Transport Co. of Texas

National Labor Relations Board - Board Decisions

Apr 30, 1969

175 N.L.R.B. 763 (N.L.R.B. 1969)

TRANSPORT COMPANY OF TEXAS 763
Transport Company of Texas and Oil , Chemical and
Atomic Workers International Union , AFL-CIO.
Case 23-CA-3014
April 30, 1969
DECISION AND ORDER
On October 25, 1968, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices in violation of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief and the
Respondent filed an answering brief,
cross-exceptions, and a brief in support thereof.
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 the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Transport Company of
Texas, of Corpus Christi and Brownsville, Texas, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
We agree with the Trial Examiner that the Respondent's refusal to
comply with the Union's request to meet for collective bargaining , after the
strike of May 1968, constituted a violation of the Act We do not, as
contended by our dissenting colleague, hold that the Respondent's refusal
was violative simply because a strike had intervened between the
bargaining impasse and the Union's latest request for a meeting . Rather
we find, as did the Trial Examiner, that under all the circumstances,
including the strike which was lost by the Union, the replacement of
strikers, the wage changes instituted by the Respondent, and the hiatus of
7 months since the last bargaining meeting, conditions had changed
materially from those existent at the time of impasse . In the light of the
Union's request for a bargaining meeting with the Respondent after these
substantial changes had occurred , the failure of the Union to declare
publicly that its demands had not lessened must be discounted and does
not relieve the Respondent from its obligation under Sec 8(d) of the Act
to meet at "reasonable times" with the Union On these facts , and mindful
of the public policy of promoting and encouraging collective bargaining at
reasonable times and in good faith , the refusal of the Respondent to meet
with the Union after the strike was violative of Sec. 8(a)(5) of the Act.
MEMBER ZAGORIA, dissenting:
Respondent Company bargained with the Union
from January 28 to October 7, 1967, concededly in
good faith throughout. At the last meeting, on
October 7, the parties still remained apart on several
major issues. The meeting terminated after the
Federal Mediator consulted each side about further
concessions and received a negative answer from
each.
In April 1968, the Union requested a meeting,
presenting a series of demands, some of which were
renewals of earlier demands and others of which
were greater than ones the Respondent had already
rejected. The Respondent replied to the Union that
the differences appeared to be widening, and there
was no basis for meeting anew. This refusal to meet
was alleged by the General Counsel as unlawful.
The Trial Examiner concluded that "a genuine
impasse on major issues" had been reached on
October 7, 1967, and no change in circumstances
had occurred to revive the Respondent's duty to
meet and bargain with the Union and dismissed the
allegation. Subsequently, about May 1, 1968, the
Union called a strike, which lasted only 2 days. On
May 6, the union representative asked the Federal
Mediator to arrange another bargaining meeting,
and then, at the mediator's suggestion, requested the
Company for such a meeting. The Company
responded in much the same vein as it had to the
April 1 prestrike request, reviewing the history of
negotiations and pointing out that there "seems to
be no useful purpose in scheduling a further
bargaining session." This refusal to meet the Trial
Examiner found violative of Section 8(a)(5) on the
per se ground that the 2-day intervening strike
required the Company to meet once again.
In my opinion, this finding is unrealistic and
unsound. Had the Union come in after the brief
strike, and requested a meeting, and the Company
merely responded with a flat "no," I might well find
a violation, for it is, as the Trial Examiner pointed
out, likely that the Union in these circumstances
would be "more willing. . .to compromise the
matters in dispute," its prestrike position being
weakened by the abandonment of the strike. But
here the Company in effect did bargain by seeking
some evidence that such was the case, with a
background of its lawful refusal to meet 1 month
earlier when no overt evidence of a Union
willingness to compromise was offered. The
Company was, for practical purposes, tossing the
ball back to the Union - it was saying, "give us
something to indicate that a meeting will serve some
useful purpose." Yet the Union failed to respond; it
chose to file charges instead. Union officials need
not have formulated a whole new set of proposals,
nor specifically receded from earlier demands. It
would have sufficed, in my view, had they indicated
some awareness, by word or deed, that they had lost
the strike, and were approaching the Employer with
a willingness to compromise. Indeed my colleagues
175 NLRB No. 130
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impute to them such a willingness, but without any
evidentiary basis for so doing. I, too, believe in
talking and meeting as a way to resolve differences.
But when the differences have long since been talked
about to the point of a "genuine impasse," in the
words of the Trial Examiner, meeting for meeting's
sake alone becomes an empty formality and an
order to meet a ritual rather than a rapprochement.
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This case was
heard before me in Brownsville, Texas, on August 5 and
6, pursuant to a charge filed on May 8, and complaint
issued on June 19, 1968. Respondent is alleged to have
violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended. All parties appeared
and were afforded full opportunity to be heard and to
examine and cross-examine witnesses. All waived oral
argument at end of the hearing. Briefs were received from
General Counsel and Respondent.
Upon the entire record in the case,' and from my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF THE COMPANY; LABOR ORGANIZATION
INVOLVED
Respondent is a Texas corporation with its principal
office and place of business in Corpus Christi, Texas. The
only facility here involved is Respondent's terminal in
Brownsville, Texas, where Respondent is engaged in
transporting crude oil in tank trucks to and from the Port
of Brownsville, Texas, across the Mexican border. During
the representative year preceding the complaint,
Respondent's earnings from these services exceeded
$50,000. I find that at all material times Respondent has
been and is engaged in commerce within the meaning of
the Act; and that assertion of jurisdiction here is proper.
The Charging Party, herein called the Union, is a labor
organization within the meaning of the Act.
H. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues here are: (1) whether Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to meet and
bargain with the Union, the majority representative of its
employees, on and after November 22, 1967; and by
unilaterally announcing and placing in effect wage
increases to employees, without prior consulation with the
Union; and (2) whether Respondent violated Section
8(a)(3) and (1) of the Act by refusing to reinstate unfair
labor practice strikers. Respondent's basic defenses are
that its refusal to meet and confer with the Union was in
consequence of an impasse in negotiations reached on
October 7, 1967; that although Respondent gave advance
notice of the wage increases, the Union failed to request
bargaining thereon; and that the ensuing strike was
"economic" and the strikers denied reinstatement were
permanently replaced before evidencing desire to return.
'Transcript corrected by my order on notice dated October 3, 1968.
B. The Negotiations
1. Introduction
On December 12, 1966, the Union was certified as the
exclusive bargaining representative of Respondent's
drivers, mechanics, and servicemen.' In the ensuing
negotiation meetings (January 28, March 4 and 18, May
9, June 10, July 29, and October 7, 1967), the chief
spokesmen for the Union and Company were
International Representative Elro Brown and Company
Attorney William A. Brown. The last four sessions were
conducted under auspices of the Federal Mediation and
Conciliation Service. It is undisputed that the parties
exchanged proposals and counterproposals, that
Respondent furnished the Union with requested
bargaining information, and that concessions were made
by each of the parties. General Counsel has conceded (br.
p. 5) that "No contention was made . that
Respondent's conduct at the bargaining table during the
seven bargaining sessions which climaxed at the meeting
of October 7, 1967, constituted surface bargaining or that
Respondent had violated the Act in that respect."'
General Counsel's "position is simply that commencing
with request made by the Union on November 22 and
November 27, 1967, which continued in full force and
effect and which reiterated by the Union's letter of April 1
and May 7, 1968, Respondent violated Section 8(a)(5) of
the Act when it refused to meet and discuss the terms of a
collective-bargaining contract with the Union." (br. p. 5)
Since, Respondent's prime defense is "impasse" on
October 7, it is necessary to examine the positions of the
parties and the status of negotiations at their October 7
meeting.'
2. The July 29 and October 7 meetings
As General Counsel states (br. p. 6), at the sixth (July
29) meeting "there was substantial agreement as to many
items which would form the nucleus of a
collective-bargaining contract." He further points out,
however, that there were significant differences on
"substantial subjects," including wages, discharge and
discipline, seniority, management prerogatives, fringe
benefits (vacation, sick pay, holidays, funeral and
grievance pay, etc.), and dues checkoff. For example, it
was at that meeting that Company Attorney Brown told
the Union "that we would not agree to any of its
proposed language dealing with the subject of discharge of
'The record (Reap . Exh. 10) indicates that during part of the period here
involved (May 1, 1968) Respondent employed 20 drivers, 4 mechanics, and
2 servicemen.
'Although at one point in the hearing counsel for General Counsel
suggested that this contention results from the Sec . 10(b) 6-month
limitation period , at another point he flatly stated that "there is no
contention of a failure to bargain in good faith up to and including this
(October 7] meeting ." In any event , for reasons to be stated, the record
does not support a finding of lack of good-faith bargaining by Respondent
before and at the October 7 meeting.
'All date references are July 1967 - May 1968 , unless otherwise
indicated.
As the parties indicate in their briefs (G.C. br p. 5, Resp . br. pp. 7-8),
the facts in this case are essentially undisputed being stipulated or in
documentary form . The few instances of testimonial conflict have normally
been resolved in favor of Respondent . Attorney Brown (who kept and
testified from extensive, contemporaneous notes ) impressed me as a
forthright witness . General Counsel's witness, Union Representative Brown
testified mainly from memory and his recollection of certain events
appeared vague and uncertain.
TRANSPORT COMPANY OF TEXAS
drivers, with the subject of seniority, management
prerogative or the arbitration subject in such a manner as
would deprive the Employer of uncontrolled discretion to
determine whether drivers who had been involved in
accidents should continue to work for the Company."5 As
to wages, Respondent agreed to the Union's $2-per-load
request for drivers, but rejected the Union's further
demand for a $100-a-week minimum guarantee if oil was
hauled during the week,' explaining that this was its "final
offer on wages" Respondent steadfastly resisted the
Union's fringe benefit demands, including a vacation
proposal calling for a graduated 'scale ranging from 2
weeks for 1 year's service to 5 years for 20 years' service.
At the October 7 (final) meeting, the parties negotiated
extensively, separately, and jointly with the Federal
Mediator, Company Attorney Brown presented the Union
with documents, listing or noting agreed items and "basic
differences." Positions were reviewed and proposals and
counterproposals were exchanged. The Union withdrew or
reduced its economic demands involving such items as
holiday pay, sick pay, shift differential pay, and vacation
entitlement (reducing its demand from 2-5 weeks' pay to
1-2 weeks' pay, depending on years of service).
Respondent, on the other hand, agreed to commit itself to
existing "benefit plans" (including health and life
insurance program and profit-sharing plan),' withdrew its
objection to a dues checkoff, and increased its wage offer
from $2 to $2.10 per load for drivers. The parties also
agreed on a compromise grievance procedure clause,
proposed by the Federal Mediator, under which the Union
withdrew its insistence upon arbitration as a final step in
the grievance procedure; the new clause stipulated that the
grievance procedure was "optional" and that the Union
could "resort to other legal and economic measures" upon
60-day notice to the Company. However, the parties still
remained apart on major issues, including guaranteed
wages for drivers, company control over discharge and
discipline of drivers (particularly in accidents), right to
subcontract, management rights, seniority in layoff and
recall, and fringe benefits (funeral pay, accident, and jury
pay, etc.).'
Company Attorney Brown credibly testified that at the
end of the October 7 session (Saturday afternoon) the
'Company Attorney Brown pointed out that Respondent had always
"imposed upon" its drivers "a concept of driving defensively . which
was a completely different standard from fault . involved in the
litigation of tort claims resulting from accidents", that Respondent had
previously discharged drivers although believing them to be without fault in
the accidents ; and that it had been "the target of public criticism" and
subjected to public hearings when divers were involved in fatal accidents.
`The same wage rate and guarantee had been in effect in a contract
between the Union and Line Service, a competitor of Respondent in
hauling oil to and from Mexico . Respondent also rejected an alternative
Union proposal of $1.85 an hour (instead of $2 per load), with the same
$100 guarantee paid to drivers of a nonunion company (Robertson Tank
Lines) engaged in similar hauling Company Attorney Brown explained
that Respondent could not afford a $100 weekly guarantee since (unlike
Line Service and Robertson who were engaged in diversified operations),
"we had no way of absorbing that cost in some other line"
'Although Union Representative Brown testified that these plans, to be
appended to the contract , were not produced at the October 7 meeting, he
indicated that he was familiar with them since Company Attorney Brown
had given him "a booklet" on the insurance plan at a prior meeting and
"orally described" to him the profit-sharing plan
'The status of negotiations at the end of the October 7 meeting is shown
in G C. Exh 2 - agreed clauses appearing in lower case type, Company
proposals unacceptable to the Union in capital letters, and Unien
proposals rejected by the Company in capital letters underlined. The
parties stipulated this to be "an accurate portrayal" of their positions other
than as to one aspect on wages
765
Federal mediator consulted with each side about the
possibility of further concessions to resolve the dispute
Turning to Union Representative Brown , the mediator
asked, "Do you know any other offer to submit?" When
told "No," the mediator addressed the same question to
Company Attorney Brown who similarly answered "No."
The mediator repeated the question and the parties again
stated that they had nothing further "to submit for
consideration." He then terminated the meeting, stating,
"I see no further point in continuing this session ." Union
Representative Brown said that he would report on the
"status" of the negotiations to the employees, that he
would "immediately commence to picket," and that
pickets would be posted on Monday morning.'
Later the same day (October 7), Attorney Brown met
with Company officials to plan "the Company's strategy .
.. for the strike which had been threatened for Monday
morning." Vice President Dodds "engaged a patrol service
. to provide night watchmen service" during the
anticipated strike. On Monday morning, before work
started, Dodds observed groups of employees " mingling
around," but all employees reported to work on schedule
and the strike did not materialize. At the end of that day
(Monday), Dodds spoke to the men, reporting on the
Company's last $2.10-per-load wage offer at the October
7 meeting, the Union's rejection of the offer, and its
threat to strike. Dodds told the men of Respondent's
intention "to continue to operate" during the strike, to use
permanent replacements if necessary, and that if strikers
"later . decide to come back, [the] Company will be
glad to have you come back . provided a permanent
replacement has not been hired."
On October 9, Company Attorney Brown wrote the
Union, reviewing the Company's position on wages,
characterizing the Union as "unreasonable in rejecting [its
latest $2.10-per-load] offer and going on strike as you
have said you intend to do," and reiterating the
Company's intention to operate with replacements in case
of a strike. He enclosed a copy of his October 7 "Status
of Negotiations" compilation (G.C. Exh. 2).
On October 27, Respondent (through its attorney)
prepared a letter for distribution to its employees,
informing them of the outcome of the negotiations, the
Union's threat to strike, and the Company's right to
replace strikers. After pointing out that the Company
would not make "wage changes or other basic changes in
policy without first discussing it with the Union" so long
as the Union continued as the employees' majority
representative, the letter stated that because "the
negotiations have been deadlocked" since October 7,
"[u]nder the law the Company is now free to grant the
drivers an increase to the amount [$2.10 per load] offered
to the Union and rejected," effective as of October 23. It
was stipulated at the hearing that Respondent placed this
wage increase into effect."
'Company Vice President Dodds corroborated Attorney Brown's
testimony respecting the manner in which the October 7 meeting ended I
do not credit Union Representative Brown's version of the incident,
including his testimony that the meeting ended because the Company
attorney had to leave to make "a plane reservation ," a matter specifically
denied by the Company attorney who testified in detail as to how he
canceled that reservation and made a new one for a later plane to enable
him to remain at the meeting
"The complaint allegation (par 10(a)) that this wage increase
constituted unlawful unilateral action was withdrawn by General Counsel
as barred by the 6-month statutory limitation of Sec . 10(b) of the Act.
Accordingly , no findings are necessary concerning this conduct.
Respondent's October 27 letter to the employees also referred to a prior
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Alleged Refusals to Meet with the Union; the
January 18 Wage Increases; and the May 1-2 Strike
On November 22, Union Representative Brown
telephoned the Federal mediator to arrange a bargaining
meeting with Respondent . The Mediator relayed the
request to Company Attorney Brown , who on the same
day wrote the mediator:
Mr. Elro Brown's request for another bargaining
session, which you reported to me by telephone, does
not appear to be based on any change of position on his
part from that expressed at the last bargaining session.
As you know , there was a complete impasse between
the parties at the October 7 meeting....
Although substantial time has passed and conditions
have changed in the meantime , the Company's offer of
October 7 as set forth in the letter of October 9, is still
open, as of this moment . If Mr . Brown is prepared to
accept the contract offer which we made on October 7,
or to accept a contract on substantially those terms
except for some few items which he wishes to discuss,
the employer will be willing to meet with him.
However , the position of the parties has been clearly
defined by exhaustive discussion prior to this time, and
I see no useful purpose for another meeting unless Mr.
Brown first indicates his willingness to accept the offer
made or to accept it with the few specific changes
which he defines.
If Mr . Brown is willing to accept such a contract, the
consummation of the negotiations could be
accomplished by mail without the expense and
inconvenience of a meeting. However , if Mr. Brown
insists on a meeting and will give advance assurance of
his changed position as indicated above , we will meet
with him and you at an early mutually convenient date.
On November 27, Union Representative Brown
contacted Company Attorney Brown to arrange a
meeting . Confirming their telephone conversation of that
date, Attorney Brown wrote back:
Confirming our telephone conversation today, my
feelings with regard to your request for another
bargaining session is just as I expressed it to Mr.
Chandler [the Mediator] in my letter to him dated
November 22nd . I understand that Mr. Chandler did
not relay all that I said to him and I am therefore
enclosing a copy of my letter to Mr. Chandler.
I understand from our telephone conversation today,
that the Union has no changed position or new
proposal to submit to the Company. I feel that all of
the positions of the parties have been thoroughly
discussed and understood and that unless there is some
changed position on the part of the Union, that there is
no useful purpose to be served by scheduling another
meeting.
The document which I sen[t] to you with my letter of
October 9, sets forth the proposals by the Company
and by the Union, and I presume that this correctly
states the final status . If there is any inaccuracy in the
statement of the Union's position , please advise me
immediately so that we may give further consideration
as to whether the purpose of another meeting is
(June 1967) wage increase because of which the Union had filed unfair
labor practice charges . The Regional Director declined to issue a complaint
thereon since investigation disclosed that the "wage increase was proposed
to be announced to the employees as a result of the joint effort in
collective bargaining between the Union and the Employer ." The Union's
appeal from this action of the Regional Director was dismissed.
justifiable.
The Union did not respond to this letter.
On January 18, Respondent (through its Attorney
Brown) sent the Union a further letter proposing to
increase the hourly rates of two of its servicemen from
$1.50 to $1.60 in accordance with the Fair Labor
Standards Act, amendment effective February 1, 1968.
Respondent additionally proposed "to make comparable
[10 cent hourly] increases" for four of its mechanics who
at the time were earning more than the required
minimum." The letter concluded:
I trust you have no objections to the granting of
these increases, which we feel must be done on
February 1, but you may desire to announce it as a
jointly agreed action and you may wish to reconsider
our contract offer as amended by these new wage
scales. Our negotiations have been deadlocked since
October 7 and the Company sees no occasion for a
change in its position as stated on that date except to
the extent of this wage adjustment for the shop
personnel occasioned by the impending change in the
Fair Labor Standards Act. We do, however, renew our
last contract offer with this amendment, subject to your
acceptance prior to February 1, 1968. If you have any
changes to make in the Union's position, please advise
me promptly.
Hearing nothing from the Union in response to its
January 18 letter, Respondent on February 1 placed into
effect the wage proposals therein."
On April 1 the Union wrote Respondent, requesting a
meeting "for the purpose of resolving" several new Union
demands, including a 25-cent hourly "general wage
increase" and $2.35-per-load wage demands for
truckdrivers." In addition, the Union requested the
Company to discuss "demands" for a "guarantee of time
and one half of not less than four (4) hours for all
employees working on Saturday," 8 paid holidays, paid
vacations, and paid sick leave. Replying on April 15,
Company Attorney Brown reviewed the history of the
parties' prior positions in the negotiations and of the
Company's February 1 wage increases, and pointed to the
"complete impasse . . . reached . . . at the meeting of
October 7, 1967" on bargaining subjects. He then stated:
Each of your new demands, is either a renewal of prior
demands which you have heretofore withdrawn, or we
have previously rejected more favorable offers from you
on each of the points you now raise.
It does not appear that your new set of demands
represents a good faith effort to narrow the differences
and effectuate a collective bargaining agreement.
Instead, it is increasingly apparent that the differences
"Three had been earning $1.60 and the fourth $2 per hour . Truckdrivers
were excluded from the proposed raises "in view of their recent [October
27] increase."
"Union Representative Brown testified that he did not respond to the
Company's January wage increase proposal because he "wanted the
opportunity of meeting with the employees of both Line Service [a
company competitor , supra) and Transport Company of Texas in order
that we make the same [wage ] demands" on both employers. He also
claimed that his April l letter (to be described) was the Union's
"response" to the Company's January wage proposals , although that letter
makes no reference whatever to Respondent 's January proposals and,
covers other subjects.
"Union Representative Brown testified that the 25-cent general increase
.,was to be added to the last [October 7] proposal by the Union for
settlement of the contract items"; and that the proposed $2.35 per load
represented an "increase over the proposal [the Company] had made
[presumably the $2. 10 per load ] for settlement on October 7, 1967."
TRANSPORT COMPANY OF TEXAS 767
between the Union and the Company are increasing
and are irreconcilable. I see no point in meeting for
further discussion under these circumstances.
At a meeting held with the drivers on May 1, Union
Representative Brown reported on his unsuccessful
attempts - both with the Company and the Federal
Mediator - to arrange a bargaining meeting with
Respondent. Brown asked the 17 to 19 employees present
to decide "whether we were going to abandon any
attempts to bargain with the Company any further, or
whether we would have to strike in order to get the
Company into a meeting." Seventeen drivers voted to
stake. Accordingly, just after 8 a.m. on that day the
picketing of the Company premises was commenced."
Seventeen drivers participated in the strike lasting for 2
days. Respondent continued to operate during the strike
with three nonstriking drivers, all its six mechanics, and
eight new drivers hired on May 1 and 2. On May 3, the
Union made unconditional request for reinstatement of all
strikers. Commencing May 4 Respondent reinstated some,
but not all, strikers.15
Around May 6, Union Representative Brown reported
to the Federal Mediator regarding the strike, requesting
him to arrange a bargaining conference. Suggesting that
he deal directly with Company Attorney Brown, the
Union Representative on May 7, wrote Attorney Brown
that he was "reiterating [his] previous requests for
collective-bargaining conferences which were made on or
about November 22, 1967, and on April 1, 1968." On
May 20, Attorney Brown, after a reviewing of the history
of the negotiations and communications between the
parties, responded that there "seems to be no useful
purpose in scheduling a further bargaining session."
D. Conclusions as to Alleged Section 8(a)(5) and (1)
Violations
1. Refusals to meet and bargain
The basic question here is whether Respondent was
justified in refusing to meet and bargain with the Union
on and after November 22 because the parties had arrived
at an impasse at their last (October 7) bargaining session.
There is, of course, "no fixed definition of an impasse or
deadlock which can be applied mechanically to all factual
situations which arise in the field of industrial bargaining.
Nor is there a rigid formula for assessing so subtle an
issue as the precise time when an impasse occurs." Dallas
General Drivers, Warehousemen and Helpers, Local
Union No. 745, IBT (Empire Terminal Warehouse Co.) v.
N.L.R.B., 355 F.2d 842, 845 (C.A.D.C.), affg. 151 NLRB
1359. Whether or not there is a genuine impasse in a
particular situation turns on the entire congeries of facts
in each case.' 6 As the Board stated in Taft Broadcasting
Co., 163 NLRB No. 55:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations,
the importance of the issue or issues as to which there
"Union Representative Brown testified that the drivers had authorized a
strike as far back as July 1967
"G C. Exh. 9 indicates that 10 striking drivers were never reinstated, but
Exh. 10 indicates that no new drivers were hired after the strikers made
their requests for reinstatement.
"Cf. American Ship Building Co v. N L.R.B, 380 U.S. 300, 303; The
Pierce Governor Company, Inc., 164 NLRB No. 2, affd 394 F 2d 757
(C A D C.), Taft Broadcasting Co, 163 NLRB No. 55, affd 395 F 2d 622
(CAD.C).
is disagreement, the contemporaneous understanding of
the parties as to the state of negotiations, are all
relevant factors to be considered in deciding whether an
impasse in bargaining existed.
Since "the Act does not require final agreement or the
granting of concessions, the parties may reach an impasse
which does not reflect on the good faith of the
bargaining." National Maritime Union of America, 78
NLRB 971, 981. See also N.L.R.B. v. United Clay Mines
Corporation, 219 F.2d 120, 126 (C.A. 6).
Based on the entire record, I find that the parties had
reached a genuine impasse on major issues at their
October 7 meeting. It is undisputed that Respondent had
bargained in good faith at seven bargaining sessions, up to
and through that meeting. Respondent submitted
proposals and counterproposals, exchanged views,
supported its proposals, furnished requested bargaining
information, agreed to some of the Union's demands, and
modified some of its own on important issues such as
wages and union security. It is apparent that both parties
took strong positions on vital issues. Thus, while they had
agreed on basic wage rates by the October 7 meeting, they
were apart on the $100 weekly guarantee clause insisted
upon by the Union. Conflict existed as to unrestricted
control over discharge and discipline of drivers involved in
accidents, as insisted upon by Respondent. Basic
disagreement continued on a management rights clause
and seniority. And, while considerable movement had
occurred toward agreement on fringe benefits, significant
unresolved differences remained on such fringes as
vacations and accident pay. It is clear that by the end of
the October 7 meeting the parties were deadlocked on
essential issues, with neither showing disposition to recede
from basic positions and each rejecting outright the
Federal Mediator's request to submit further concessions.
That the Union itself at that time recognized the futility
of continued negotiations is evidenced by its
announcement at the end of the meeting that it would
resort to economic pressure (i.e., strike) to gain a
contract. Respondent, on the other hand, was prepared to
endure a strike rather than make further concessions. I
find that an impasse in contract negotiations occurred on
October 7.
Contrary to General Counsel's contention, there was no
change in circumstances in November such as to revive
Respondent's duty to meet and bargain with the Union on
demand. There was nothing in the Union's November 22
and 27 meeting requests (made to Respondent directly and
through the Federal mediator) holding out the prospect of
narrowing the prevailing gulf separating the parties. The
Union did not offer to moderate, compromise, or recede
from any of its demands; and Respondent was steadfast in
its positions. Unlike General Counsel, I see nothing
sinister in Respondent's conditioning of a further meeting
on "advance assurance of ... changed position" by the
Union, in view of the existing deadlock. It was up to the
Union, which sought a resumption of bargaining, to make
a move to break the impasse. Cf. N.L.R.B. v. Webb
Furniture Corporation, 366 F.2d 314 (C.A. 4). Prior, in the
circumstances of this case, was there anything improper in
the Company's alternative offer to the Union to sign a
contract on the basis of the terms proposed by
Respondent at the last (October 7) bargaining session,
without another meeting, since the Union was proposing
nothing to warrant further discussion.
Nor did the Union's second (April 1) request for a
meeting evidence any intent on the part of the Union to
budge from its previous bargaining positions. To the
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrary , the Union 's accompanying demands for higher
wages , guaranteed overtime pay, and fringe benefits
represented regressive changes, widening still further the
existing gulf between the parties . Respondent thus
justifiably characterized the Union ' s demands as
"increasing" and less likely of resolution by negotiation."
However , Respondent 's third (May 6) request for a
meeting - 3 days after the strike ended - stands on a
different footing . As the Board stated in West Fork Cut
Glass Company , 90 NLRB 944, 945, modified on other
grounds 188 F.2d 474 (C.A. 4):
It is well settled that, although an impasse in
negotiations has once been reached, a strike effects a
sufficient change of circumstances to break the impasse
[citing cases ]. This is so even where , as here , the union
broke off negotiations and did not affirmatively
indicate , when it sought to reopen negotiations , that it
would recede from any of its previous demands.
See also Jeffery-De Witt Insulator Company, I NLRB
618, 625 , enfd . 91 F.2d 134, 139 (C.A. 4); American
Laundry Machinery Company , 76 NLRB 981, 983, enfd.
174 F.2d 124 (C.A. 6). "Enforcement of the obligation to
bargain collectively is crucial to the statutory scheme and
it will not do for respondent to say that it was relieved of
the duty to bargain collectively because prestrike
bargaining had resulted in an impasse and future
negotiations during the strike would have been futile."
N.L.R.B . v. United States Cold Storage Corporation, 203
F.2d 924 , 928 (C.A. 5). This assumption is all the more
reasonable where , as here , the bargaining request came
after the Union capitulated and abandoned the strike, its
prestrike position has weakened , and a long time (over 7
months) has lapsed since the parties last met. Under such
circumstances the Union "may have been more willing to
make concessions to compromise the matters in dispute."
(ibid.) And "what seemed a rigidity of bargaining
positions before strike action , afterward might well have
become a model of flexible compromise ." United States
Cold Storage Corporation, 96 NLRB 1108, 1109.
"[E]mployer and employees alike [were afforded] an
opportunity to reexplore the situation and to determine
the possibility of an agreement which would be acceptable
to both parties in the light of the then existing
circumstances ." Jeffery-De Witt Insulator Company,
supra , 1 NLRB at 625."
"As found supra, in the interim between the Union 's November and
April meeting request (viz, on February 1) Respondent granted 10-cent
hourly wage increases to two servicemen as required by an amendment to
the Fair Labor Standards Act and like increases to four mechanics already
earning the minimum wage rates . It may be, as General Counsel contends,
that the granting of such wage increases could have broken the impasse,
justifying a union demand for personal meeting and discussion . However,
as found infra. D, 2, although the increases were put into effect on advance
notice to the Union , with an offer to announce them jointly , and with an
invitation for a meeting in the event of change in the Union's prior
bargaining position , the Union requested no bargaining session, nor
objected to the proposed wage increases, nor even responded to
Respondent's letter . Chambers Manufacturing Corporation, 124 NLRB
721, enfd. 278 F 2d 715 (C.A. 5), relied on by General Counsel, is
distinguishable on its facts . Not only was the wage increase in that case
unilateral and unlawful , but it was the only item on which the parties were
deadlocked , there being "a number of noneconomic items as to which there
had been no impasse " Under the circumstances there , the wage impasse
did not justify the Company's refusal to bargain "with respect to other
matters which the Union requested"; and "[t]here was always the
possibility that either the Respondent or the Union might retreat from its
seemingly inflexible position on the wage issue because of concessions
given or taken on noneconomic or other items ." (124 NLRB at 734, 735.)
"I am not unmindful of the fact that the Union 's May 6 letter stated
Under all of the circumstances - including the
intervening strike , the collapse of the strike , and the
"cooling time [that] had elapsed since the negotiations"
(Jeffery-De Witt Insulator, supra , 91 F.2d at 139) - and
taking into account the fundamental statutory objective to
"encourag [e] the practice and procedure of collective
bargaining" (Section 1 of the Act) and to "to promote the
peaceful settlement of industrial disputes by subjecting
labor-management controversies to the mediatory
influence of negotiations ."" I find that Respondent's
refusal to comply with the Union ' s May 7 bargaining
request was unlawful . To be sure , there is no assurance
that the parties would have composed their differences had
they had met in response to the Union ' s request.
Respondent ' s obligation under the statute was only to
enter into negotiations in good faith . "If after such
good-faith bargaining the parties reach an agreement or
an impasse , the requirements of the Act will have been
fulfilled ." United Steelworkers of America, AFL-CIO JH.
K. Porter Company , Inc.] v. N.L.R.B., 389 F . 2d 295, 297
(C.A.D.C .)."Certainly, bargaining negotiations in an effort
to reach an agreement with the Union [would have]
impose[d] no undue burden on Respondent." Webb
Furniture Corporation , 152 NLRB 1526, 1529, enfd. 366
F.2d 314 (C.A. 4).
I conclude that the bargaining impasse , which began on
October 7, was broken by the May strike and that
Respondent' s May 20 refusal to comply with the Union's
request to meet and bargain was violative of Section
8(a)(5) and 8(d) of the Act.
2. The February 1 wage increases
As previously related, on January 18 Respondent
proposed a 10-cent hourly wage increase to two of its
employees in order to meet the new minimum wage
requirements of the Fair Labor Standards Act to take
effect on February 1. It also proposed to grant a
comparable 10-cent increase to four other employees
(already earning in excess of the minimum) in order to
maintain the existing wage differential for other jobs.
These proposed increases exceeded the amounts
Respondent had offered in the negotiations. Contrary to
General Counsel's contention (br. p. 16), however,
Respondent in its January 18 letter to the Union afforded
the Union opportunity to discuss the "proposed
adjustments" (Respondent's Characterization) before
placing them in effect on February 1. Furthermore,
Respondent offered to give the Union full credit for the
contemplated wage raises , inviting it "to announce [them]
as a jointly agreed action." The Union did not see fit to
respond to Respondent's letter. It thereby in effect
acquiesced in the Company's proposed wage changes.
that the Union was "reiterating" its previous requests, including its April
request which enlarged upon the Union 's prior demands. However, this
letter also referred to the Union ' s November request which did not make
increased demands . Reasonably construed , the May 6 letter was no more
than a request to meet , the references to prior bargaining requests being
made for historical purposes only.
"Fibreboard Paper Products Corporation v. N.L.R B, 379 U.S. 203,
211. See also Sec . 201(b) of the Labor-Management Relations Act, 1947,
which expressly states that "the policy of the United States" is "to aid and
encourage employers and the representatives of their employees to reach
and maintain agreements concerning rates of pay, hours , and working
conditions , and to make all reasonable efforts to settle their differences by
mutual agreement reached through conferences and collective bargaining. .
11
TRANSPORT COMPANY OF TEXAS
The instant case, therefore, does not present a situation
such as in N.L.R.B. v. Crompton-Highland Mills, Inc.,
337 U.S. 217, and other cases relied on by General
Counsel, wherein the Board and courts condemned
unilateral wage action without prior notice and
consultation with the bargaining representative as
"manifestily inconsistent with the principle of collective
bargaining." Crompton-Highland Mills, at p. 225. Since
the Union did not avail itself of the opportunity afforded
it to meet for the purpose of discussing the proposed wage
changes, it cannot . be heard to complain that the
Employer's action abruptly. "cut off" the "infinite
opportunities for bargaining that are inherent in an
announced readiness of an employer to increase generally
the pay of its employees" (id. at p. 224).20
I conclude that Respondent's wage action was not
violative of Section 8(a)(5) and (1) of the Act. -
E. Conclusions as to Alleged Section 8(a)(3) and (1)
Violations
As shown, supra, on May 1 the employees voted to
strike in protest of Respondent's refusal to arrange and
set up a bargaining conference with the Union, and on
May 3 the employees abandoned the strike and
unconditionally requested reinstatement. While some of
the strikers were reinstated, others permanently replaced
were not.
As General Counsel recognizes, the right of displaced
strikers to reinstatement turns basically on the question of
whether or not Respondent's refusal to meet with the
Union prior to May I constituted an unfair labor practice.
Having found that it did not, it follows that Respondent's
treatment of the strikers as economic strikers, rather than
unfair labor practice strikers, was not a violation of
Section 8(a)(3) and (1) of the Act. See Shell Oil
Company, 166 NLRB No. 128. Cf. The Little Rock
Downtowner, Inc., 145 NLRB 1286, 1311-12, enfd. 341
F.2d 1020 (C.A. 8), and cases cited therein.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and the Union is a labor organization within the meaning
of the Act.
2. All truck drivers, mechanics and service employees
engaged in the Cameron County, Texas and Mexico
petroleum hauling operations of Respondent at Turning
Basin, Brownsville, Texas, excluding office clerical, service
station attendants, watchmen, guards and supervisors as
defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
3. At all times since December 12, 1966, the Union has
been the exclusive representative of all the employees
within said appropriate unit for purposes of collective
bargaining in respect to wages, rates of pay, hours of
employment, and other terms and conditions of
employment, within the meaning of Section 9(a) of the
Act.
4. By refusing on and after May 20, 1968 to meet and
bargain with the Union as exclusive representative of the
employees in the above-described appropriate unit,
Respondent has engaged in and is engaging in unfair labor
'•Cf. Justesen's Food Stores, Inc., 160 NLRB 687, 688, 693. See also
N.L.R B. v. Benne Katz, 369 U.S. 736, 741-742; N L.R B. v. American
Manufacturing Company of Texas, 351 F.2d 74, 79 (C.A. 5).
769
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
5. Respondent did not violate Section 8(a)(5) and (1) of
the Act by refusing to meet and bargain with the Union in
response to the Union's November 1967 and April 1968
bargaining requests; nor by unlawfully announcing and
putting into effect wage increases on January 18 and
February 1, 1968.
6. Respondent did not violate Section 8(a)(3) and (1) of
the Act by refusing to reinstate unfair labor practice
strikers.
7. The unfair labor practices described in paragraph 4,
supra, are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of
the Act by refusing to meet and bargain with the Union
as the exclusive representative of its employees in an
appropriate unit, I will recommend that Respondent cease
and desist from engaging in such unfair labor practices
and, upon request, bargain collectively with the Union
concerning wages, rates of pay, hours, and other terms
and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the Act, I recommend that
Respondent, Transport Company of Texas, of Corpus
Christi and Brownsville, Texas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing, upon request, to meet and bargain
collectively with Oil, Chemical and Atomic Workers
International Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the unit set
forth in paragraph 3 of the Conclusions of Law herein
with respect to wages, rates of pay, hours of employment,
and other terms and conditions of employment.
(b) In any like or related manner interfering with the
efforts of the above-named labor organization to bargain
collectively on behalf of the employees in the
above-described unit.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, meet and bargain with the
above-named labor organization, as the exclusive
representative of all of its employees in the aforesaid
appropriate unit with respect to wages, rates of pay, hours
of employment, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached.
(b) Post at its place of business in Brownsville, Texas, a
copy of the attached notice marked "Appendix."" Copies
of said notice, to be furnished by the Regional Director
for Region 23, after being signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, where
"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
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices to employees are customarily posted . Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered , defaced , or covered by any other
material.
(c) Notify said Regional Director in writing , within 20
days after receipt of this Decision , what steps have been
taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
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 said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES OF TRANSPORT
COMPANY OF TEXAS
This Notice is posted Pursuant to a Recommended
Order of a Trial Examiner of the National Labor
Relations Board , an Agency of The United States
Government
After a trial at which all sides had the chance to give
evidence , it has been decided that we, Transport Company
of Texas, violated the National Labor Relations Act, as
amended , and we have been ordered to post this notice.
Among the rights which the National Labor Relations
Act gives you, as an employee , is the right to bargain
collectively through a representative of your own
choosing . Accordingly , we hereby assure you that:
WE WILL, upon request, meet and bargain
collectively with Oil, Chemical and Atomic Workers
International Union, AFL-CIO, as your exclusive
representative in the appropriate bargaining unit,
regarding wages, rates of pay, hours of employment,
and sign our name to an agreement containing any
understanding reached. The bargaining unit is:
All truck drivers, mechanics and service employees
engaged in our Cameron County, Texas and Mexico
petroleum hauling operations at Turning Basin,
Brownsville , Texas, but excluding office clerical,
service station attendants , watchmen , guards and
supervisors as defined in the Act.
TRANSPORT COMPANY OF
TEXAS
(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 , 6617 Federal
Office Building , 515 Rusk Avenue , Houston, Texas 77002,
Telephone 713-228-4296.