargain
against the four unions . After Investigation , the Regional Director, on May 11, 1965,
dismissed the charges . Respondent appealed the Regional Director' s Decision, and on
June 30 , 1965, the Regional Director 's Decision was affirmed . On the latter date, Respond-
ent filed several RM petitions ; these were dismissed on July 15. An appeal by Respondent
from this dismissal was later rejected.
TANNER MOTOR LIVERY, LTD. 1681
is normally made to the Unions ( i.e., by post office box or by carrier delivery).
For all that appears, the letter could have been mailed to the Unions on Janu-
ary 19 , and could have been posted by Respondent on January 20, at approximately
the time they might have been expected by Respondent to be delivered to the
Unions. The delay in delivery until the afternoon of January 20 conceivably could
have resulted from a delay in the mail. Although a greater degree of good faith
might have been shown by Respondent if it had waited until it had given the
Unions ample opportunity to respond to the offer before posting the letter for the
strikers to see, I do not regard the evidence here as sufficient to prove that Respond-
ent violated the Act by the posting of copies of the letter on January 20, 1965, in
places where strikers could see them.
Hughes' conduct in meeting with representatives of the Unions on January 21,
1965, and in furnishing requested information on January 22, clearly indicates that
the offer of January 19, 1965, was open for the Unions to acceptance . Because
there was no time limit fixed by the offer for acceptance or rejection , the offer was
by elementary principles of law, open for a reasonable length of time. No conten-
tion is made by the Respondent that it withdrew the offer at any time before notice
of acceptance by the Unions . The contention of the Respondent is that the offer
was rejected by the Unions as a result of words or actions of Wilson or by continu-
ing to picket after January 24, 1965 , and after acceptance . In order to make the
contention regarding the effect of the filing of the petition by Teamsters Local 640
applicable to the other Unions, the Respondent attempted to show that Wilson had
been held out by them as an authorized speaker for all four Unions . Although
Wilson at times undertook to receive and disseminate information to the other
Unions and to take the initiative in arranging meetings , this was because of the
fact that Wilson was in his office most of the time, while representatives of the
other Unions were out of their offices a great deal of the time , and they relied on
Wilson for such information . There is no evidence that Wilson had been authorized
to speak for the other Unions in connection with the acceptance or rejection of
contractual offers.14
At the February 15 meeting , Kirshman made some allusions to Wilson's pre-
sumed remarks to Hughes at the January 21 meeting. I have already found, how-
ever, that even if Wilson did, at the conclusion of the January 21 meeting, privately
tell Hughes that he thought any union would be foolish to accept such an offer,
this was not interpreted by Hughes as a rejection of the offer, because, on Hughes'
return to his office , he set about gathering information necessary to be transmitted
to Wilson for dissemination to the other Unions, knowing that they desired to
present the offer to their memberships for consideration of the offer . In all past
dealings with the Unions , the Respondent had not effected any contracts before the
offer had been submitted to the membership of the Union for a vote . This, too,
was known to Hughes . There is no reason to believe that the offer made by letter
on January 19 was any exception to the practice of submitting offers to the
membership.
The Respondent's argument that its offer was rejected as a result of the filing by
Teamsters Local 640 of a petition with the PUC , calling that body's atttention to a
violation by the Respondent in the failure to conform to a prior order of the PUC
and claiming that this should operate to induce a revocation of the Respondent's
bus charter , is entitled to little weight. As explained by Wilson , the filing of this
petition was intended to be a tactical maneuver , making it possible to bargain
concerning the dismissal by the Respondent of its suit against the Union and various
of its members . However, even if, contrary to my finding , this act could have been
construed as giving an indication of intent to reject the Respondent 's offer, the
evidence establishes the fact that the Respondent did not even know of this act or
supposed intention until February 5, 1965 , almost a week after the actual acceptance
by the Unions . A rejection of an offer is not effective as such until communicated
to the offerer.15 In this case, acceptance by Teamsters Local 640 was communicated
14 It will be remembered that Teamsters Local 495 met separately with Respondent on
November 18, 1964. Although all Unions were present at the only meeting between then
and January 21, 1965, that does not warrant an inference that Wilson was authorized
to negotiate for any union other than his own
15 Restatement of the Law of Contracts, Section 39, expresses the generally accepted
rule that even if a rejection of an offer is sent, an acceptance later dispatched will be
effective to create a contract if the acceptance is received by the offeror before he receives
the rejection.
257-551-67-vol. 160-107
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Respondent before the latter had any reasons to believe that there had been,
a' rejection. I find, therefore, that the filing of the PUC petition by Wilson on.
January 25, 1965, even if it could be construed to be a rejection, did not effect a
rejection of the Respondent's offer by Teamsters Local 640, and certainly not by
any of the other Unions, who were not even aware of the filing thereof. It will be-
noticed that'the Respondent expressed no contention that its offer had been rejected
at the time when it received notice of acceptance. It was not until the meeting of'
February 15, 1965, that Respondent voiced the contention. In the meantime, the
Respondent remained noncommittal with regard to the status of an agreement at
a time when it should have repudiated the agreement at once if it had any justifica-
tion for doing so.
No contention is made that the telegraphic acceptance by Teamsters Local 640,
on January 29, 1965, or by Office Employees on February 3, 1965, constituted a
counteroffer because the telegrams of acceptance failed to mention the oral modifi-
cations to the Respondent's letter of January 19, as expressed by Hughes on Janu-
ary 21. Had the Respondent believed that these acceptances were imperfect, it
would be expected to have made a prompt reply to the telegrams calling attention
to that fact. It never did. Actually, the letter of January 19, dealt with two sub-
jects-an offer to renew each contract on the same terms and conditions as previ-
ously existed and an offer to settle the strike by taking all strikers back. Such
modifications as were expressed by Hughes at the meeting of January 21 were
modifications of the offer to take all strikers back-an offer of terms on which to,
settle the strike rather than modifications of the offer to renew the old contract.is
The telegraphic acceptances by Teamsters Local 640 and Office Employees effec-
tively accepted the offer to renew the former contracts, regardless of the differences
in terms of reinstatement of strikers expressed by Hughes on January 21, 1965. The
Respondent did not contend that the oral notification of acceptance given to it by
the IAM or by Teamsters Local 495 failed to be effective for any reason other than
the discredited one of rejection by the filing of the PUC petition by Teamsters
Local 640 or by continued picketing.
The contention that the Respondent's offer of January 19 was rejected by the
continuation of the picket line is a specious one. The Unions were under no obliga-
tion to remove the picket lines while they were still considering the Respondent's
offer, so the picket lines could hardly be deemed to be evidence of a rejection
during that time. Furthermore, the Respondent, in advancing this contention, failed
to differentiate the case of the IAM, who removed its pickets on January 25, 1965,
or of Office Employees, who removed all pickets by January 26; so even if the
argument could have merit as to the two Teamsters locals (contrary to my opin-
ion), it could clearly have no merit as to the IAM or Office Employees. Both
because of the tardiness of advancing this objection and the irrationality of it,
therefore, I reject it. Continuation of picketing after the telegraphic acceptance of
Teamsters Local 640 was limited to a short period on the morning of January 30
before agents of Local 640 were able to reach the pickets. This is not to be con-
strued as evidencing a rejection.
Teamsters Local 640, at its meeting on January 24, 1965, voted, as previously
stated, to reject the Respondent's offer of January 19, 1965. An influencing factor
was Hughes' change in the terms of strike settlement offered in the January 19
letter by his announced refusal on January 21 to take back certain accused strikers
regardless of conviction or acquittal. Since the vote was not taken separately on
the strike settlement and the contract offer, the result of the vote, if communicated
to the Respondent, might have effectively rejected Respondent's offer. But the result
of the vote was not communicated to Respondent by Teamsters Local 640, which,
immediately after the vote, agreed with other union representatives, to hold another
meeting to reconsider the action. Hughes conceded that he had informants among
the union members and he may have received rumors to the effect that the units
represented by Teamsters Local 640 had voted against the offer. But Hughes, him-
self, testified that he did not know how reliable this information was. He apparently
did not rely on it and it certainly did not cause him to announce a revocation of
the offer. Official notice of acceptance, therefore, was given without any official
notice of rejection. Accordingly, I find that Respondent's offer was still extant at
the time of acceptance by each of the Unions.
16 Hughes, on January 21, 1965, agreed with Lange that a single agreement would apply
to employees in the two units represented by Teamsters Local 495. This apparently was
intended as an alternative offer rather than a substituted one.
TANNER MOTOR LIVERY, LTD. 1683
The Respondent's reaction to the acceptance of its offer by the Unions is strong
indication of the fact that the Respondent was expecting the Unions not to accept
and was expecting to induce the employees individually to return to work and
thereby to break the strike and undermine the Unions. As already pointed out, at
no time before February 15, 1965, did the Respondent question the continued
majority of the Unions, and the Respondent, at the hearing, stipulated that through
February 1, 1965, the Unions represented a majority of the employees in their
respective units. The Respondent, then, is apparently contending that the Unions
lost their majority at some time between February 1 and 15, 1965. However, this
was, in any event, subsequent to the acceptance by the Unions of the offer of the
Respondent. Contracts therefore resulted at a time when the Unions were still
recognized as having a majority. Returning members of Office Employees gave
Respondent notice of acceptance of Respondent's offer as early as January 25, but
even if Office Employees' acceptance were to be dated only as of February 3, 1965,
I find no evidence sufficient to show a loss of majority between February 1 and 3.
Since the Respondent's offer was not withdrawn before February 3, Respondent
was still recognizing and offering to renew the old contract of Office Employees,
thereby recognizing its majority. No evidence of loss of majority specifically by
Office Employees was offered by the Respondent in any event. The Respondent
does not contend that there was any failure on the part of Office Employees or
Teamsters Local 495 to accept its offer until the date of express acceptance by
them. It will be observed that the Respondent left its offer, contained in the letter
of January 19, 1965, posted at its various places of business for all former strikers
1o- see until about February 15, 1965. Since I have found that the offer was not
rejected by the Unions and since there appears to be no evidence of a withdrawal
of the offer prior to acceptance, and since the Respondent did not even contend
that the acceptance by Teamsters Local 495 or by Office Employees was ineffective
until it claimed , at the February 15, 1965, meeting that no Union had a contract,
I find that the Respondent had no more reason to question the existence of a con-
tract with Teamsters Local 495 and Office Employees than with any of the other
Unions.
I also find that the Unions, at the meeting with the Respondent on February 15,
1965, by permitting the Respondent to state alternative offers different from the
original offer made on January 19, 1965, did not affect their legal position with
reference to the existence of a collective-bargaining agreement. _
On all the evidence, I find that the Respondent before February 15, 1965, when
it first suggested that there were no agreements , effectively entered into a collective-
bargaining agreement with each of the Unions to renew its expired contract for 1
year from September 1, 1964, and that, by refusing to reduce this agreement to a
written memorial, and by attempting to repudiate such agreement, the Respondent
refused, and still refuses, to bargain with said Unions within the meaning of
Section 8(a)(5) of the Act.
B. Discrimination
The complaint alleges violations of the Act by Respondent in respect to the
reemployment , of strikers and in respect to unilateral changes in terms and con-
ditions of employment of returned strikers.
1. Rehiring strikers as new employees
As previously related, Hughes directed Respondent 's branch managers to have
returning strikers sign application blanks as new employees before rehiring them.
Hughes did not testify that he gave different instructions respecting bus and taxi
drivers, but, such evidence as was adduced , pertained to employees represented
by Teamsters Local 640, which included both bus and taxi drivers . Except for two
men taken back out of order because of preoperational needs, the Respondent took
back IAM men in order of seniority . No evidence was adduced specifically to show
that IAM men were required to sign application blanks as new employees before
they were rehired . The evidence suggests otherwise.
An example of failure to rehire any who failed to make application for work
as a new employee is that of William Thompson , a cabdriver who had been on
strike, and who reported for work on January 30 , 1965, at the instruction of Team-
sters Local 640. The branch manager, Ethel Anderson , when told of this by
Thompson , said that she was uninformed and that she would have to get orders
from headquarters . A few days later Thompson returned , and Anderson handed
Thompson an application form, told him to fill it out, and told him that returning
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers would be new employees. Although Thompson filled in the application, he
did not return it to the Respondent because, he testified, he was 62 years old at
the time of the strike, and he thought he was past hiring age (as a new employee) 17
At the time of the strike, Thompson had a seniority standing tenth from the top
on a list of about 40 cabdrivers at his branch. Early in August 1965, Thompson
again returned to the branch and asked Manager Frank Bernal (or Barial) who
had apparently succeeded Anderson, if he had "anything against" hiring him back.
Berrial told Thompson that he had no objection and directed Thompson to leave
his name and address and he would call Thompson. Thompson had not been
recalled by the time of the hearing. Although Thompson's testimony that new men
had been hired since he spoke with Bernal may not be the best evidence of the
fact, Hughes, himself, testified that Respondent had exhausted its "pool" of strikers
"who intended to return" and began to hire new people by the end of May 1965.
I infer that the "pool" that Hughes referred to was made up of strikers who had
signed application blanks required of them as new employees.
Hughes testified that the Respondent was informed by counsel that it was "in
error" in taking men back as new employees "so we did call them back." Hughes
did not, however, testify as to when Respondent had been so informed or when
Respondent, in fact, ceased to take strikers back as new employees and to give
them seniority. He testified only that the Respondent, when taking back strikers
other than as new employees, employed strikers who had "registered' to return.
It is fairly inferable that the register was made up of men who had been required
to sign application blanks as new employees. No evidence was offered by Respond-
ent to show that it had ever notified the strikers who had not signed application
blanks as new employees of a change in policy with regard to the need for signing
such applications as a condition of reemployment. I deduce that any recognition
of the strikers' rights made after advice of counsel was limited to a restoration of
seniority to men already reemployed, as will be related herein below.
2. Depriving returned strikers of seniority
Loss of seniority as-a result of being rehired as new employees affected the cab-
drivers and busdrivers in a slightly different way. Before the strike, the Respondent
listed the busdrivers in the order of their seniority, and the first 30 drivers so
listed were called "regular drivers." All men whose names, in seniority order, came
after the first 30 were called "extra drivers." No extra drivers were given work
until after all regular drivers had been employed. Vacancies in the list of regular
drivers resulted in the senior extra drivers' moving up to the list of 30 regulars.
Layoffs were in the inverse order of seniority. Men laid off were returned in order
of their seniority. Regular drivers were permitted to choose whether they wished
to work a 40- or a 48-hour week. They were then guaranteed work for such hours.
Drivers, in order of seniority, were privileged to select their choice of equipment
(to a certain number). The better buses were given the better runs. When the bus-
drivers returned to work after the strike, they were no longer listed by their original
seniority The 10 men who had worked during the strike were listed fiist. The
rest of the 30 regular drivers were listed in order of reemployment. No extra
drivers were listed. The drivers no longer were allowed to bid on equipment or
choose the length of their workweek. Hughes explained that the order of listing
was not significant because seniority had no meaning.
On March 22, 1965, the Respondent posted the following notice:
NOTICE TO ALL EMPLOYEES
It has come to the attention of the Company that confusion exists concern-
ing the question of SENIORITY. Much of this confusion is a result of the
recent strike and the unsettled collective bargaining negotiations.
Insofar as the Company is concerned, there is no collective bargaining
agreement in effect at this time covering any of our employees.
The Seniority provisions of the expired collective bargaining agreements
will no longer be followed. The Company is in the process of formulating new
Seniority policies, which it hopes will be incorporated into the collective
17 Thompson testified that he failed to receive a registered letter from Respondent
asking if he would accept employment as he understood other employees had. There is no
other evidence that Respondent sent any such letters to all strikers. Thompson's testimony
appeared to refer to cards sent, presumably, to men who had signed applications, to
ascertain if they were available for work.
TANNER MOTOR LIVERY, LTD. 1685
bargaining agreements which it is attempting to negotiate with the several
unions. [Apparently this refers to the new contract proposals made by
Respondent, subject to new proof of majority.]
Returning strikers will not be penalized with respect to seniority, or in any
other manner. Seniority, within the framework of Company policy now being
formulated, will be computed as to all employees on the basis of total service
with the Company.
The Company is hopeful that employment opportunities will continue to
increase as we resume operations. No reductions in force are contemplated.
All efforts will be made to secure the jobs of all our employees, without
reference to whether they are returning strikers or employees hired during the
strike,
There is no evidence that any other seniority policy was put into effect prior to
late summer of 1965. By April 12, 1965, a couple of drivers had quit and two
former strikers became numbers 29 and 30 on the list of regular drivers. The one
who became No. 29 on the list in April 1965, had been No. 20 on the extra list
before the strike. The one who became No. 30 had been No. 26 on the list of
regular drivers before the strike.
Charles Colton, who had been fifth on the list of regular drivers in seniority
before the strike, returned to apply for his job on January 30, 1965, at 8:20 a.m.
He spoke with Joel Curtiss, the dispatcher (a supervisor). Curtiss took down
Colton's name and the time of application and told Colton that he would turn
the information over to Hughes. On January 31, Curtiss asked Colton to fill out
an application form and told him he was applying as a new employee. Colton
refused to sign as a new employee. Curtiss told Colton that if he did not fill it in
as a new employee, he (Curtiss) would. The record is not clear as to whether or
not Colton signed the application form at all. Others who filled in application
forms as new employees at that time were hired by February 6, 1965.18 Colton
was not called to work until April 12, 1965, when Curtiss called him and told him
that he was being hired as a new employee, that he had lost his seniority, that he
would be on the list of extra drivers and would be called as needed. During April
and May, Colton was given an opportunity to work about 26 or 27 working
days. On a number of these occasions he was away from home when the telephone
call was made and he lost the chance to work. In June 1965, he was given regular
employment. In that month, Respondent began a practice of listing the names of
regular drivers by alphabet, with the date of their original employment to the
left of their names. Not until September 16, 1965, did the Respondent again revert
to the practice of listing the regular drivers in order of seniority.
Taxicab drivers had previously enjoyed, as part of their seniority, the privilege
of bidding every 6 months for shifts, cabs, days off, number of days off (1 or 2),
and (at the Santa Monica branch) location (Santa Monica or Venice). Shifts
vacated had been subject to bid, by seniority, between the 6-month sign-up. Senior-
ity rules also had applied to layoff and recall under their expired contract. Cab-
drivers had had a maximum of 30 days' leave a year (exclusive of absence because
of illness or injury), without loss of seniority. After the strike, cabdrivers lost
their right to bid on shifts, on cabs, or days off.
An example of the effect of loss of seniority by a cabdriver is given in the case
of Paul Nadovic, who had worked for the Respondent as a cabdriver from 1946
to the,date of the strike in 1964. He had been first in seniority at the Santa Monica
branch, and he had been, by preference, on the day shift and he had chosen
Santa Monica as against Venice as his territory. In early February 1965, after the
strike ended, Nadovic returned to apply for his job. After filling out the application
form for new employment given him by Respondent, Nadovic was notified to come
to the branch office on February 10. When he came, Branch Manager Anderson
told him he could have a job driving a cab in Venice, California, on the night
shift. His seniority was given no consideration in choice of either place or shift.
He took the job but was terminated after 8 days of reemployment for a reason
which was not an unfair labor practice. Had the Respondent given effect to the
as Melvin Creps, who had been the most senior driver before the strike, filled in the
application blank given him by the Respondent and returned it on February 4, 1965,
several days after Colton was asked to sign one. Creps was rehired at once, but his name
followed those of the 10 drivers hired during the strike on the list of regular drivers.
He was returned to the top of the list of regular drivers in September, 1965.
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renewed contract, Nadovic would have been entitled to carry his discharge through
the grievance procedure , but this was not made available to him.
As in the case of busdrivers, the Respondent eventually began to list taxi drivers
in alphabetical order with date of employment shown to the left of their names.
Any privileges accorded as a result of this recognition of seniority are not shown
by the evidence . Hughes admitted that he was not too familiar with the taxicab
part of the business and some of his testimony regarding the value of seniority of
cabdrivers was guesswork.
By depriving reemployed former strikers of their seniority, the Respondent
engaged in unfair labor practices within the meaning of the Act.
3. Unilateral changes in working conditions
In addition to Respondent's elimination of seniority of bus drivers (before
September 1965) or modification of seniority benefits without bargaining with the
Unions, Respondent unilaterally eliminated or changed other conditions of their
employment . On February 6, 1965, when opening bus operations , Respondent
posted the following notice:
A STATEMENT OF POLICY
BUS DRIVERS
2-6-65
A work day is eight hours out of a nine hour period , with one hour off for
lunch. [The work day had been 8 hours out of an 81h-hour day, with 1h hour
off for lunch.]
A driver called in will receive a minimum of four hours pay. [Before the
strike he had received 8 hours' pay if called in.]
The rate of pay is $2.50 per hour . [This was a reduction of 30 cents an
hour.]
For work performed in sightseeing , the driver will receive an additional
500 per hour . [This was a limitation and modification . Formerly all bus
drivers 19 had been entitled , by terms of the contract , to receive a bonus of $2
per half shift.]
Work time in excess of eight hours per day will be paid at the overtime
rate of one and one-half times the straight hourly rate . [No change, standing
alone.]
All standby time in excess of one continuous hour will be paid at the straight
time rate and will not be included as hours worked for the calculation of
overtime . This applies to Charter, Race Track , Special Services , and garage
standby time . [New.]
There will be a vacation allowance of one week after one year of continu-
ous service . [No change except as to definition of one week .] The vacation
allowance will be two weeks after five years of continuance service. [This
eliminates 9 days' vacation which formerly had accrued to employees who
had been employed from 2 to 5 years.] And will be three weeks after ten
years of continuous service. [No change .] A year of continuous service refers
to that period between anniversary dates of employment. Continuous employ-
ment will not be interrupted by authorized leaves of absence, illness, or injury,
but if such absences exceed one month , that vacation will be prorated accord-
ingly. [Previously 1400 hours worked in a year was a prerequisite . Otherwise
no change.]
A week consists of five days . [Formerly a bus driver could have elected to
work 5 or 6 days a week and a vacation was defined as 6 days. The change
would result in loss of 1 day's vacation pay.] A year will consist of twelve
consecutive months, beginning with the date of employment. [Not previously
defined.]
All new employees may be dismissed within the first thirty days, at the
discretion of the company. [New.]
Some benefits previously enjoyed were apparently extinguished by failure to include
them in this notice, such as commissions on sale of tickets , fee for changing tires
or for applying a set of chains , provision for expenses of drivers required to leave
the city, paid holidays, etc.
1e There was testimony that this bonus was limited to sightseeing drivers The contract
does not show this limitation , but it may have been interpreted as applying only to them.
TANNER MOTOR LIVERY, LTD. 1687
Cabdrivers also lost many of their benefits.20 Hughes testified that vacation
Tights were changed and that, in many instances, the length of vacation would be
less. Actually, no paid vacation had been provided to taxidrivers by their expired
contract. They apparently took leave without pay.
Before the strike, cabdrivers had received a 50 percent commission after the
first 30 days' employment (during which period the commission was 45 percent).
After the strike, when the strikers were being taken back as new employees, they
apparently were paid the 45 percent commission. At the February 15 meeting,
when Hackler called attention to this fact, Kirshman stated that this had resulted
from a misunderstanding and that all returning strikers would receive their 50
percent commission. There is no evidence as to whether or not they ever did
retroactively to date of reemployment. There is also no evidence as to whether
or not the minimum guarantees previously provided remained in effect after the
-strike.
On August 10, 1965, the Respondent posted a notice that, effective on August 16,
1965, rates for cabdrivers would be as shown. The rates shown ranged from 40 to
45 percent commission depending on length of service. The notice identified the
,cab business as operated by Pacific Coast Transportation Co., a name which Hughes
did not know; but Hughes testified that a sale of the cab business in Santa Monica,
Pasadena, and Glendale were "in the making" to the branch managers. So far as
Hughes knew, the sale had not been consummated and he had not notified the
Unions of any transfer of the cab business. At the hearing, Kirshman, counsel for
Respondent, stated that it was his understanding that the sale had not been
"finalized." Under the circumstances, I find that the Respondent was, at least to
the date of the hearing, the legal operator of the cab business and was responsible
for the rate change which was posted in August 1965. -
4. Conclusions regarding unilateral changes in wages, hours,
and working conditions
The Respondent contends that it was justified in effecting unilateral changes in
wages, hours, and working conditions not only because the Unions lacked a majority
but also because an impasse has been reached. These two justifications are mutually
exclusive. No impasse can be reached where an employer refuses to recognize a
union as a majority representative or refuses to bargain unless the representative's
majority 'is proved . An impasse presupposes recognition and bargaining . When, in
this case , could an impasse have arisen ? Does the Respondent argue that it arose
before the Unions accepted Respondent's offer of January 19, 1965? If so, the
argument is untenable because the Unions accepted the offer . No impasse can
exist where the parties are in agreement . Or does the Respondent contend that the
impasse occurred as a result of the fact that the Unions did not accept the offers
made by Respondent later in February 1965, in the form of new contracts sub-
mitted on condition that the Unions prove their majority? This is impossible,
because even if the Respondent were right in its contention that no contracts had
previously been reached, the Respondent was not, in February, making an offer to
a recognized collective-bargaining representative of the employees. An impasse
can exist only when there is actual bargaining with recognized representatives.
Obviously, therefore, the Respondent was not justified, on the impasse theory, in
making the changes in wages, hours, and working conditions herein found to have
been made.
I have heretofore found that the Respondent was under contract to the several
Unions here involved as a result of their acceptance of the Respondent's offer of
January 19, 1965, and that, by failing and refusing to incorporate such contract
into a written memorial and by refusing to give effect to any such contracts, the
Respondent committed unfair labor practices within the meaning of Section 8(a)
(5) of the Act. It follows therefore that all unilateral changes put into effect by
the Respondent likewise was a violation of Section 8(a)(5) and (1) of the Act.
In addition, I find that, to the extent that such unilateral changes adversely affected
returning strikers , Respondent discriminated in regard to the hire and tenure of
20 The Respondent's proposed contract for cabdrivers, submitted to Teamsters Local
in February 1965 ( subject to proof of majority) and which would have shown conditions
instituted for cabdrivers by Respondent at the end of the strike, was not introduced in
evidence. The Respondent was given the privilege of supplying the proffered contract as
an exhibit , by stipulation , after the end of the hearing but failed to do so.
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment of such employees in violation of Section 8(a)(1) and (3) of the Act.
I also find that Respondent violated Section 8(a)(1) and (3) of the Act by
Respondent 's failure or refusal to reemploy any striker who made unconditional
application for reinstatement but who would not fill out and submit an application
blank as a new employee and by Respondent's treating, as new employees, for a
period of time, strikers who had submitted such applications as new employees .21
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent , described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since I have found that the Respondent has engaged in unfair labor practices
violative of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it
cease and desist therefrom and that it take certain affirmative action designed to
effectuate the policies of the Act.
Because of the nature of the unfair labor practices found above, and in order
to make effective the interdependent guarantees of Section 7 of the Act, I shall
recommend an order which will have the effect of requiring the Respondent to
refrain, in the future, from abridging any of the rights guaranteed employees by
said Section 7 of the Act.
I have found that the Respondent offered to renew the contract of each of the
Unions for a period of 1 year commencing with September 1, 1964, and expiring
on September 1, 1965, and that the Unions on various dates in January 1965,
accepted such offer. Although this term has now expired, the remedy should require
that the Respondent execute a written memorial of the agreement so reached.22
Because of the probability that there may be litigations based thereon before tribu-
nals other than the Board, in which the proof of such contract will have to be
made, I shall therefore recommend an order that the Respondent execute the
agreement agreed upon with each of the several Unions here involved and that it
give retroactive effect thereto. This will require Respondent to make whole all
employees, including all strikers who should have been taken back as employees,
by paying to them a sum of money equivalent to the difference between what they
earned and that which they would have earned under such contract, this will also
require Respondent to process through the grievance machinery all grievances
which the Respondent refused to process under such agreement.
Because I have found that the Respondent did not accept the oral applications
for employment by some of the strikers at the termination of the strike because
of its illegal action in requiring applications to be filled out and submitted as new
employees, I shall recommend that the Respondent offer to any employees who, at
the time of the strike, made application but did not submit the written application
for employment as new employees required by Respondent , immediate and full
reinstatement to their former or substantially equivalent positions and make them
whole for any loss they may have suffered by paying to them a sum of money
equal to that which they would have earned in the Respondent's employment had
the Respondent afforded to them their full rights as returning strikers. I shall
recommend also that, in order to give effect to this recommendation, the Respond-
ent discharge, if need be, any new employees hired after the date such former
strikers would have been reemployed, absent discrimination. The evidence indicates
that the Respondent offered reemployment to all those who filled out written
applications. However, in the event that this information proves incomplete or
inaccurate , then I recommend that the Respondent likewise offer to any returning
strikers who filled out such applications employment in the same manner as those
who made only oral application. I shall further recommend that the Respondent
21 Robinson Freight Lines, 114 NLRB 1093, enfd. 251 F.2d 639 (CA. 6) ; Fitzgerald
Mills Corpbrdtion, 133 NLRB 877, enfd . 313 F.2d 260 (C.A. 2), cert. denied 375 U.S. 834,
Phalanx Oldsmobile , Inc, 137 NLRB 867
za Ogle Protection Service, Inc., 149 NLRB 454; Los Angeles Mailers' Union No 9, 155
NLRB 684.
TANNER MOTOR LIVERY, LTD. 1689
take whatever steps are necessary to ensure that all former strikers who are entitled
to it are restored to the same condition they would have been in had the Respond-
ent given effect to the renewed contracts.
I shall make no recommendation that Respondent bargain with any of the four
Unions after September 1, 1965, since the complaint alleges no refusal to bargain
after that date.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Chauffeurs Union, Local No. 640, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America; Teamsters Automotive Workers,
Local No. 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America; International Association of Machinists, AFL-CIO, Lodge
No. 1186; and Office Employees International Union, Local No. 30, AFL-CIO,
are labor organizations within the meaning of Section 2(5) of the Act.
3. The following units are appropriate for collective bargaining within the
meaning of Section 9(b) of the Act:
(a) All Respondent's busdrivers based in Los Angeles County, excluding guards,
watchmen, and supervisors as defined in the Act.
(b) All Respondent's taxicab drivers based in the cities of Pasadena, Glendale,
and Santa Monica, excluding guards, watchmen, and supervisors as defined in
the Act.
(c) All Respondent's employees classified as U-drive men, tire changers, lube-
men, washers and polishers, and clean-up men, employed in Los Angeles County,
with the exception of those based at Los Angeles International Airport, excluding
guards, watchmen, and supervisors as defined in the Act.
(d) All gas pump operators, steam rack operators, wash rack operators, lubrica-
tion men, polishers, tire service men, combination men, parking men, front men,
and U-drive men, employed at Los Angeles International Airport, excluding guards,
watchmen, and supervisors as defined in the Act.
(e) All Respondent's accounting clerks, chief clerks, chief dispatchers,, dis-
patchers, and switchboard operators, excluding guards, watchmen, and supervisors
as defined in the Act.
(f) All Respondent's mechanics (gas and diesel), machinists, metal men, paint-
ers, body builders, radiator repairmen, trimmers, welders, apprentices and helpers,
excluding guards, watchmen, and supervisors as defined in the Act.
4. The following Unions, by virtue of having been designated or selected by a
majority of the employees in the respective units described in paragraph 3, above,
as their representatives for the purpose of collective bargaining, have been, at all
times material hereto, the exclusive collective-bargaining representative of employ-
ees in the following units:
(a) Chauffeurs Union Local No. 640, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, is the designated collective-
bargaining representative for all employees within the units described in paragraph
3(a) and (b) above, for the purpose of bargaining with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment, within
the meaning of Section 9(a) of the Act.
(b) Teamsters Automotive Workers, Local No. 495, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, at all times
material hereto, has been the exclusive collective-bargaining agent for the employees
within the unit described in paragraph 3(c) and (d) above, for the purpose of
bargaining with respect to wages, hours, and other terms and conditions of employ-
ment, within the meaning of Section 9(a) of the Act.
(c) Office Employees International Union, Local No. 30, AFL-CIO, at all times
material hereto has been the exclusive collective-bargaining agent of all Respond-
ent's employees in the unit described in paragraph 3(e) above, for the purpose
of bargaining collectively with respect to wages, hours, and other terms and con-
ditions of employment within the meaning of Section 9(a) of the Act.
(d) At all times material hereto, International Association of Machinists, AFL-
CIO, Lodge No. 1186, has been the exclusive bargaining representative of all
employees within the unit described in 3(f) above, for the purpose of collective
bargaining with respect to wages, hours, and other conditions of employment
within the meaning of Section 9(a) of the Act.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By failing and refusing to execute a written agreement extending the last
expired contract of each of the above-named Unions for a period of 1 year
from September 1, 1964, to September 1, 1965, as agreed by Respondent and by
refusing to give effect to the terms thereof, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
6. By refusing on and after February 15, 1965, to recognize or negotiate with
said Unions as the majority representative of the Respondent's employees in the
appropriate unit described above with reference to rights and privileges of employ-
ees growing out of said contracts, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
7. By unilaterally changing wages, hours, and other terms and conditions of
employment on and after February 6, 1965, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
8. By refusing to reemploy unreplaced economic strikers except as new employ-
ees, and by reemploying some of them as new employees without their former
seniority rights, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
9. By discouraging membership in the aforesaid Unions by discrimination in
regard to hire or tenure of employment, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
10. By the conduct described in paragraphs 5, 6, 7, 8, and 9 of these Conclusions
of Law, Respondent has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
11. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
as determined in section V heremabove, entitled "The Remedy," I recommend that
Respondent Tanner Motor Livery, Ltd., it officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Repudiating or refusing to sign or give effect to an agreement entered into,
by Respondent with each of the Unions herein involved (Chauffeurs Union, Local
No. 640, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America; Teamsters Automotive Workers, Local No. 495, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America;
International Association of Machinists, AFL-CIO, Lodge No. 1186; and Office
Employees International Union, Local No. 30, AFL-CIO), in January 1965,
wherein the former agreements with each of said Unions was extended from
September 1, 1964, to September 1, 1965.
(b) Refusing to recognize or to bargain with any lawfully designated collective-
bargaining representative of its employees, and specifically from refusing to bargain
with each of the aforesaid four Unions retroactively concerning issues which arose
under the contracts herein found to have been extended to September 1, 1965,
including, but not limited to the processing of grievances and the arbitration of
disputes as provided in said contracts.
(c) Rehiring unreplaced strikers (who at the conclusion of a strike make
unconditional application for reemployment), as new employees or requiring any
economic striker who has not been permanently replaced and who, at the con-
clusion of a strike, makes unconditional application for reemployment, to make
application as a new employee as a condition of employment.
(d) Unilaterally changing wages, hours, or working conditions at a time when
its employees are represented by a collective-bargaining representative.
(e) Discouraging membership in any of the aforesaid Unions by discriminating
in regard to the hire or tenure of employment of any of its employees.
(f) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form, join, or assist labor orga-
nizations, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in Section
8(a)(3) of the Act.
TANNER MOTOR LIVERY, LTD . 1691
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request by each of the aforesaid Unions, sign the collective-bargaining
agreement reached in January 1965, renewing their respective previous contracts
from the date of their expiration (September 1, 1964) to September 1, 1965, and
give retroactive effect to the agreements so executed.
(b) Upon request, bargain with each of the said Unions collectively with respect
to any issues which may have arisen under such renewed agreements, including
the settlement of grievances and disputes entitled to be arbitrated.
(c) Offer to each former striker who made unconditional application for rein-
statement (but who was not reemployed by Respondent because of his failure
or refusal to make a written application as a new employee), immediate and full
reinstatement to his former or substantially equivalent position, provided said
employee had not, at the time of application, been permanently replaced, and
provided that work was then, or thereafter became, available, discharging, if nec-
essary, any new employee who was hired after the date of any such application.
(d) Make whole all former strikers who, at the conclusion of the strike in
January 1965, made unconditional application for reinstatement and who then or
thereafter were denied available employment because of their failure to sign appli-
cations as new employees, by paying to each of them a sum of money which he
would have earned in Respondent's employ, absent the discrimination against him,
between the date on which he was denied available work and the date of Respond-
ent's offer of reinstatement.
(e) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all records necessary and useful to determine the amount
of backpay due under the terms of this Recommended Order, including pertinent
social security payment records, timecards, and personal records and reports.
(f) Post at its principal place of business in Los Angeles, California, and at
each of its branches in Los Angeles County, California, copies of the attached
notice marked "Appendix." 23 Copies of said notice, to be furnished by the Regional
Director for Region 31 of the Board (Los Angeles, California), after having been
duly signed by Respondent, shall be posted immediately upon receipt thereof, in
conspicuous places, and be maintained by it for a period of 60 consecutive days
thereafter. Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify said Regional Director, in writing, within 20 days from the date of
the service of this Trial Examiner's Decision, of what steps the Respondent has
taken to comply herewith 24
xi In the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words the Recommended Order of a
Trial Examiner " in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision
and Order."
In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify the Regional Director , in writing , within 10 days from
the date of this Order , what steps Respondent has taken to comply herewith."
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT refuse to recognize or to bargain collectively with any collec-
tive bargaining representative chosen by a majority of our employees in an
appropriate collective-bargaining unit, with respect to wages, hours, and other
terms and conditions of employment.
WE WILL NOT refuse to reemploy any unreplaced economic striker who, at
the conclusion of a strike, makes unconditional application for reemployment
when work is available, and WE WILL NOT require that ,returning economic
strikers return as new employees.
WE WILL NOT discourage membership in Chauffeurs Union, Local 640,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America; in Teamsters Automotive Workers, Local 495, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America;
in International Association of Machinists , AFL-CIO, Lodge No. 1186; or in
Office Employees International Union , Local No . 30, AFL-CIO by discrimi-
nating in regard to the hire or tenure of employment or any term or condition
of employment of any reemployed striker.
WE WILL NOT in any other manner interfere with, restrain, or coerce
employees in the exercise of their right to self-organization, to form, join, or
assist labor organizations , including those above named , to bargain collec-
tively through representatives of their own choosing , or to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized in Section
8(a)(3) of the National Labor Relations Act, as amended.
WE WILL, upon request by any of the above-named Unions, execute written
agreements renewing the agreements with said Unions which expired on Sep-
tember 1, 1964, for a term of 1 year to September 1, 1965, and WE WILL
give retroactive effect to such agreement or agreements on all terms thereof,
including, but not limited to, the provisions relating to wages, bonuses, and
all other benefits , and processing , if requested , all grievances raised during
the term of such renewed contracts.
WE WILL make whole all employees for any loss suffered by them by reason
of our refusal to execute such agreements or to give effect to them, and WE
WILL make whole all strikers who, at the end of the strike in January 1965,
made unconditional application to us to return to work and who were either
rehired by us as new employees or were denied available work because they
refused to sign applications as new employees.
TANNER MOTOR LIVERY, LTD.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 312
North Spring Street, Los Angeles, California, Telephone 688-5844.
Ferrell -Hicks Chevrolet , Inc. and Andrew Burinskas, an Indi-
vidual . Case 13-CA-4886. October 7, 1966
SECOND SUPPLEMENTAL DECISION AND ORDER
On April 22, 1963, a majority (former Members Leedom and
Rodgers) of a National Labor Relations Board panel issued a Deci-
sion and Order (142 NLRB 154) in this proceeding, dismissing the
complaint on the ground that the General Counsel had failed to
establish by a preponderance of the evidence that Respondent dis-
charged Andrew Burinskas in violation of Section 8(a) (3) of the
National Labor Relations Act, as amended. Chairman McCulloch, the
third member of the panel, dissented and would have adopted the
finding of the Trial Examiner that the discharge was in violation of
Section 8(a) (3).
160 NLRB No. 134.