Webb Pump & Suppy, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1967

167 N.L.R.B. 224 (N.L.R.B. 1967)

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Webb Pump & Supply, Inc. and International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO. Case 21-CA-7292
August 25, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On June 6, 1967, Trial Examiner Eugene K.
Kennedy issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in other unfair labor practices al-
leged in the complaint and recommended dismissal
of those allegations. Thereafter, the Respondent
and the General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs.
The General Counsel also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Webb Pump & Supply, Inc., Escondido,
California,_its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order.'
' Section 2(a) is hereby amended by substituting the words "on forms
provided" for the words "to be furnished "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE K. KENNEDY, Trial Examiner: This proceed-
ing was held in San Diego, California, on January 19 and
20, 1967. The issues involved included an alleged unlaw-
ful failure to bargain and incidents of restraint and coer-
cion of the employees.' Upon consideration of the entire
record, briefs submitted by the General Counsel and
Respondent, and my observation of the demeanor of the
witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF RESPONDENT AND JURISDICTION OF
THE BOARD
Webb Pump & Supply, Inc., a corporation, herein
Respondent, is now and has been at all times material
herein engaged in business as a retail outlet in the sale and
servicing of farm equipment including pumps and irriga-
tion equipment at its place of business located at 1330
Mission Road, Escondido, California. Respondent, in the
normal course and conduct of its business, annually
purchases in excess of $50,000 worth of goods and
materials from suppliers located within the State of
California, which suppliers, in turn, purchased and
received said goods and materials directly from suppliers
located outside the State of California. In the normal
course of its business, Respondent makes gross retail
sales in excess of $500,000. Respondent is now, and at all
material times herein has been, an employer engaged in
commerce and in a business affecting commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein the Union , is a labor or-
ganization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events Relating to the Charge of Unlawful
Refusal to Bargain in Violation of Section 8(a)(5)
On March 14, 1966, the Union was certified as the ex-
clusive bargaining representative of Respondent's em-
ployees in an appropriate unit. The first negotiating meet-
ing between Respondent and the Union took place on
March 29, 1966. Winfield Swett, managing director of the
San Diego Employers Association, was the negotiator for
Respondent. He was given full authority to negotiate the
best contract he could for Respondent. Before com-
mitting Respondent, however, he testified that before the
agreement became final he would submit it to Respondent
for concurrence.
Al Baffone, president and directing business represent-
ative of District Lodge 50 of the Union, was the initial
chief negotiator for the Union.
At this initial meeting, Swett submitted a proposed
labor agreement. The parties also agreed that all interim
agreements on various facets of the agreement would be
tentative pending agreement on the entire contract.
The parties agreed to, and did use, Respondent's initial
proposal as the basic document to use in negotiations.
There were further negotiating meetings held on April
12, 14, 26, and May 5, 1966. Agreement was reached on
13 of Respondent's 20 proposals. No agreement was
reached with respect to wages as well as some other
I The charge was filed by the Union on August 2, 1966, and the com-
plaint issued October 21, 1966.
167 NLRB No. 28
WEBB PUMP & SUPPLY CO. 225
items. The proposals submitted did not contain proposed
classifications or pay scales. Baffone had informed Swett
that the Union intended to make a wage increase demand
and a job classification demand after Baffone had con-
ducted a survey. Respondent, on March 24, 1966, sub-
mitted to the Union in writing the classifications, dates of
hire, and wage rates of all employees. The Union at no
time submitted a proposal to Respondent with respect to
job classifications or wages.
At the April 25, 1966, meeting, Baffone had been
authorized by the employees to call a strike if needed and
stated that certain contract issues were strike issues. Both
Baffone and Swett agreed on May 21, 1966, as the target
date for completing negotiations.
At the negotiating meeting of May 5, 1966, Swett and
Baffone agreed to call in the Federal Mediation and Con-
ciliation Service to take part in future negotiations and
that all subsequent meetings would be arranged by Com-
missioner John Taylor of the Federal Mediation and Con-
ciliation Service. On May 9, 1966, without informing
Respondent the reason, the Union called a strike. Baffone
felt the negotiations were not moving fast enough but he
did not feel any impasse had been reached. Swett be-
lieved that substantial progress had been made in the
negotiations.
On May 24, 1966, Freeman Brown, grand lodge
representative for the Union, had an informal, off-the-
record luncheon conference with Swett. Brown and Swett
had known each other for several years and were on
friendly terms. Brown informed Swett that he was going
to take over instead of Baffone as the principal negotiator
for the Union. There is a conflict in the testimony of
Brown and Swett regarding this off-the-record meeting.
Swett testified that he and Brown agreed to meet with
Federal Mediator Commissioner Taylor to explore the
possibilities of resuming negotiations. Brown testified
that Swett stated the Respondent was getting along fine
and was not interested in further negotiations. The con-
flict loses its significance in view of the fact that the
General Counsel does not allege any unfair labor practice
as occurring prior to June 13, 1966, and also because
Swett did attend a meeting arranged by Commissioner
Taylor on June 13, 1966.
Present at the June 13, 1966, meeting were Commis-
sioner Taylor, Swett, Brown, and Union Representatives
Baffone and Peralta.
Swett's testimony is credited that he only expected to
meet with Brown and Taylor to explore whether there
was any useful purpose in continuing further negotiations
at that time. Supporting this is the fact that Swett did not
bring any notes or records as was customary for a
negotiating session.
At the meeting Brown made specific proposals and
agreed to use Respondent's proposal as a basis for
negotiations . At this meeting, Swett made a comment
which indicated unwillingness about his position with
respect to further negotiations . However, he said that he
would consult with his principals and reply through Com-
missioner Taylor. Later Swett informed Taylor that he
would meet with the Union and attempt to negotiate a
contract.
At this point the charging allegations in the complaint
will be listed to better associate the evidence with the al-
leged violations.
Respondent, on or about June 13, 1966, and at all
times thereafter, did refuse, and continues to refuse,
to bargain collectively in good faith with the Union
as the exclusive collective-bargaining representative
of all the employees in the unit consisting of all
production and maintenance employees including
leadmen, countermen, and outside salesmen em-
ployed by Respondent at 1330 Mission Road,
Escondido, California, excluding all office clerical
employees, professional employees, guards,
watchmen and supervisors as defined by the Act, and
did engage in surface bargaining and bad-faith bar-
gaining, dilatory and evasive tactics, including but
not limited to, the following:
(a) Respondent, through Swett on or about June
13, 1966, refused to meet with the Union to negotiate
a contract.
(b) Respondent, through Swett, on or about June
13, 1966, and continuing, thereafter, withdrew from
agreements with the Union previously arrived at and
revised its proposed contract and interjected into
negotiations new material, all for the purpose of
keeping the parties from reaching an agreement.
(c) Respondent, through Swett, on or about June
13, 1966, and continuing thereafter, refused to bar-
gain with the Union on the subjects of union security
and daily overtime pay.
(d) Respondent, through Swett on or about July
12, 1966, proposed that in any collective-bargaining
contract a provision be included providing that strik-
ing employees would not be eligible for paid vaca-
tions unless and until they returned to work.
(e) Respondent, between July 12, 1966, and Au-
gust 2, 1966, failed and refused to schedule negotia-
tion meetings with the Union , and since on or about
August 2, 1966, has refused to meet with the Union
to negotiate the terms of a collective-bargaining
agreement because the Union filed the instant unfair
labor practice charge.
The next meeting occurred on June 28, 1966. Agree-
ment was reached on some articles of Respondent's basic
proposal. At this meeting , Swett at the outset took the
position that all prior tentative agreements were
withdrawn as that was the usual experience after a strike
and also because the Union had struck without notice and
because the Union had not told him the reason for calling
the strike.
The last bargaining session was held on July 12 with
Commissioner Taylor present along with Brown and
Swett. The subject of wages and classifications was
discussed. Brown's testimony indicated he was waiting
for Swett to provide a list of job classifications and wages.
He expressed surprise at being shown a list of employees
submitted March 24, 1966, to Baffone by the then acting
chief union negotiator which contained names of em-
ployees, dates of hire, and classifications and rates of pay.
At the close of the July 12, 1966 , meeting, it was
agreed that Swett would call Taylor and inform him when
he was available for future meetings . Taylor never called
another meeting nor did the other commissioner in the
area during Taylor's absence. The Union, through
Brown, never asked Swett for another meeting although
Brown had known Swett for years. Brown testified that
on or about August 2, 1966, he called Taylor and asked
him if he had heard from Swett with reference to any
meeting and that Taylor told him he had not. Swett
testified that he called Taylor and, using a desk memoran-
dum as a memory refresher, testified he gave Taylor 4
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days during the 2 weeks following the July 12, 1966,
meeting when he was available for negotiations. This was
further corroborated by a telephone call by Swett con-
firming this from Taylor prior to his testimony.2 It is
found that the failure to initiate further meetings was not
due to Respondent but to the commissioner or the failure
of Brown to contact Swett.
The picketing ended on or about September 7, 1966,
although the Union never formally terminated the strike.
B. Concluding Findings on the Alleged Unlawful
Failure to Bargain Issue
First consideration will be given to the allegation that
Respondent refused to bargain on June 13, 1966. The
evidence establishes that Respondent's representative
Swett attended the meeting without notes or documents
and only for the purpose of discussing whether or not
there was any value in future negotiating meetings. His
statement indicating an unwillingness to bargain was can-
celled out by his agreement to communicate through
Commissioner Taylor his willingness to continue negotia-
tions. Swett's statement, which he admitted, that the
Union had taken strike action and could "strike till hell
freezes over" was made in the context that he felt he had
been double-crossed by Brown. Swett believed that he,
Taylor, and Brown were meeting only to explore whether
in view of the strike situation which the Union had called
without giving notice and without giving a reason, further
negotiations would be of value. When he arrived at the
meeting without records of the past proposals and
negotiations, in addition to Brown he found Baffone with
whom he had a personality conflict and another union
representative. Swett's irritation was increased by
specific proposals made by the union representative when
he had not attended the meeting for that purpose. It is
found that this evidence relating to the meeting of June
13, 1966, does not establish an unlawful failure to bar-
'gain.
The evidence does not establish that Respondent on or
about June 13, 1966, and thereafter withdrew from agree-
ments and interjected new material to keep the parties
from reaching an agreement. The circumstances of the
June 13, 1966, meeting have been described above. The
proposals had been tentative and a strike had occurred
prior to the meeting. No finding of bad-faith bargaining
can be predicated on Swett's position that negotiations
begin afresh, particularly in view of the fact that Freeman
Brown, the union negotiator, had not been present during
the previous bargaining sessions. The Respondent's
proposal about altering the formula for vacation pay arose
out of a situation which occurred after the strike.
Moreover, there is nothing in the record to establish that
Respondent was limited to introducing matters not con-
tained in its original proposal.
The General Counsel also alleges in his complaint that
on or about June 13 and thereafter the Respondent un-
lawfully refused to bargain on the subjects of union
security and overtime pay. Prior to the meeting, Respon-
dent had made an economic concession with respect to
overtime. At the June 13, 1966, meeting, which from the
standpoint of Respondent was not a negotiating meeting,
Swett said Respondent's position on union security and
daily overtime was firm. In the meeting of June 28, 1966,
overtime was discussed. Apparently, neither party raised
the issue in the last meeting of July 12, 1966. The record
does not establish that Respondent refused to negotiate
with respect to union security at the June 28 and July 12,
1966, meetings. As noted previously, the meeting of June
13, 1966, cannot appropriately be regarded as a negotiat-
ing meeting in which Respondent was obligated to
negotiate with respect to specific contractual terms.
Hence, in view of this and the lack of evidence establish-
ing Respondent's refusal to negotiate any issues in the
two subsequent meetings, no refusal to bargain can be
found with respect to this facet of the case.
One of the most salient factors establishing that the
General Counsel did not establish an unlawful failure to
bargain by an adequate measure of proof is that the Union
at no time made a proposal relating to wage rates although
Respondent promptly supplied it with a list of employees
including dates of hire, classifications, and current wages
being paid. The Union struck before Respondent was
given an opportunity to negotiate with respect to the cen-
tral issue involved in an economic strike. The credited
evidence establishes Respondent was willing to continue
negotiations after the strike. The Union failed to contact
Swett directly and request negotiations. Looking at the
evidence on the whole, it fails to establish any unlawful
failure to bargain by an adequate measure of proof. The
General Counsel offered evidence which arguably
creates an inference of 8(a)(5) violations contained in
statements to two pickets, Nesmith and Appell, which
will be discussed below. These statements made in Au-
gust 1966 indicate that Respondent's President Bingham
would never sign a union contract. It is arguable that
although the statement was not communicated to the
union negotiator that it supports a retrospective inference
that Respondent's negotiator previously approached the
negotiations with the same attitude. However, the course
of the negotiations in which Respondent made economic
concessions on overtime and contemplated the final
agreement would incorporate increased wage rates if the
Union ever submitted its wage proposal militates against
this inference. The demeanor of Swett impressed me as
reflecting a witness who was truthful when testifying that
it was his purpose to negotiate the best possible agree-
ment for his client Adding to his credibility that he had a
free hand in negotiating is his admission that at the July
13, 1966, meeting where he felt he had been mislead by
the Union he stated the "Union could strike until hell
freezes over." This statement was uttered from ap-
parently justified resentment, and the fact that negotia-
tions were resumed prevents an unfair labor practice
charge from being founded on it. However, a less candid
witness, sophisticated in labor relations as was Swett,
might have been tempted to deny it as it bordered on a
statement susceptible of establishing an unfair labor prac-
tice. For this reason the statements of Bingham are re-
garded only as violations of Section 8(a)(1). The General
Y The hearsay testimony is'not the sole basis for this finding It ap-
peared trustworthy and probative and was subject to contradiction by
Brown making a similar call to Taylor
WEBB PUMP & SUPPLY CO.
Counsel in his brief makes no claim that these statements
constitute evidence of unlawful refusal to bargain.
C. The 8(a)(1) Violations
On August 3, 1966, there were two pickets and ap-
parently the only employees who had not returned to
work for Respondent or elsewhere. Included in
Bingham's comments to the two pickets, Appell and
Nesmith were "If you want unions and niggers go to San
Diego I will never have this up here. I'll sell out and
move. I'll leave town if you get a union in here I'll never
sign a contract " Both Appell and Nesmith testified in
substance that Bingham made the above comments on
two occasions. Shinn, a supervisory employee, testified
he was present during the last part of the time Bingham
was alleged to have made these statements, on one occa-
sion Bingham denied he had made the statements at-
tributed to him. Mrs. Bingham denied he had made the
damaging statements on the other occasion. Appell's and
Nesmith's testimony seemed more convincing and is
credited, and the comments of Bingham to them con-
stitute unlawful restraint and coercion in violation of Sec-
tion 8(a)(1) of the Act.
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. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed in Section
8(a)(1) of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. The Respondent has not violated Section 8(a)(5) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
THE REMEDY
Having found Respondent engaged in certain unfair
labor practices, it will be recommended that it cease and
desist therefrom and that it take certain affirmative action
as provided in the Recommended Order below.
RECOMMENDED ORDER
Respondent, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Threatening to move or sell its plant and to refuse
to sign a union contract in order to discourage member-
ship or activities on behalf of the Union.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in their rights to
self-organization, to form, join, or assist the Union or any
other labor organization.
2. Take the following affirmative action in order to ef-
fectuate the policies of the Act:
227
(a) Post at its plant in Escondido, California, copies of
the attached notice marked "Appendix."3 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 21, after being duly signed by a managing represent-
ative, shall be posted by it 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 the Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify said Regional Director, in wnting, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.4
IT IS RECOMMENDED that the allegations of the com-
plaint alleging unlawful refusal to bargain be dismissed.
3In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals 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 Respon-
dent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT threaten to move our plant or sell it
or state we will never sign a union contract.
WE WILL NOT in any like or related manner inter-
fere with the rights of our employees guaranteed by
Section 7 of the Act.
Dated By
WEBB PUMP & SUPPLY, INC.
(Employer)
(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, 849 South
Broadway, Los Angeles, California 90014, Telephone
688-5229.
310-5410-70-16