Walker Co.

National Labor Relations Board - Board Decisions

Jun 29, 1970

183 N.L.R.B. 1322 (N.L.R.B. 1970)

1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walker Company and Chicago Truck Drivers,
Chauffeurs , and Helpers Union of Chicago and
Vicinity (Independent). Cases 13-CA-9271-1
and 13-CA-9271-2
June 29, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On January 7, 1970, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and Respondent
filed a brief in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision and the entire record in
these cases, including the exceptions and briefs,
and finds merit in the General Counsel's excep-
tions. Accordingly, the Board adopts the Trial Ex-
aminer 's factual findings to the extent consistent
herewith, but does not adopt his conclusions and
recommendations.
The essential facts in these cases are as follows:
Charles Geyer and his son, Pete Geyer, were em-
ployed by Respondent as truckdriver and helper,
respectively, and made deliveries to customers, in
Respondent's truck, of furniture sold in Respon-
dent's retail home furnishing store. On a number of
occasions Charles had requested a pay raise for
himself and his son, but the requests were refused.
As a result, Charles joined the Charging Union on
July 28, 1969, and Pete on the next day, to obtain
higher wages. On the latter date, July 29, Union
Representatives Bernard and Keegan visited
Respondent President Miller, and Bernard in-
formed Miller that they represented the Geyers
' The facts set forth with respect to this July 29 meeting represent a
synthesis of the testimony of Miller and the testimony of Bernard , as cor-
roborated by Keegan, which differ in some detail but not in any real sub-
stance The Trial Examiner does not make any credibility resolutions as to
the minor discrepancies between the two versions , but sets forth both ver-
sions and apparently relies on a synthesis of both versions , as we do
2 The Trial Examiner points to the facts that for some time in the past the
who had just joined the Union. Bernard presented
Miller with a proposed contract and requested that
Miller have his attorney examine it and sign it.
Miller refused to take the contract, saying he was
not interested in any union or contract. Upon
further urging by Bernard not to flatly refuse to
"acknowledge" the Union and to take the matter
up with the Respondent's directors because Miller
said he had no attorney, Miller finally took the
proposed contract and promised to let the Union
know on the following Monday what was decided,
with Bernard asking Miller not to do anything
about the Geyers until then. While Miller testified
that there was nothing said by the union representa-
tives to lead him to believe that the proposed con-
tract was negotiable, Bernard credibly testified
without contradiction that he never told Miller the
proposed contract was not negotiable.' On the next
day, Wednesday, July 30, Miller asked the Geyers if
they had signed union cards, to which each replied
that he had. Miller then said, "Well, I am sorry you
did that," adding, according to the credited
testimony of both Geyers, "You are in trouble." On
Saturday, August 2, Miller discharged the Geyers,
and, according to their credited testimony, told
them: "You brought this all on yourselves by sig-
ning those cards and it's too bad"; "We could have
gotten along fine, but you brought it on yourselves,
you forced me to do it, I have got to go into this
union thing now, and I have to go into shipping
everything out, and we will just sell the truck, get
rid of it and that is it"; "I don't know where you got
hold of those fellows, they are nothing but gang-
sters." On the following Monday, Miller advised
Bernard that the Union's proposed contract was too
costly, that Respondent had discharged the Geyers,
and that Respondent was going to sell the truck and
subcontract the delivery work which had been per-
formed by the Geyers. Respondent sold the truck,
subcontracted the Geyers' delivery work, and has
had no further dealing with the Union.
The Trial Examiner found that Respondent's
discharge of the Geyers, its subcontracting of their
work, and its refusal to recognize or bargain with
the Union were not violative of Section 8(a)(3) or
(5) on the grounds that such action was primarily
motivated by economic reasons,' and that this case
is controlled by Textile Workers Union v. Darlington
Manufacturing Co., 380 U.S. 263, and A. C. Rochat
Company, 163 NLRB 421.3 The Trial Examiner
delivery service performed by the Geyers had been found to be costly, and
the Union's proposed contract would make it even more costly
3 Applying Darlington and Rochat to the instant case , the Trial Examiner
found no antiunion motive for Respondent 's conduct except as a direct in-
cident of its "economic " reasons therefor , and no purpose to "chill"
unionism elsewhere in Respondent 's establishment
183 NLRB No. 136
WALKER COMPANY 1323
found further that the single inquisitory act with
respect to the Geyers was not unlawful interroga-
tion under the Struksnes case .4 We disagree.
It is clear, and we find, contrary to the Trial Ex-
aminer , that Respondent discharged Charles and
Pete Geyer and subcontracted their work, because
they had joined the Union, in violation of Section
8(a)(3); and that by such conduct, and Respon-
dent's refusal to recognize the Union and bargain
with it over the Union's proposed contract 5 and
Respondent's failure to bargain with the Union over
the contemplated subcontracting, Respondent re-
jected the collective-bargaining principle, in viola-
tion of Section 8(a)(5).1 It is also clear, and we find
further, contrary to the Trial Examiner, that
Respondent's interrogation of Charles and Pete
Geyer as to whether they had joined the Union was
a violation of Section 8(a)(1), because, assuming
that this was a "polling " situation , Respondent did
not comply with the requirements of the Struksnes
case.7
CONCLUSIONS OF LAW
1. Chicago Truck Drivers, Chauffeurs, and Hel-
pers Union of Chicago and Vicinity (Independent)
is a labor organization within the meaning of the
Act.
2. Respondent's delivery drivers and helpers, ex-
cluding all other employees, professional em-
ployees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.'
3. At all times since July 29, 1969, the Union
has been the exclusive bargaining representative of
the employees in the unit described above for the
purposes of collective bargaining.9
4. By unilaterally contracting its delivery work
on August 4, 1969, without bargaining with the
Union, Respondent violated Section 8(a)(5) and
(1) of the Act.
5. Respondent since on or about August 4, 1969,
and at all times thereafter , refused and has con-
tinued to refuse to bargain collectively with the
Union in violation of Section 8(a)(5) and (1) of the
Act.
6. By discriminatorily discharging Charles Geyer
and Pete Geyer on August 2, 1969, Respondent
violated Section 8(a)(3) and (1) of the Act.
7. By coercively interrogating its employees con-
cerning their union membership and activities,
Respondent violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain affir-
mative action necessary to effectuate the policies of
the Act.
We have found that Respondent subcontracted
its delivery operation and discharged its delivery
employees, because they joined the Union and
authorized the Union to bargain collectively on
their behalf. Accordingly, we shall order that the
Respondent reestablish that operation and reinstate
its delivery employees.10 We shall also award them
backpay based on the earnings which they normally
would have received from the date of their
discharge to the date of Respondent's offer of rein-
statement , less any net interim earnings , which shall
be computed on a quarterly basis, in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289,
with interest at the rate of 6 percent annum as set
forth in Isis Plumbing & Heating Co., 138 NLRB
716.
' Struksnes Construction Co , Inc , 165 NLRB 1062
' The Union's demand that Respondent sign the proposed contract, even
if backed up by the threat of picketing testified to by Miller, did not
preclude negotiation on the proposed contract See Brown Transport Corp ,
140 NLRB 954 , 956, 957
6 See Adkins Transfer Company, Inc, 109 NLRB 956, Brown-Dunkin
Company, Inc, 125 NLRB 1379, The R C Mahon Company, 118 NLRB
1537, J M Lassing, et al, dlbla Consumers Gasoline Station , 126 NLRB
1041, Jays Foods, Inc, 129 NLRB 690, Brown Transport Corp, 140 NLRB
954 Fibreboard Paper Products Corp v N L R B, 379 U S 203 See also
Metromedia , Inc (KLAC ), 182 NLRB 202, where the Board recently reaf-
firmed the fundamental principle that an employer 's discharge of its em-
ployees, and refusal to bargain with a union , for the asserted "economic"
reason that dealing with the union would be more costly , violates Section
8(a)(3) and (5) The Trial Examiner was also in error in applying Darling-
ton to this case . See Textile Workers Union Darlington Manufacturing Co ,
supra at 272, 273, fn 16, where the Supreme Court equated the antiunion
subcontracting of part of an employer's operation , as here, with a "ru-
naway" shop , and distinguished the two from the closing and discon-
tinuance of part of an operation which was involved there Darlington and
Rochat hold only that an employer may permanently close and discontinue a
part of its operations even for antiunion reasons ( provided that it is not
done to "chill " unionization in other parts of an employer 's operations),
whereas Fibreboard and previous Board decisions cited above hold that an
employer may not subcontract and thus c'ntinue in effect part of its opera-
tions for antiunion reasons, as was done here Finally, we note that the Trial
Examiner, at sec IV, E, 2d par , of his Decision , impliedly concedes that
the discharge of the Geyers and the subcontracting of their work was at
least partly motivated by a desire to thwart the Union, but erroneously
finds, in effect , that such a discharge is not violative of Section 8(a)(3)
See, e g , Town & Country Mfg Co , Inc v NLRB , 316 F 2d 846, 847
(C A 5), N L R B v Great Eastern Color Lithographic Corp, 309 F 2d
352, 355 (C A 2), cert denied 373 U S 950
' Struksnes Construction Co , Inc , supra inter alia, Respondent not only
did not give the Geyers assurances against reprisal , but on the contrary im-
pliedly threatened them with reprisal, after they answered that they had
joined the Union , by telling them Respondent was sorry they did that and
they were "in trouble " This was a single mquisitory act, but it was directed
against all employees in the unit
' The Geyers, the only driver and helper employed at the time of the de-
mand for recognition , spent about 5 percent of their time loading the truck
at the store , and the remaining 95 percent delivering the merchandise to
customers There is no history of collective bargaining , and no union seeks
to represent them in a storewide unit Accordingly, they may be
represented in a separate unit J L Brandeis & Sons, Inc , 142 NLRB 825
As stated above, the only two employees in the unit , Charles and Pete
Geyer, both joined the Union and authorized it to represent them , on July
28 and 29, 1969, respectively
"See Brown Transport Corp, 140 NLRB 954, Trey Packing, Inc , 172
NLRB No 42
427-258 O-LT - 74 - 85
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have further found that Respondent refused
to recognize the Union and bargain with it over the
Union's proposed contract, in violation of Section
8(a)(5). As we have decided to order resumption
of the delivery operation and reinstatement of the
delivery employees, we shall order that Respondent
bargain collectively with the Union as the exclusive
bargaining representative of its employees in the
appropriate unit , and embody any understanding
reached in a signed agreement."
We have also found that Respondent violated
Section 8(a)(5) by unilaterally subcontracting its
delivery operation without bargaining with the
Union over its decision to do so. We shall order
that Respondent cease and desist from making such
unilateral changes in the terms and conditions of
employment of the delivery employees without first
bargaining with their lawful collective- bargaining
representatives.
ORDER
Upon the entire record in these cases, and pur-
suant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
Walker Company, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with
Chicago Truck Drivers, Chauffeurs, and Helpers
Union of Chicago and Vicinity (Independent) as
the exclusive bargaining representative of the
Respondent's delivery drivers and helpers, exclud-
ing all other employees, professional employees,
guards, and supervisors as defined in the Act; and
unilaterally subcontracting their work, or otherwise
changing their wages, hours, and other terms and
conditions of employment, without bargaining with
the above-named Union or any other union which
they may select as their exclusive representative.
(b) Discouraging membership in Chicago Truck
Drivers, Chauffeurs, and Helpers Union of Chicago
and Vicinity (Independent), or any other organiza-
tion of its employees, by discharging or otherwise
discriminating against them in regard to their hire
or tenure of employment of any other term or con-
dition of employment.
(c) Coercively interrogating its employees con-
cerning their union membership.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form labor
organizations, to join or assist Chicago Truck
Drivers, Chauffeurs, and Helpers Union of Chicago
and Vicinity (Independent), or any other labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from engaging in such activities.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Reestablish its delivery operation and offer
to Charles Geyer and Pete Geyer immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, and make each of them
whole for any loss of earnings he may have suffered
as a result of the discrimination against him in the
manner provided in the section of this Decision and
Order entitled "The Remedy."
(b) Upon request, bargain collectively with
Chicago Truck Drivers, Chauffeurs, and Helpers
Union of Chicago and Vicinity (Independent) as
the exclusive bargaining representative of all the
employees in the appropriate unit, and embody any
understanding reached in a signed agreement.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due and the rights of reinstate-
ment under the terms of this Order.
(d) Post at its store in Chicago, Illinois , copies of
the attached notice marked "Appendix. 1112 Copies
of said notice, on forms provided by the Regional
Director for Region 13, after being duly 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, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to in-
sure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 13,
in writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
" Respondent 's unfair labor practices destroyed the Union's majority
and made a fair election impossible, and therefore clearly warrant a bar-
gaining order under the Supreme Court decision in N L R B v Gissel
Packing Co , 395 U S 575
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words an the notice reading " Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
WALKER COMPANY
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Chicago Truck Drivers, Chauffeurs, and
Helpers Union of Chicago and Vicinity (Inde-
pendent) as the exclusive bargaining represen-
tative of all employees in the following bar-
gaining unit:
All delivery drivers and helpers, excluding
all other employees, professional em-
ployees, guards, and supervisors as defined
in the Act.
WE WILL NOT unilaterally subcontract our
delivery work, or otherwise make changes in
the wages, hours, and other terms and condi-
tions of employment for the employees in the
above-stated appropriate unit, without bargain-
ing with Chicago Truck Drivers, Chauffeurs,
and Helpers Union of Chicago and Vicinity
(Independent), or any other labor organization
which they may select as their exclusive bar-
gaining representative.
WE WILL NOT- discourage membership in
Chicago Truck Drivers, Chauffeurs, and Hel-
pers Union of Chicago and Vicinity (Indepen-
dent), or any other labor organization of our
employees, by discharging them, or in any
other manner discriminating in regard to their
hire or tenure of employment of any term or
condition of employment.
WE WILL NOT coercively interrogate our em-
ployees concerning their union membership or
other union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join or assist said
union, or any other labor organization, to bar-
gain collectively through representatives of
their own choosing, or to engage in other con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
WE WILL bargain, upon request, with the
above-named Union as your exclusive
representative in the appropriate unit with
respect to wages, hours, and other terms and
1325
conditions of employment, and, if an un-
derstanding is reached, embody it in a signed
agreement.
WE WILL offer to Charles Geyer and Pete
Geyer immediate and full reinstatement to
their former jobs or, if those jobs no longer ex-
ist, to substatially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make each of them whole for
any loss of pay he may have suffered as a result
of our discrimination against him.
All our employees are free to become, remain, or
to refrain from becoming or remaining, members in
good standing of any labor organization.
WALKER COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 881 U. S. Courthouse and Federal
Office Building, 219 South Dearborn Street,
Chicago, Illinois 60604, Telephone 312-353-7597.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a
charge and an amendment thereto filed on Sep-
tember 8 and 10, 1969, respectively, by Chicago
Truck Drivers, Chauffeurs, and Helpers Union of
Chicago and Vicinity (Independent) against Walker
Company, Respondent herein, the Regional
Director for Region 13 of the National Labor Rela-
tions Board, herein referred to as the Board, issued
a complaint on behalf of the General Counsel of
the Board alleging violations of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act,
as amended (29 U.S.C., Sec. 151, et seq.), herein
called the Act. In its duly filed answer, Respondent,
while admitting certain allegations of the com-
plaint, denied the commission of any unfair labor
practice.
Pursuant to notice, a trial was held before me in
Chicago, Illinois, where all parties were present,
were represented by counsel, and were afforded full
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opportunity to be heard, present oral argument,
and file briefs with me. Briefs were fled on
December 1, 1969.
Upon consideration of the entire record, includ-
ing the briefs filed with me, and specifically upon
my observation of each witness appearing before
me,' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Walker Company is an Illinois corporation with
its office and principal place of business located in
Oak Park, Illinois , where it maintains a retail store
and is there engaged in the retail sale of household
furniture and hardware items. During the last calen-
dar year it derived a gross revenue in excess of
$500,000 from the sale of goods at its Oak Park
store. During the same annual period, in the course
and conduct of its business operations, it has
purchased and caused to be shipped directly to its
Oak Park, Illinois, store from points outside the
State of Illinois goods and materials valued in ex-
cess of $50,000. Upon the foregoing facts admitted
by Respondent, I conclude and find it to be an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Chicago Truck Drivers, Chauffeurs and Helpers
Union of Chicago and Vicinity (Independent), the
Charging Union herein, has been shown by credible
evidence in the record to be an organization ac-
cepting employees to membership and bargaining
collectively in their behalf with their respective em-
ployers. I accordingly conclude and find it to be a
labor organization within the meaning of Section
2(5) of the Act.
III. THE ISSUE
The right of an employer to dispose of a part of
its business and terminate employees as a con-
sequence for economic reasons in the face of a
union 's request for recognition and bargaining.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
FACTS
A. The Company's Delivery Operations
The Respondent, a retail home furnishing store,
served the Chicago suburban area and provided a
delivery service which forms the basis of this
proceeding. Although the delivery of heavier and
larger pieces of furniture was contracted to Likata
Moving and Storage Co., the remainder of the
deliveries had been made with the Company's own
truck over an extensive suburban area. According
to a survey made by the Company in 1968, its
delivery services were found to be unprofitable. As
a consequence, in February 1969 United Parcel
Service (UPS) was awarded the delivery contract
for all except packages addressed to the nearby
Oak Park and River Forest communities. These
latter deliveries continued to be made in the com-
pany truck which, with the company name
prominently displayed, was deemed to be of com-
pensating prestige value and worth the loss incurred
in maintaining the vehicle and retaining its driver
and helper. Thus it was determined by Respondent
that the UPS cost per package was 67 cents con-
trasted with $2 per package delivered by its own
truck and driver.
Charles R. Geyer had been employed as
truckdriver since September 1965 and his son, Pete
Geyer, as helper since March 1969. At the time of
termination Charles Geyer's hourly pay was $2.25
and Pete Geyer's was $1.75. On a number of occa-
sions prior to mid-July 1969 Charles Geyer had
requested a raise in pay for both himself and his
son. On each occasion, however, his request was
refused; Company President Edward C. Miller on
one occasion detailing the high cost of deliveries
and the excessive amount of overtime involved.
Finally, in mid-July when overtime costs did not
decline, despite the increased use of United Parcel
Service, Miller directed Geyer to return the truck
to the store by 5:30 every day, regardless of delive-
ries still to be made, and, should he be able to make
his deliveries and return before 5:30 on any day he
would still be paid his full 8-hour day, thus assuring
the crew a full 40-hour week.
B. The Union's Appearance
Shortly after Miller rejected the Geyers' request
for a raise they visited the Union's office and met
with Union Representative Bernard Bernard. After
Bernard fully explained the benefits to be derived
from union membership and assured them that he
would speak to their Employer in their behalf to
obtain higher wages both employees signed union
application cards. Charles Geyer signed his card on
July 28, 1969, and Pete Geyer signed his on the fol-
lowing day, July 29. Each credibly testified that he
read the contents of the card before signing it.
On the same day that Pete Geyer signed his
union application, Union Representative Bernard in
the company of Field Representative Michael
Keegan visited with President Miller at his office.
After introducing themselves Bernard informed
Miller that they were representing the Geyers who
had just joined the Union. When Miller asked to
see the cards, Bernard refused. Instead he
presented Miller with what was referred to as a
"booklet," saying, to quote Miller's account of the
incident, "Have your attorney examine this and
'See Buho p and Malco, Inc, d/bla Walter's, 159 NLRB 1159,1161
WALKER COMPANY 1327
sign it within 48 hours. "2 When Miller protested,
saying he was not interested in a union, one of the
representatives told him, again according to Miller,
that if he did not sign they would picket his
establishment.3 Miller, reconsidering his earlier
outright rejection stated, "All right, I'll take the
form, but I can't let you know within 48 hours. We
don't have our meeting until Saturday," referring to
the weekly meeting of the Company's directors.
Whereupon the union representatives agreed to a
call on Monday and left. Miller called Bernard on
the following Monday, August 4, and informed him
that upon receiving the contract the Company
found it to be too costly and the only thing left for
them to do was to turn all the deliveries over to
United Parcel and Likata. When asked by Bernard
what had happened to the driver and helper Miller
replied that they had been terminated; the Geyers
receiving 12 weeks' severance pay and the truck
was to be sold. The Company has since disposed of
the truck.
C. The Termination of Charles and Pete Geyer
After the Geyers had joined the Union and its
representatives , Bernard and Keegan, had sought
recognition and bargaining in their behalf, the
Company reacted promptly. On the next day, Wed-
nesday , July 30, Miller sought out the Geyers and
asked both Charles and Pete if they had signed
union cards , to which each replied that he had.
Miller then said , " Well, I am sorry you did that."
Adding , according to the credited testimony of
both Geyers, " You are in trouble."
Nothing appears to have transpired between
Miller and the Geyers from that Wednesday until
Saturday , August 2, that date on which Miller had
told the union people he would consult with the
Company 's directors (supra ). When Charles and
Pete Geyer returned with the truck on late Satur-
day afternoon , August 2, Miller was waiting for
them . Miller testified that he told Geyer he was
sorry that " this" had happened but the Company
was left with no alternative but to sell the truck and
contract all the deliveries to United Parcel and
Likata . Charles Geyer , corroborated by Pete Geyer,
credibly described the incident thus: When he
checked in for the day the cashier told Geyer that
Miller wanted to see him and Pete before they left.
When Geyer appeared Miller asked if he had
parked the truck for the day. When Geyer told him
that he had not Miller told him to put it in the
garage and he would meet them there. Miller was
waiting for them in the garage and as Geyer and his
son got out of the truck Miller inquired if they had
taken their personal belongings from the truck.
Then, according to Geyer he stated:
"Okay, now, I'm sorry about this," he says,
"I don't know what to tell you,"he says, "You
brought this all on yourselves by signing those
cards and it's too bad," he says. "We could
have gotten along fine, but you brought it on
yourselves, you forced me to do it, I have got
to go into this union thing now, and I have to
go into shipping everything out, and we will
just sell the truck, get rid of it, and that is it."
Then he said, "It's all over, and he says,
"I've got to-this envelope for,you Charlie and
there is a statement in there which shows
everything, what it is now."
We had just received our paycheck at the
end of the month, but we had the first and
second, two days, and he added that to a check
which he called-what do they call that check
when-when it's the end of the job?
TRIAL EXAMINER: Severance pay?
He says, "That is for two weeks' pay, $90, at
two and a quarter a week-an hour-he says,
"$90-$180," he says, "plus your two days,
and then I have deducted some money that you
owe us on a TV that you still owe a balance
on.,,
"It's all in there," he says, "you can check it
out," so-well, it was, it was okay.
Then I said-now, as I said,-he said, "I'm
sorry about it, and Pete, here's yours," he says.
"Two days or whatever you have coming over
the first of the month."
Before we got through, I says, "Well, Mr.
Miller, you know, I don't like it either because
I asked a couple of times for a little better pay
and you said it couldn't be done and I said well
it's hard to make it on that kind of pay but you
said yes, but you know Charlie you brought it
' Miller 's account of this meeting differs from Bernard 's and Keegan's
Thus Bernard 's version , as corroborated by Keegan
I told him , well, I said, "Before you flatly refuse to acknowledge us,"
I said , "would you please take this contract ," a copy of which I was
holding in my hand , " present it to your attorney , because we have
signed cards from both the driver and the helper, and have your attor-
ney read it over "
"We don't have an attorney ," he said I said, "Well, who do you
consult whenever there is a major decision to be made9" He says,
"Well, we have a board that meets on Saturdays ," I believe this was
on a Tuesday , and I said , "Well, before you again flatly refuse to
accept this," I said, "take it and consult with your board members
and notify me on the following as to what you decide."
Again , he refused to accept this, he said , " Well, no, I don't see any
real reason for this," he said, "because, as far as I'm concerned," he
said , " Charlie Geyer and Pete Geyer are not very good employees any
way."
He led me to believe the only reason that he kept Pete Geyer was as
a favor to Charlie Geyer, and I said , "What do you mean, they are not
good employees9"
I said , "They done their work," and he said , "Yes, they have done
their work," and I said, "What 's seems to be the thing9 " He said, "We
can't afford your rates " I said, "You haven 't even looked at the
book " He said , " I know we can't afford your rates, we can 't afford to,
your rates are bad news," and I said , "Well, berore you flatly refuse,
again , I am asking you to please take a copy of this and consult with
your board or whoever you consult with, and let me know on Monday
what you decide "
He took a copy of the contract from me and I believe at this time, he
mentioned that he would talk to his people and then they would let me
know and I said, "Whatever you decide , don't do anything with these
employees until you talk with me Monday "
Bernard made no reference to picketing in his testimony Keegan
testified that he did not say anything about picketing
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on yourselves, I have no choice, you brought
me into this situation in the first place, I don't
know where you ever got hold of them fellows
anyway," he said, "My God," he didn't say
God-but whatever-"I don't know where you
got hold of these fellows, they are nothing but
gangsters ," and I said I didn't know they were
that bad and he said-I said, "These are union
men." No more was said about it.
I said, "Mr. Miller, would there be a chance
of a recommendation for another job?" And he
says, "Well, Charlie, I feel this way, I know you
are honest and I can recommend you as being
very honest, but I don't think I could go any
further than that because I do think you are
too slow and you know anyplace you go for a
job they are going to expect somebody who
can move faster than you.'
I had never had that before, there had been
compliments about my work, but the pay
couldn't be raised, the profit, the profit margin
wasn 't there.
Both Charles and Pete Geyer left Respondent's
premises and have not since been employed there.
Respondent, after notifying the Union of its action,
as described above (sec. IV, B, supra), has had no
further dealing with it.
D. The Nature of the Union's Request
When Field Representative Bernard requested
recognition as the driver's and helper's bargaining
representative, he presented Miller with a docu-
ment which purported to be the Union's proposal
for a collective agreement. Because it is Respon-
dent's contention that this document forms its basis
for the action it thereafter took (selling the truck
and terminating the Geyers) a consideration of it
would be appropriate at this time.
The document in question consists of 28 printed
pages and bore a covering page on which was in-
cluded the following inscription:
CHICAGO TRUCKDRIVERS
CHAUFFEURS AND HELPERS UNION
OF CHICAGO AND VICINITY
(INDEPENDENT)
WAGE AGREEMENT
COVERING
EMPLOYEES OF PRIVATE CARRIERS
OF PROPERTY BY MOTOR VEHICLE
for the period from
APRIL 1, 1967 THROUGH MARCH 31, 1970
On the last page of the document was inscribed the
facsimile signature of the Union's executive
director. Space was provided on the same page for
the signatures of representatives of the employer.
Union Representative Bernard quite properly
identified this document as a contract. Thus when
he testified to his conversation with President
Miller he testified that he asked him "whether they
would sign a contract with us which, of course, is
what I had."
By way of further describing the document, it in-
cluded the usual recognition clause; provision for
dues checkoff; a union shop; specific vacation and
holiday provisions; seniority rights; layoff pro-
cedures; safety rules; health, welfare, and pen-
sion funds; grievance procedures; and a specific
wage scale.
President Miller credibly testified that when
Bernard presented him with this document he
asked him to sign it, thus corroborating Bernard's
own testimony. There is no testimony that either
Bernard or Keegan offered to negotiate concerning
matters contained in the document that they agreed
to. In fact Miller testified that he understood the
contrary. When questioned at the hearing concern-
ing this Bernard testified that he did not consider
the wages printed in the document as being negoti-
able. When asked if he was prepared to negotiate
with this employer, his reply was, "I couldn't." The
executive director, whose signature already appears
on the document, was the only one who could
make any changes and Bernard had no idea what
had been done in such matters in the past. Bernard
further testified that no consideration had been
given to the Company's financial situation in
presenting it with the contract, and that the wages
printed in the contract were deemed to be
minimums.
Finally there is uncontradicted testimony by the
same official that there are 1,500 similar contracts
with the Union outstanding in the Chicago area,
that he knows of none in which the wage scale is
less than that printed in the booklet presented the
Company, nor does he know of any instance in
which the Union's executive director intervened to
alter the terms of the printed agreement.
E. Analysis and Conclusions
At the outset it must be understood that
economic considerations were at the base of
Respondent's delivery problems for some time in
the past. Thus a year ago it surveyed the situation,
found an unprofitable operation, and sought to
remedy it by subcontracting a portion to United
Parcel. Subsequent experience disclosed only
minimal improvement, with loss still incurred with
the company-owned truck. In this regard the record
is replete with testimony concerning efforts to save
money in the operation involving the Geyers, in-
cluding the curtailment of their overtime and the
refusal of wage increases. This, it must be
emphasized, was the economic situation when the
Union requested recognition coupled with a request
for acceptance of an agreement that on its face
would double the wage cost of the delivery service.
Against such a background as I have detailed
above it cannot be said that the resulting termina-
tion of the driver and helper, the subcontracting to
United Parcel, and the selling of the truck was sole-
ly motivated by a desire to thwart the Union. On
the contrary the evidence clearly establishes and I
WALKER COMPANY 1329
conclude and find that it was the economic con-
siderations which I have detailed above that sup-
plied Respondent its primary motivation to take the
action it took.
The United States Supreme Court has held that it
is not an unfair labor practice for an employer to
shut down part of its business permanently for an-
tiunion reasons unless the partial closing was
motivated by a purpose to "chill unionism" in any
of the remaining parts of its business.4 In the instant
proceeding it has not, in the first instance, been
established that the delivery service was shut down
for "antiunion reasons," except as a direct incident
of conceded economic necessity. Hence, we have
not, as in Darlington, an expressed antiunion mo-
tive. Nor, as required by Darlington, do I find a pur-
pose to "chill" unionism elsewhere in the em-
ployer's establishment. Indeed, there is no evidence
whatever that the incident herein ever came to the
attention of store employees in any context except
the economic one that had been plaguing the
delivery service for so long. Moreover, the em-
ployees of both Likata and United Parcel were
known to be union members and President Miller
so reminded the union representatives when he re-
jected their request for recognition and bargaining.
Under the foregoing circumstances, therefore,
and as a consequence of the findings and conclu-
sions I have made, I find this case to be controlled
by the Darlington decision and by the Board's in-
terpretation of that decision in A. C. Rochat Com-
pany.5 I accordingly conclude and find that the ter-
mination of Charles and Pete Geyer was not a
violation of Section 8(a)(3) of the Act, and that
following their termination, its refusal, and the con-
sequent evaporation of the unit to recognize and
negotiate with the Union was not a violation of Sec-
tion 8(a)(5).6
One remaining facet of this case must be con-
sidered: namely, the allegation that Respondent un-
lawfully interrogated the Geyers. It will be recalled
that when the union representatives requested
recognition they told Respondent President Miller
they had the signed applications in their possession,
but upon request refused to show them. Under such
circumstances the employer would be expected to
do the next best thing short of going to an election,
and that would be to inquire of the only two em-
ployees in the unit if they had signed applications. I
am not persuaded that this single inquisitory act
constitutes the unlawful interference, restraint, or
coercion contemplated by the Act and under all the
circumstances herein would not find such to be a
violation of Section 8(a)(1).'
RECOMMENDED ORDER
It is recommended that the complaint in this
matter be dismissed in its entirety.
4 Textile Workers Union v Darlington Manufacturing Co, 380 U S 263,
A C Rochat Company, 163 NLRB 421
5 163 NLRB 421
e In the posture of the case which places no obligation to bargain with the
Union I find it unnecessary to consider Respondent 's defense to its refusal
to negotiate based on the Union's predetermined and fixed demands and its
"take it or leave it " approach
' Cf Struksnes Construction Co , Inc, 165 NLRB 1062