Wells Dairies Cooperative

National Labor Relations Board - Board Decisions

Mar 29, 1955

111 N.L.R.B. 1192 (N.L.R.B. 1955)

1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WELLS DAIRIES COOPERATIVE and RETAIL, WHOLESALE AND DEPART-
MENT STORE UNION, CIO. Case No. 10-CA -2010. March 29, 1955
Decision and Order
On December 29, 1954, Trial Examiner Charles L. Ferguson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is engaging in certain unfair labor
practices, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby directs that the Respondent, Wells Dairies Cooperative,
and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to recognize and bargain collectively with Retail,
Wholesale and Department Store Union, CIO, as the exclusive repre-
sentative of all its production and maintenance employees including
shipping and delivery employees, laboratory employees, and truck-
drivers, but excluding office clerical, technical, and professional em-
ployees, retail store employees, driver-salesmen and their helpers,
guards, and supervisors.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : -
(a) Upon request, recognize and bargain collectively with Retail,
Wholesale and Department Store Union, CIO, as the exclusive repre-
sentative of the employees in the bargaining unit herein above de-
scribed, with respect to wages, rates of pay, hours of employment, and
other conditions of employment, and, in the event that an understand-
ing is reached, embody such understanding in a signed statement.
111 NLRB No. 169.
WELLS DAIRIES COOPERATIVE 1193
(b) Post at its plant at Columbus, Georgia, copies of the notice
attached hereto and marked "Appendix A." 1 Copies of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by a representative of the Respondent, be
posted by it for a period of sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to the employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by other material.
(c) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
I In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL recognize and bargain collectively upon request with
Retail, Wholesale and Department Store Union, CIO, as the ex-
clusive representative of all the employees in the bargaining unit
described below with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and if an under-
standing is reached, embody such understanding in a written and
signed agreement. The bargaining unit is :
All production and maintenance employees at our Columbus,
Georgia, plant, including shipping and delivery employees,
laboratory employees, and the truckdrivers, but excluding
office- clericals, technical, and professional employees, retail
store employees, driver-salesmen and their helpers, guards,
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed to them by Section 7 of the Act.
WELLS DAIRIES COOPERATIVE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed by Retail, Wholesale and Department Store Union, CIO,
herein called the Union, the General Counsel of the National Labor Relations Board,
herein called the General Counsel and the Board, respectively, by the Regional Di-
rector for the Tenth Region (Atlanta, Georgia), issued a complaint, dated July 23,
1954, against Wells Dairies Cooperative, herein called the Respondent, and also
referred to as the Company, alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Section
8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act,
61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that, "On or about
June 25, 1954, and at all times thereafter, Respondent refused and has continued to
refuse, to bargain collectively with the Union as the exclusive representative of all
of the employees" in an appropriate unit.
By its answer the Respondent admits the allegations of the complaint that the
Union was duly certified by the Board as the exclusive collective-bargaining repre-
sentative of all the employees in the unit described in the complaint but denies that on
or about June 25, 1954, and thereafter it refused to bargain collectively with the
Union, as alleged in the complaint, and further answering avers that by reason of
the following "facts" it is "under no duty to bargain with the Union": (a) The
Union "has not" bargained "in good faith"; (b) "A genuine impasse has been reached
in the bargaining between" it and the Union; (c) "The Union has been repudiated
by a majority of the employees in the unit . . as their representative for the pur-
poses of collective bargaining"; and therefore (d) "The Union no longer represents
a majority of the employees in the unit."
Pursuant to notice, a hearing was held at Columbus, Georgia, on October 4, 1954,
before me, Charles L. Ferguson, the Trial Examiner, designated by the Chief Trial
Examiner to conduct same . All parties appeared at said hearing and were accorded
full opportunity to be heard, examine and cross-examine witnesses, introduce evi-
dence relevant to the issues, argue orally at the conclusion of the evidence, and file
briefs and proposed findings of fact and conclusions of law. Oral argument was
waived, and Respondent has filed a brief which has been examined and considered.
The General Counsel did not submit a brief.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Wells Dairies Cooperative, is "a nonprofit cooperative association,
incorporated under the laws of Georgia," and "is engaged in the business of proc-
essing, selling, and distributing milk produced by farmers who are members" of the
association. "Its main plant is located at Columbus, Georgia, near the Alabama
line. It has a branch distribution plant 60 miles distant at Thomaston, Georgia."'
The complaint herein alleges, and the answer admits, that Respondent is engaged in
the sale of dairy products at,wholesale and retail, and that "in the,course•and con-
duct of its business operations during the past year, which period is representative
of all times material herein," Respondent "sold and shipped dairy- products valued
in excess of $3,000,000, of which more than $200,000 worth were sold and shipped
directly to customers outside the State of Georgia. During the same period, Re-
spondent purchased materials and supplies valued in excess of $300,000 directly from
points outside the State of Georgia."
I find that Respondent is, and at all times herein material was, engaged in com-
merce within the meaning of the Act, and that the value of its products, "more than
$200,000," annually sold and shipped directly to customers outside the State of
Georgia is such as classifies this proceeding as one in which the Board exercises its
jurisdiction. (See Wells Dairies Cooperative, 107 NLRB 1445.)
In relation to jurisdiction, the attorneys for Respondent moved "to dismiss the com-
plaint . . . on the ground that the" Board "does not have jurisdiction," contending
the Company's business is largely local since that "proportion of" its "business done in
Alabama . . . is within an area of 100 miles of Columbus, Georgia," and further
that the "employees in the unit" involved "are agricultural employees." It suffices
'Decision and Direction of Election of the Board in Case No 10-RC-2598, March 3,
1954, 107 NLRB 1445
WELLS DAIRIES COOPERATIVE 1195
to point out, that, as Respondent admits, these very same contentions were advanced
by Respondent and were overruled by the Board in its decision and order in Wells
Dairies Cooperative, 107 NLRB 1445, the representation case involving these same
parties, and on the authority of the Board's rulings in that case the motion herein
based upon the same contentions there made must be, and hereby is, overruled.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that Retail, Wholesale and
Department Store Union, CIO, is a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On November 6, 1953, the Union filed a petition for certification of representatives
with the Tenth Regional Office of the Board and same was docketed under Case No.
10-RC-2598.
After a hearing the Board, on March 3, 1954, issued its Decision and Direction of
Election (107 NLRB 1445). At the election conducted pursuant to the Board's deci-
sion and direction, 36 votes were cast for the Union, and 26 against, with 8 ballots
challenged.
On March 24, 1954, the Regional Director for the Tenth Region, pursuant to au-
thority vested in him by the Board, certified the Retail, Wholesale and Department
Store Union, CIO, as the exclusive representative of "all production and maintenance
employees at Respondent's Columbus, Georgia, plant, including shipping and deliv-
ery employees, laboratory employees, and the truckdrivers, but excluding office cler-
icals, technical and professional employees, retail store employees, driver -salesmen
and their helpers, guards, and supervisors as defined in the Act."
John J. Schulter, "Southern Regional Director of the Retail, Wholesale and De-
partment Store Union, CIO," was the sole witness called by the General Counsel.
Based upon my observation of Schulter as a witness , and an analysis of his testi-
mony as a whole, as well as all the testimony in the case, I credit his testimony
generally as to what occurred, and was said and done in the course of the various
bargaining sessions and other negotiations between representatives of the Company
and representatives of the Union, which followed the certification of the Union as
the exclusive bargaining representative of all employees in the above-defined unit.
Tom B. Slade, an attorney with the law firm representing the Respondent Company,
who was the principal representative and spokesman for the Company in all of the
negotiations with the Union following its certification, as aforesaid, was the sole
witness on behalf of the Company concerning same. The same considerations men-
tioned in my evaluation of Schulter's testimony apply with equal force to that of
Slade which I also credit generally. Slight, although I do not deem it material or
conclusive, conflict is to be found between the testimony of Schulter and that of Slade,
which I have resolved.
All dates hereinafter mentioned , except as otherwise noted, were in year 1954.
A. The bargaining meetings
1. April 16 meeting
Shortly after the certification of the Union, Schulter got in touch with the Com-
pany concerning a date for a bargaining conference, and it was agreed to meet on
April 16. This meeting, as were all subsequent meetings between the representa-
tives of the Company and the Union, was held at the office of Swift, Pease, David-
son, and Chapman, the law firm representing the Company, with Tom B. Slade and
Lee H. Henkel, attorneys associated with said firm, present representing the Com-
pany throughout the negotiations. As noted, Slade seems to have been the prin-
cipal spokesman on behalf of the Company. At this April 16 meeting J. Q. Davidson,
a member of said law firm, and Mose C. Cooper, general manager of the Company
were also present. Representing the Union at this meeting were, Schulter and John
Scott, an international representative of the Union, and a committee of three em-
ployees Lawrence, Savell, and Bredlove.
At this April 16 session, which lasted "from 7 to 8 hours," the Union "presented
proposals." Apparently no proposals of any kind were submitted by the Company.
"Included in the proposals" submitted by the union representatives were provisions
for a "check-off" and "a union shop." At this meeting the "discussion centered
around the union shop provision" which the representatives of the Company "pointed
out would be in violation of the Georgia law." Schulter "stated that he recognized
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that was true," but suggested that "some reference" to a union shop "be included"
in the contract and "so worded" that "the spirit of the contract" would be "that all
members" of the unit "be members of the union." The representatives of the Com-
pany declared that "would also be in violation of the Georgia law" and that the
Company "would not be a party to any such means of getting around the statute."
To what extent the checkoff proposal was discussed is not disclosed, however, at this
time the representatives of the Company did "express opposition to a check-off pro-
vision" in the contract.
Schulter made only the merest mention of a meeting on April 17, which, if Schulter
is correct as to that date, may have been but a continuation of the April 16 meet-
ing. Slade made no reference to any meeting on April 17, and placed the second
and the next meeting after April 16 as that held on May 12.
2. Meeting of May 12
This meeting was "first set for May 10" but, at Schulter's request, "was postponed
to May 12." At this meeting Slade said: "At that session the Company presented
counterproposals on all issues . . . that had been raised by the Union's proposals.
We took the entire day in going over those proposals." With one exception, Slade's
testimony did not disclose anything concerning the discussion of any specific pro-
posal submitted by the Company at this meeting. He testified in detail about the
Company's proposal that a no-strike clause be incorporated in the contract with
a provision requiring the Union to furnish "an indemnity bond indemnifying the
Company from damage which might result on the part of the Union" in the event
of a strike. Slade said Schulter's "attitude toward this" proposal "was that the
International Union would not be a party" to such a provision in the contract, "and
that the local union could not afford such a bond."
In this connection Slade testified that "At each and every bargaining session there-
after, the bond issue was brought up 2 and at one subsequent session the Company
representatives pointed out that they had been in contact with . . . representatives
of several companies and were advised that the Retail, Wholesale and Department
Store Union, CIO . . . would be favorably considered by a bonding company for
the issuance of an indemnity bond of the type urged by the Company in the pro-
posal," and that Schulter was so advised and "requested . . . to make his own
investigation with the bonding company, and ascertain for himself whether or not
that was true." Continuing Slade said: "Although we had later bargaining sessions
after that date and asked Mr. Schulter about the bond, he indicated no effort was
made to comply with the Company' s request with respect to the bond."
I am confused about when and how, and in what order these various discussions,
as related by Slade, involving Schulter, and concerning a bond, occurred. As I
understand Slade's testimony, the Company's proposals were first submitted at the
second or May 12 bargaining session , and he related in detail the discussion at the
time concerning the Company's no-strike clause proposal with an indemnity bond.
Slade next said that "at one subsequent session" the Company's representatives told
Schulter that they had contacted "representatives of several bonding companies,"
and were advised that "a bonding company" would "favorably" consider the Union
for a bond "of the type urged" by the Company's "proposal," and that it was then
suggested that Schulter make "his own investigation with the bonding company."
As I understand the testimony, the only session "subsequent" to the May 12 session,
when the bond proposal was first submitted, at which Schulter was present, was
on June 7, so that must have been the session subsequent to May 12 at which the last
mentioned events occurred, but Slade said that "after that date . . . we had bar-
gaining sessions and asked Mr. Schulter about the bond" and "he [Schulter] indi-
cated no effort was made to comply with the Company's request with respect to the
bond." As noted, the only bargaining session after May 12 at which Schulter was
present was that of June 7, and Slade's chronology of events appears to be incon-
sistent with that fact. I have pointed out this discrepancy merely as an illustration
of the fallability of memory about precisely when, and what may have been said
and done in the course of 3 or 4 conferences, each extending over a period of many
hours and at which various and numerous issues were discussed.
Concerning this meeting of May 12, Schuller said that at that meeting the Com-
pany "positively" rejected the "check-off provisions previously (April 16 meeting)
requested by the Union," and offered a proposal "that . . . no check-off" provision
2 After this session of May 12 there were 3 bargaining sessions , on 3 consecutive days,
June 7, 8, and , 9, apparently , and in . effect , being, 1• bargaining 'session 1 extending,or con-
tinuing over parts of 3 consecutive days.
WELLS DAIRIES COOPERATIVE 1197
be included in the contract, which the Union in turn "categorically" rejected. Other
than this reference to the checkoff proposals Schulter's testimony about this meeting
related, as did Slade's, to the Company's proposal for a nonstrike clause and an
indemnifying bond. Schulter said the union representatives took the position that
the Union "would not agree to the Company's request to post a bond of $250,000
insuring the Company against any strikes" and that he "stated that such a demand
was arbitrary and unreasonable and . for all practical purposes could not be
carried out." Schulter further said that he recalled that at "a subsequent session,"
which must have been that of June 7, Slade "made some vague reference" to the
effect that the Company "had contacted surety companies and found they would
be interested in issuing such a bond" to the Union. Continuing, Schulter said: "The
matter was discussed and we figured the pure arithmetic of the proposition 3 and
found that, assuming the premium on the bond was a matter of five percent of the
total amount asked by the Company, such a premium was in excess of the amount
of dues that we would collect in one year from the employees," and that Slade was
informed of these conclusions, although when or under what circumstances he was
so informed is not stated.
3. Meetings on June 7, 8, and 9
The next and third bargaining session convened on June 7 and continued for "three
days in a row," June 7, 8, and 9. A reading of the transcript of the testimony may
leave an impression that perhaps there may have been a bargaining session or sessions
between the May 12 session and that commencing on June 7, but Schulter said posi-
tively that the next session after the May 12 meeting, which Slade positively said was
the second meeting, was that commencing on June 7, and the only meetings any-
where referred to by Slade were those of April 16, May 12, and June 7, 8, and 9,
and apparently those were the only meetings held at which any bargaining occurred.
Slade testified that one of the proposals submitted by the Union at the April 16 meet-
ing was for a union-shop provision in the contract, the testimony concerning which
has heretofore been reviewed, and that the Union "repeated that proposal in the
second meeting," but "receded on the demands" for "the union shop clause, after
the second meeting [May 12]." Assuming that Slade did not intend to say and did
not mean that the Union receded from its union-shop demand at or during the sec-
ond meeting [May 12] then such rescission, if after the May 12 meeting, must have
been made on June 7, for Slade seems to say that the Union did not recede from any
of its demands or make any concessions on June 8 and 9.
Schulter was present and conducted the negotiations on behalf of the Union at the
June 7 meeting, but did not attend the sessions on June 8 and 9 as will later be
explained. Schulter said that at this June 7 meeting "we discussed various specific
points of our proposals and the Company's proposals" and agreement was arrived
at "on some specific clauses . . . pending general agreement on all the terms of the
contract." He noted, and there is no disagreement about this, that throughout the
negotiations, it was "explicitly understood . . . that there would be no general con-
tract . . . until all the issues in the contract had been agreed upon." Slade stated
that: "Prior to the sessions of June 8 and 9, at which Mr. Schulter was not present,
we had come to virtual agreement and actual agreement on some of the clauses"
of the proposed contract, and that "during the course of the negotiations the Union
did recede on a number of proposals." Since, according to Slade, the Union did not
recede on anything at the sessions held on June 8 and 9, it follows that such tentative
or actual agreement on specific clauses arrived at prior to June 8, and the rescissions
and concessions by the Union "during the course of the negotiations . . . on a number
of [its] proposals," all occurred during and at the sessions of April 16, May 12, and
June 7. There is no mention that the Company ever at any time receded, either in
whole or in part, from any of its proposals or positions.
On the morning of June 8, Schulter, who had been called to Atlanta, and was to
leave for that city that afternoon, went to the office of the law firm representing
the Company, heretofore named, and with which Slade and Henkel were associated,
where, by courtesy of the law firm, he "utilized" the services of one of their secre-
taries and an office "to dictate and have typed a proposal by the Union" covering
,.all points that had been under discussion," and "about noon time that day" delivered
copies of same to his fellow union representative, Scott, and to Slade, and thereupon
8 I construe this to mean the union representatives or union officers "discussed" the mat-
ter among themselves and arrived at the conclusion stated also that Schulter may well
have been referring , and I take it he was, to a discussion of the bond 'matter on this occa-
sion between the union representatives and company representatives.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
left for Atlanta , after designating Scott to represent him (Schulter ) and the Union
at the bargaining session that afternoon , which had been continued from the previous
day, June 7, and present the Union's proposals prepared by Schulter, as aforesaid.
At 2 p. in. on the afternoon of June 8, with the Union's proposals prepared by
Schulter that morning under consideration, Slade and Scott resumed the negotiations.
Presumably others were also present, who they were is not mentioned. Slade said
that he found that in "this new proposal which Mr. Schulter had prepared that morn-
ing" he (Schulter) "had so rewritten" certain "clauses . . . as to omit points" upon
which "virtual" or "actual" agreement had previously been arrived at during either
the session of May 12 or that of June 7, the preceding day. Items mentioned by
Slade as being covered by either "virtual" or "actual" agreements previously arrived
at, which Slade said were either omitted or modified in Schulter's "new proposal,"
were, certain "factors" which the Company had insisted should be taken into consid-
eration in the matter of seniority, promotion, transfer, and layoff; "the holiday pro-
posal . . . previously agreed to by the Union"; a reservation in the "grievance pro-
cedure clause"; and certain "points" in the "management rights clause itself." Slade
called these omissions and modifications, which he said he found in Schulter's "new
proposal," to Scott's "attention." Slade said, "There was some question in my mind
whether" Schulter "had inadvertently omitted some provisions that we had agreed
upon," that Scott "expressed a lack of knowledge as to whether" such was intentional
on part of Schulter, and "that was one of the points that he was to check with by
telephone with Mr. Schulter."
In the course of the negotiations on the afternoon of June 8, Scott announced, and
reasserted on June 9, that he had "no authority to alter in anyway proposals" made by
Schulter. The proposal which Schulter had drawn up that morning, before his de-
parture for Atlanta, and had left with Scott and Slade, also renewed the Union's de-
mand for a checkoff clause. Apparently, as Slade stated it, "at every session from
April 16, through the session of June 9, the check-off clause was repeatedly urged
by the Union," and "opposition to such clause on the part of the Company was ex-
pressed at each and every session ." In this, connection Slade said of the session, with
Scott , on the afternoon of June 8, that Scott "in presenting on behalf of the Union
the most recent proposals of the Union, which had been typed in our office that
morning [by Schulter], . made the statement that no contract would be entered
into without the check-off clause . . . when that statement was made by Mr. Scott,
I observed that apparently an impasse had been reached on that issue, and made the
suggestion that he contact Mr. Schulter, since he [Scott] said he had no authority to
vary from the proposals as typed at Mr. Schulter's dictation, with Mr. Schulter not
being there. He [Scott] said he would contact" Schulter by telephone, and "We
ended our session [ of June 8]."
As was the case in reference to the June 8 meeting, the testimony of Slade as to
what was said and done at the June 9 meeting , the last bargaining session held,
constitutes the whole of the testimony about that meeting. Scott was not called
as a witness . Thus as related by Slade, and , as has been stated , his testimony is
credited, at the June 9 meeting told Slade that "he [Scott] had contacted" Schulter
by telephone the night before" and that Schulter "had said that the changes" he
[Schulter] had made in the Union's proposals "were intentional" and "that there
was no unintentional omissions ." Continuing his recital , in what seems to be the
order of events on that occasion , Slade told Scott that , "It looks like we can't get
anywhere without Mr. Schulter present . . . you talked to him on the telephone.
Are you auhorized to make any changes whatever in several clauses, including the
check-off clause?" In reply to this inquiry, Scott said he had "no authority to recede
in anyway from anything" contained in Schulter's last proposals, "and repeated the
position of the Union, which had been the same throughout, that as far as the check-
off clause they would not enter into a contract" which did not contain such a clause.
Slade then pointed out that, "On all prior occasions" the company representatives
had said they were "opposed to a check -off clause," and had given their reasons,
and that "It appears we have reached an impasse ," whereupon Scott said , "apparently
we had." Slade then said that they "were getting no where" because Scott "had no
authority to recede" from or make "changes in" any of Schulter 's proposals , and that
all they could do was "to try to get hold of Mr. Schulter" and "have a session"
with him "present ," with all of which Scott "agreed ." Scott then "agreed" to "get
in touch with" Schulter , and "telephone" Slade "about a later session ." Scott called
Slade at his home "a night or two after" June 9, and told Slade that "he had talked
with" Schulter and that "the earliest date" Schulter "could meet would be June 25"
and "asked if that would be agreeable" and Slade said it would be. In that way and
at that time , June 25 was "fixed" as the "date for another meeting ," at which
WELLS DAIRIES COOPERATIVE 1199
Schulter could be present, as arranged for and agreed upon by Slade and Scott at
their June 9 meeting.
It appears that the matters heretofore mentioned do not constitute the whole of
the discussion between Scott and Slade on June 8 and 9. Slade said, "a good deal
of time was spent in trying to classify the jobs of the various employees, and to
group them together in a logical order. . . . We did discuss on June 8 and 9 these
questions about wages." Apparently Scott was authorized to negotiate on this matter
of classification. It is not said whether these classifications were finally settled on
those dates.
B. Was, as Respondent claims, a bona fide impasse reached which excused Re-
spondent after June 9, from bargaining or continuing negotiations at "another
meeting" which it had been agreed to hold on June 25 for that purpose?
There was no discussion or bargaining of any kind between the parties concerning
the terms of a contract after the June 9 meeting, and for reasons, and due to cir-
cumstances, presently related, no bargaining session was held, and no bargaining,
or discussions of that kind, occurred on June 25, although, pursuant to the agreement
between Slade and Scott on June 9, ratified and confirmed in their telephone conver-
sation of June 10 or 11, to resume and continue negotiations at "another meeting"
to be held on June 25, with Schulter present, Schulter and Scott, and the employees
Bredlove and Savell, representing the Union, presented themselves on that date and
for that purpose at the designated hour and place of meeting, the office of the law
firm representing the Respondent Company.
Respondent now claims that regardless of its desire and purpose to do so clearly
expressed, and its agreement, to continue negotiations at "another meeting" at which
Schulter could be present, fixed, pursuant to such agreement for June 25, it was justi-
fied at any time after June 9, in withdrawing from and terminating the negotiations,
and in refusing and failing to continue same, and to abandon and not participate
in the previously agreed upon bargaining session scheduled for June 25, because a
genuine impasse was reached on June 9.
Prior to the June 8 meeting there had been but three bargaining sessions, April
16, May 12, and June 7. Schulter, who alone was authorized to make final agree-
ments for the Union, attended all of these sessions and spoke for the Union at each.
The checkoff, to which apparently the claim that an impasse on June 9 relates, was
among the proposals submitted by the Union at the first meeting on April 16, at which
time it was opposed by the Company. At the second meeting, on May 12, the Com-
pany for the first time submitted proposals and counterproposals. One of the Com-
pany's counterproposals was that no checkoff provision be included in the contract.
Schulter rejected this and reaffirmed the Union's demand for a checkoff. Schulter
said, and I have no reason to doubt that, based upon his evaluation of the situation
as of that time, he reasonably held such a belief, that at this second meeting, on
May 12, he "believed there was some indication on the part of the Company's
attorneys that they might give the check-off some consideration. Such indication
was inferential and was contained in some remarks made by the [Company]
attorneys during the bargaining session"; that "the position" Slade "took at the second
session [May 12] differed materially from the position" he "took the first session
relative to the check-off"; and "there was an indication during the second session"
[May 12] on the part of Slade, "that the Company reserved" its "position on the
matter of the check-off." Apparently these indications, which Schulter mentions
continued or at least were not dispelled, through the June 7 meeting which Schulter
attended for Schulter seems, after that meeting, to have still retained the belief
that the Company might yet give favorable consideration to the Union's request
for a checkoff provision in the contract, and again included it in the revised, written,
proposals which he drafted on the morning of June 8.
There is no indication in the testimony of either Schulter or Slade that the checkoff
clause was discussed by them to any extent at the June 7 meeting. A general state-
ment in Slade's testimony that, "at every session from April 16, through the session
of June 9, the check-off clause was repeatedly urged by the Union," and "opposition
to such clause on the part of the Company was expressed at each and every session,"
is the only thing of a specific nature indicating that Schulter and Slade may have
discussed the checkoff clause at the June 7 meeting. Slade gave no specific testimony
about that meeting, and all that Schulter said about it was that, "we discussed the
various specific points" of the contract, "our proposals and the Company's pro-
posals" and "I believe we agreed on some specific clauses-pending general agree-
ment on all the terms in the contract." Apparently on June 7 neither Schulter nor
Slade considered an impasse had been reached on the checkoff issue or any other
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue under discussion, nor does the testimony disclose that anything of that kind
was said on that occasion . Schulter said, and nothing is found in the evidence to
the contrary and his testimony in this respect is credited, that none of the Company's
representatives "ever" stated to him, at any of the meetings which he attended,
April 16, May 12, and June 7, or, as his statement indicates, at any time, that "they
[the Company's representatives] believed an impasse had been reached" and that
by reason thereof "further bargaining was useless."
Among the proposals submitted by the Company at the May 12 meeting was a
demand for a no-strike clause and an indemnifying bond in the amount of $250,000,
to which demand, so far as appears, it consistently adhered, and from which it never
receded, either in whole or in part. As stated by Schulter, and to much the same
effect was Slade's testimony, heretofore quoted, in the course of the bargaining ses-
sions through June 7, i. e., those of April 16, May 12, and June 7, "some clauses"
of the contract "were agreed to," and "temporary" or "tentative" agreement had
been "arrived at . . . on other clauses," and "agreement generally" reached "on
at least six or seven items . with possible minor differences in wording" to be
"worked out," and Schulter added that he did not ever feel "that an impasse, as such,
existed." While in the three bargaining sessions which had occurred through June 7
there had been substantial progress in the negotiations there remained a number of
issues yet unresolved, included among which were the checkoff urged by the Union
and the Company's unmodified insistence on a no-strike clause secured by a $250,000
indemnifying bond. Thus there remained after the three bargaining sessions an area
affording material for discussion, exploration, modifications, and give-and-take bar-
gaining. It will be remembered too that to this point, through June 7, the Union
had admittedly receded "on a number of proposals." No concessions, recessions, or
modifications at any time on the part of the Company are mentioned, although
Schulter, at one point did say that there were points which Slade "opposed one day
and reconciled the following day," yet Schulter did not consider or recognize "that an
impasse as such" making further bargaining useless or futile existed, and no opinion
to that effect was expressed by any of the representatives of the Company, and Slade
said that "throughout all of these sessions 4 the Company never took the position
that it would never recede from any position, and never took the position that it was
not open for further discussion on any points raised." Along this line, Schulter said
that while "there were some adamant -9 positions" on the part of both the Union
and management, "if an impasse" be considered "a state of mind which can not be
surmounted," then "we never arrived at that stage," and that in his conduct of col-
lective bargaining on the part of the Union, over a long period of years, "the posi-
tion taken" at one time "however strong and determined can be changed" at the next
or some subsequent meeting, and "we could take a position today on one issue,
which at the particular moment in the technique of bargaining is adamant, or at the
moment unalterable, which can become alterable the following day if a right ap-
proach is utilized." It is normally understood by the parties to the collective bargain-
ing, that "what you may disagree on today you can agree on tomorrow, if a proper
formula can be found." In this connection Schulter further stated that, in his opinion,
the history of the bargaining in this instance, in the course of three sessions which
he attended, April 16, May 12, and June 7, demonstrates how differences may, by
such continued negotiations be "reconciled."
It will be borne in mind that at the meetings on the afternoons of June 8 and June 9,
Scott had no authority to recede from or modify in any way the revised proposals,
on the part of the Union, prepared and submitted by Schulter the morning of June
8, for consideration during his absence, and that Slade was so informed, at the after-
noon session of June 8, and well knew such to be the situation, and, as stated by
Slade, "a good deal of time" was spent by him and Scott, at the session of June 8 and
9, "in trying to classify the jobs of the various employees," concerning which pre-
sumably Scott had some authority to negotiate. Apparently some occasion arose or
existed which made it necessary that Schulter leave for Atlanta on the afternoon of
June 8, at least no question is made about that, nor is it so much as suggested that
in doing so he was actuated by any dilatory motive or intended thereby to compro-
mise or stymie the continuance of negotiations in the future.
At the session on the afternoon of June 8, Scott made an observation to the effect
that the Union would not enter into contract "without the check-off clause," which
the Company still opposed, whereupon Slade "observed that apparently an impasse
4 This refers to the sessions through June 9.
5 Schulter explained that he used the word adamant in the sense of "a strong, deter-
mined attitude toward a particular point in the contract," with "for the time being each
holding fast on certain issues."
WELLS DAIRIES COOPERATIVE 1201
has been reached on that issue," and requested Scott to contact Schulter and Scott
said he would do so by telephone . Slade had previously , during that session , requested
Scott "to check with " Schulter by telephone on certain other "points."
On June 9 Scott reported to Slade that on the night before he had contacted
Schulter by telephone . Slade said that Scott reported that certain omissions Slade
said he found in the revised proposals drafted by Schulter on June 8 were inten-
tional on the part of Schulter. Slade then, as appears by his own testimony above
set out , addressing Scott, said , "you talked to him [ Schulter] on the telephone," and,
in that connection , asked Scott if he (Scott ) was "authorized to make any changes
whatever in several clauses, including the check-off clause," 6 and Scott said he was
not. Specifically as to the checkoff clause, Slade said that Scott reaffirmed "the posi-
tion" on that which the Union had maintained "throughout ," whereupon Slade ob-
served that , "It appears we have reached an impasse ," however at the same time
Slade and Scott agreed that they "were getting no where" and could not "get any-
where without" Schulter, because Scott had no authority to bargain on the principal
issues yet outstanding , and that in view of that situation all they could do was "to get
hold of" Schulter "and have a session" with him "present ," and thereupon the nego-
tiations were adjourned to some date which would assure Schulter's attendance. In
a telephone conversation between Scott and Slade an the night of June 10 or 11,
the date for that meeting , which Schulter had previously confirmed , was agreed upon
by Scott and Slade as June 25, but through no fault of the Union, or its representa-
tives, as presently will be related, no bargaining session was held on that date.
I cannot go along with Respondent 's contention that a genuine impasse was reached
on June 9, which rendered future bargaining useless and futile and excused and re-
leased Respondent therefrom after that date. It settles down to no more than this,
that effective bargaining on the principal as yet unresolved issues could not proceed
on June 9,7 because of Scott's lack of authority to bargain on such issues, or, to
put it another way , because of Schulter 's absence , and recognizing this situation
Slade and Scott, with the clear and expressed intent and purpose , at the time, of
continuing the bargaining , adjourned the negotiations to a later date when Schulter
could be present.
Conclusion on Respondent 's Claim that a Genuine Impasse Was Reached
on June 9
It is my opinion that the facts here do not warrant, and would not sustain, a find-
ing that a genuine impasse was reached on June 9 which would legally relieve or
excuse, on that ground, either of the parties in terminating the negotiations, or in
refusing to bargain further after that date, and Respondent's claim in that respect is
disallowed.
C. The petition signed by a majority of the members of the unit repudiating
the Union
On June 18, a petition , directed to the company manager, dated June 17, bearing
the genuine and undisputed signatures of 44 of the then approximately 65 members
of the unit herein involved, and reading, "The undersigned as employees of Wells
Dairies Cooperative do not desire to have the C . I. O. [Union ] as our bargaining
agent," was delivered to the plant superintendent under the circumstances next
related. About 6:30 p. in. of June 18, Plant Superintendent Jesse L. Brannon "was
making a telephone call" in his office , when an employee , Lindburg Barron, "came
in" the office "and laid" this petition on Brannon 's desk and went out. When Bran-
non "completed the telephone call," he "picked the petition up and looked at it,"
and then "called Mr. Henkel [one of the attorneys representing the Company in
this matter] and told him" about the delivery of the petition, "and read it to him
[Henkel ] over the phone . . . and he [Henkel] asked" Brannon "to bring it to him
the next morning" ( Saturday , June 19 ), which Brannon did. So far as appears
by the testimony herein the delivery of the petition to Brannon about 6:30 p. in.,
9 Slade had been informed by Scott on the day before at the June 8 afternoon meeting,
that he ( Scott ) had no authority to recede from, change , or modify any of the proposals
submitted by Schulter . Apparently this inquiry, on June 9, was directed to whether in
the telephone conversation with Schulter the night before he ( Scott) had been given, and
now on June 9 possessed , such authority
I It is recalled , however , that "a good deal of time" on the afternoon of June 8 and on
June 9 was spent by Slade and Scott "in trying to classify the jobs of the various
employees "
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 18, was the first information or knowledge that the Company had that such
a petition existed, or had been circulated and signed by its employees. While
Schulter testified that, on June 25, in a conversation with Slade about this petition
he (Schulter) "accused the Company of bad faith," and said, "we [the Union]
knew that this petition had been circulated on company time by a company em-
ployee, and that the names were so obtained," no proof was offered of that, and
Schulter did not purport to have any personal knowledge to that effect. I find no
probative evidence in this record that the Company had any knowledge of such
petition prior to 6:30 p. in. June 18, as above stated, or that the Company, or any
of its officers, or supervisory personnel, at any time, or in any way, sponsored or
aided or abetted the preparation or circulation of the petition, or so much as had
knowledge of, or anything to do with, such activities on the part of its employees,
and upon this record, this petition must be accepted and treated as the free, voluntary,
and uncoerced, so far as the Company is concerned, act of the 44 employees who
signed same.
Slade who was absent from the city the week of June 13 through 19, returned
Monday evening June 21, and upon reporting to his office the next day, June 22,
for the first time learned of the petition. During that day Slade "discussed the
petition" with Henkel, his associated attorney, and Mose C. Cooper, general manager
of the Company, and then called Scott by telephone. Slade gave this version of his
conversation with Scott, "I told him [Scott] that the Company had received this
petition," and that "We didn't know exactly what to make of it. I didn't know
what the score was, but it appeared to me a majority of the unit were requesting us
not to bargain with the Union any longer. That I would like to investigate it."
Slade stated that thereupon Scott "blew up. He got very mad, and he didn't like
the idea at all, and I said, `All right, I just got it. . . We want to discuss it with
you, and will be glad to let you see it.' He said he didn't care about seeing it. So
I said, `Well, I believe I must investigate the bona fideness of it and see if it is
actually what it purports to be.' "
The implication of Slade's remarks, in this June 22 telephone conversation with
Scott, which caused Scott to get "very mad" and to say that "he [Scott] didn't
like the idea at all" seems to have been that if upon an investigation the signatures
on the petition were found to be genuine that the Company would be disposed to
accede to, or as it later affirmatively did, "honor" the request therein made by the
majority of the employees, as expressed by Slade, "not to bargain with the Union
any longer."
Pursuant to his announced purpose to investigate the genuineness of the signatures
appearing on this petition Slade requested Cooper "to check" same, and at Cooper's
request Brannon , the plant superintendent , compared "the signatures that appear on
the petition with the signatures" in the personnel files of the employees whose names
appeared on the petition, and the signatures on the petition were found to be genuine.
Slade said that after this check was made verifying the signatures on the petition,
"I called Mr. Scott again and told him that I had investigated the bona fideness" of
the petition "and it appeared to be a bona fide petition, and I would be glad to
let him have a copy of it. He said there was nothing to be gained by him talking
with me about it, that we had this scheduled session for June 25, and if I would
just have it present at that time Mr. Schulter would like to see it. I said . I will
have a photostatic copy made to give to Mr. Schulter at that time [June 25]."
1. Events of June 25
On June 25, the date to which the bargaining negotiations had been adjourned,
pursuant to the agreement of Slade and Scott on June 9, confirmed June 10 or 11,
Schulter and Scott, and employees Bredlove and Savell, representing the Union,
went to the office of the law firm with which Slade was associated, designated as the
place of said meeting, and were met there by Slade and Henkel, representing the
Company. For the reasons presently stated no bargaining whatever occurred.
Schulter said that Slade and Henkel did not have with them any of the "papers" or
"files," "which they ordinarily" brought to bargaining sessions. This bit of testi-
mony is undenied and is credited, and is a circumstance in keeping with the con-
clusion I have drawn, and which, I believe, will appear when the whole evidence
about this June 25 meeting is considered, that Slade and Henkel did not come to
this meeting with any intention to bargain or negotiate on contract terms for which
purpose the meeting had been scheduled, and that the Company's decision to
"honor" the petition, as Slade put it, and because of the petition to terminate the
bargaining negotiations, was made prior to the meeting, and this scheduled meeting
was merely utilized to announce same to the Union.
WELLS DAIRIES COOPERATIVE 1203
Schulter said that Slade was the first to say anything, and in that Slade corroborates
Schulter. Relating what occurred Schulter testified:
Mr. Scott and I came in . Mr. Slade said, "We have received a petition
signed by the majority of the employees wherein they disavow the union as
their representative. In view of the petition, we therefore feel no obligation,
on our part to continue the bargaining . with the Union, and we are with-
drawing any offers previously made, and are accepting the petition of the em-
ployees as an indication that they no longer wish to have the Union represent
them. I then said to Mr. Slade, "May I see the petition?" Whereupon, he
showed me a photostatic copy of it. I then asked him if I could have it, and
he said, "Yes, you may." I took the petition, and said, "This is the evidence
that I want." Mr. Slade said, "What do you mean." I said, "We do not con-
sider this petition as valid. It is our contention that the Labor Board has
certified us, and only the Labor Board can decertify us, and that such a petition
has no validity in the law." Mr. Slade said, "Well we think it has." I said,
"We will file charges with the Board for refusal to bargain," and some other
words were said, and we left.
Based upon my observation of the witnesses on the stand, and a careful analysis
of the whole evidence relating to this June 25 meeting, the foregoing version given
by Schulter as to what was said by Slade at that time, concerning the position of
the Company in reference to the petition is credited as being substantially accurate.
Slade did not specifically deny making the statements attributed to him by Schulter
to the effect that the Company was "accepting the petition as an indication that the
employees no longer wish to have the Union represent them," that "in view of the
petition" the Company felt there was "no obligation on" its "part to continue bar-
gaining with the Union," and that it was "withdrawing any offers" it had "previ-
ously made." On the other hand Slade's testimony about what he said, on this
occasion about the petition and announced as the Company's position in reference
to it, while framing his statements in a somewhat different wording, carries pretty
much the same meaning as the language attributed to him by Schulter. Slade's tes-
timony as to what he said, and announced, about this petition and the Company's
position, follows:
I said that this petition appears to us to be genuine, and we have checked it,
checked the signatures, and they appear to be 44 out of approximately 65 .
It appears to us to be genuine and we were going to honor the petition . . . I
said that we were suspending negotiations in view of this petition, and I re-
minded Mr. Scott, that we would be glad to hear any observation they might
have to make. They didn't have anything to say about the petition.
Both Schulter and the General Counsel refer to the events and statements, as above
narrated by Schulter, which preceded the "some other words were said" as being the
"presentation of the petition." Schulter said that while following this so-called "pres-
entation of the petition" some "words were exchanged," and, as set out above,
"some other words were said," nothing was said, at any time, during this brief meet-
ing of June 25, which Schulter said did not last over 5 minutes, and no other or
different estimate was made, "in reference to the issues of collective bargaining"
which had been going on; and that "none of the subjects which had been discussed
previously during the bargaining conferences" were "mentioned in any way at this
meeting." Schulter's testimony to the effect that nothing was said "about" or "in
reference to . . . the issues of the contract itself" is undenied, and is in fact corrobo-
rated by Slade, and is credited. It is not claimed that the resumption of bargaining or
a continuance of the bargaining negotiations was so much as mentioned by either
party.
Schulter further said, and, in my opinion, there is naught in the evidence to war-
rant any conclusion or inference to the contrary, that "On June 25 we [the Union]
were ready to bargain on any and all issues pertaining to the contract," and went
to the office" of Respondent's attorneys, according to the prearrangement, "for the
purpose" of participating in "a bargaining session on the contract issues," but that
they [the union representatives] were met at the outset by Slade's "presentation" of
the petition including Slade's statements and announcements, above set out, to the
effect that because of the petition the Company "would not bargain any longer with
the Union," and that the reason the Union did not try to discuss anything with the
Company, on that date, "about the contract," and "did ask for any conferences after
that date," was because "the nature of" Slade's statements "when we entered his
office" was such as to conclusively indicate that such requests would be "needless and
344056-55-vol 111-77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
useless," and would be denied or refused . At other points in his testimony when
called upon to explain why the Union did not , on June 25 make , and has not since
made, a demand upon the Company to resume bargaining , Schulter said that on
June 25 , Slade "informed us at that meeting that there would be no further meet-
ings ," and that "they felt they had no obligation to continue discussions on this con-
tract," and "were withdrawing any offers previously made because the petition .. .
was an indication that the employees no longer wished to have the Union represent
them," and "we accepted" these statements and announcements "of Mr . Slade on
that date as being final and conclusive that they would not bargain any longer with
the Union." That such was a correct evaluation of the Company's declared position
is, in my opinion, borne out and sustained not only by Schulter's credited testimony
heretofore set out but Slade 's own testimony as well.
Slade's testimony about what was said, at this brief meeting on June 25, and in
what order, is a bit confusing. However, I first note that Slade corroborates
Schulter's testimony that no bargaining on the terms of a contract, for which pur-
pose the meeting had been scheduled , occurred . Slade said there was no "mention
whatsoever of the union checkoff . . . this so-called bond," or "any of the sub-
stantive terms of a contract," and that "no reference" was made by him to "an im-
passe." In this connection, Slade said that he did not "mention" that he (Slade)
"felt" that "an impasse" had been previously reached, or that the Union had bar-
gained , and was bargaining in bad faith . In another respect , Slade corroborated
Schulter in that Slade stated that he initiated the discussion and the subject matter
of the meeting of June 25, by handing Schulter a photostatic copy of the petition
"immediately as he [Schulter] came in the office." It was at this point, on direct
examination, that Slade said, "Almost before I could read the petition . Mr.
Schulter asked if he could have that photostatic copy that I had handed to him ..
I said, `Certainly you may have it,' and he said, `That is the evidence I need, and
we will file charges against you,' and he proceeded to tell us in no uncertain terms
that he didn't want any contract with the Company, that we [sic] were only rep-
resented by a handful of employees, and he was fearful that we would reach a suc-
cessful negotiation of the contract terms by accepting the last offer." Henkel, counsel
for Respondent, at this point, asked Slade "Did he [Schulter] make that statement
before you made any statement as to the position on the part of the Company."
Slade answered:
I would say that I had begun to make a statement of the position of the Com-
pany and Mr. Schulter interrupted me and concluded what it would be before
it was stated because of the nature of the petition that I was handing him. But
as I say, he beat me a little bit to the draw on it, and said he was not going to
enter into the contract anyhow. He wanted to be right sure. He so expressed
that he was afraid we were going to say we accept the prior offer, and have
a contract, and he didn't want that to happen.
At the next recital, in his direct examination, of what Schulter purportedly said,
Slade testified:
The substance of what he said was that the Union was fearful that . . . the
Company would accept the Union's last offer of the contract with the Union
and thus obtain a respectability of having a union contract when in fact the
Union only represented a handful of the employees in the bargaining unit.
At the next point in his direct examination, touching on what Schulter said, Slade,
in response to the question, "what exactly did Schulter say," answered:
Mr. Schulter's statement in addition to having stated after he . . . asked if
he could keep it (the photostatic copy of the petition which Slade had handed
him) and stated that he was going to file charges against the Company, was that
he was fearful that the Company would accept the last offer of contract terms
made by the Union and enter into a contract which would give the Company
a standing of respectability. I distinctly remember that one word in his ex-
pression without quoting verbatim everything else he said, having a contract
where the Union only had a mere handful of the employees in the unit.
It is noted that in these last two recitals of Schulter's purported remarks nothing is
said about a statement by Schulter that "he didn't want any contract with the Union,"
or the other version, that "he was not going to enter into the contract anyhow."
Slade did not say on either his direct or cross-examination what statements he
made, on this occasion, concerning the Company's position in reference to the peti-
tion, or the continuance or termination of the bargaining on a contract "in view of
the petition." On cross-examination , he said that Schulter 's statements were made
WELLS DAIRIES COOPERATIVE 1205-
"at the same time" he handed him [Schulter] this petition, and at one point in the
cross-examination, the following questions were asked and answers given.
Q. The only mention concerning this petition was the copy that you gave
Mr. Schulter?
A. That is the only thing I had to say.
Q. Either you or any other Company representative had to say about it?
A. That's right.
At the conclusion of the direct and cross- examination , the Trial Examiner seeking
to clarify Slade's version of events, and the order in which he claimed they occurred
and what was said by the parties, asked a series of questions, in response to which
Slade said, "they [the union representatives] came into the conference room . . I
had several photostatic copies of the petition. I handed one to Mr. Schulter. I think
I handed one to Mr. Scott, and one to Bredlove and Savell." These questions by the
Trial Examiner, were then propounded and answers by Slade given:
Q. Then what happened?
A. I started to read the petition to the group, and I may have finished reading
the . . . short sentence at the top of the petition, or I may not have finished it,
but at that point Mr. Schuller asked if he could keep this photostatic copy he had
in his hand . . . I said, "Why certainly you may." And then he said, "This is
the evidence that I needed." Then he proceeded to make his statement concern-
ing his being fearful.
Q. And you hadn't said anything more?
A. That's as far as I got.
Q. What statement did he make?
A. His statement was that he was fearful when he came to this meeting we
would accept the prior contract proposals made by the Union and say we were
ready to enter into a contract . . . and by so doing we would have a union
contract and the respectability of having a union contract when the Union in
fact only represented a handful of the employees.
Q. What response did you make to that?
A. I just said that this petition appears to us to be genuine and we checked
it, checked the signatures and they appear to be 44 out of approximately 65 .. .
It appears to us to be genuine and we were going to honor the petition.
Q. Did you say you would not deal with the Union any further, or words to
that effect? You said you were going to respect the petition. What did you
mean by that?
A. I went further than what I just said, and said that we were suspending ne-
gotiations in view of this petition, and I reminded, I believe, Mr. Scott, that
we would be glad to hear any observation they might have to make about the
petition. . . . They didn't have anything to say about the petition. They
seemed to accept it as bona fide as we did.
It is here noted that in response to the Trial Examiner's question as to what Schulter
said, Slade, in again reciting Schulter's purported statement or statements, did not
quote Schulter as saying that "he didn't want any contract with the Company," or
that "he was not going to enter into a contract anyhow," or anything equivalent in
meaning.
Schulter admitted that he made certain statements in the course of the "words"
which "were exchanged" between him and Slade, and the "some other words" which
"were said," after and following what he and the General Counsel termed "the pre-
sentation of the petition" by Slade immediately, and the first thing, upon the en-
trance of the union representatives into the conference room, which "presentation"
included the statements which Schulter attributed to Slade concerning the petition
and which statements Slade admitted he did make, in substance and effect, at some
time during this brief meeting. Based upon my observation of the witnesses, an
analysis of the whole evidence about this June 25 meeting, and the incidents shortly
preceding it, and my considered opinion that the Company undoubtedly prior to
this June 25 meeting had determined "to honor" this petition, and because of the
petition to suspend "any further negotiations with the Union," 8 and was prepared,
and intended, to announce such decision to the Union at this meeting previously
scheduled as a bargaining session, I am constrained to accept and credit Schulter's
testimony that Slade's statement and announcement of the Company's decision con-
cerning, and "in view of the petition," was made at the time, and under the circum-
9 This is quoted from Slade's reply to a question by the General Counsel on recross-
examination.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, and in substance as related by Schulter , hereinbefore set out , and that such
statements as Schulter may have made followed thereafter.
When , on cross-examination , Schulter was asked if he said certain things he in-
sisted that in some instances the language which included the question had been taken
out of context . However , he admitted that "there may have been some reference" on
his part to a "fear" that perhaps at that session (of June 25 ) the company repre-
sentatives would say "that they accepted" the prior proposals made by the Union
and "were ready to enter a contract ," and that he "may have made some statement
along that line" in the course of the exchange of remarks following Slade's state-
ment and announcement of the Company's decision to honor the petition and sus
pend or terminate the bargaining negotiations with the Union . Schulter further
stated that during these remarks he "accused the Company of bad faith ," and de-
clared that "we knew that this petition had been circulated on Company time by a
Company employee , and that the names were so obtained , and I also, I believe , stated
that it is a possibility that in the light of the petition had we agreed on a contract it
would give the Company the respectability of having a union contract when in fact
the Union would represent only a handful of the employees in the unit ." Through-
out, Schulter insisted that remarks attributed to him were extracted from the con-
text as a whole and "must be correlated with the remarks that preceded and fol-
lowed ." On cross-examination , Schulter denied saying that he "did not want to
enter into a contract with " the Company , and I am inclined , in view of all the cir-
cumstances , and I am taking into consideration all the testimony in this respect, to
question that he made any such flat and unequivocal statement to that effect as is
attributed to him in some of the several recitals by Slade of Schulter's purported
remarks. Because of such question , I am unable to accept as an established fact in
this case that Schulter did make such a statement . It is difficult for me to com-
prehend why Schulter would in one breath say that he "did not want to enter into a
contract with" the Company , and "was not going to enter into a contract anyhow," and
in the next declare that the petition , upon which the Company had announced it
was relying to terminate or suspend the bargaining negotiations , had "no validity in
law," and "We will file charges with the Board for refusal to bargain ." This has
Schulter saying the Union would not enter into a contract with the Company, but that
he was going to file charges to make the Company, which because of the petition
had broken off contract negotiations , bargain} with the Union about a contract.
It will be remembered that Slade did not purport , in his various and several recitals
of Schulter 's statements to give Schulter's exact or verbatim language, or wording,
except as to the one word "respectability ," and I am inclined to the opinion that
Slade was at best giving his interpretation or conclusions of the meaning or sub-
stance, or what he now deems the effect of what Schulter said, and that applies to
the inclusion of the statement he attributed to Schulter in some instances , but omitted
in other recitals purporting to cover Schulter 's remarks , that he (Schulter ) "didn't
want any contract with the Company ," or "would not enter a contract."
Slade said he "understood" the remarks made by Schulter , whatever they were,
which I have found were made in the course of an "exchange" between Schulter and
Slade after and following Slade's announcement of the Company 's decision to accept
and honor the petition , and because of the petition to terminate the bargaining
negotiations , to mean "two things . One was a clear admission on the part of the
Union that on June 25, the Union did not have a majority membership in the bar-
gaining unit. Two, that the Union was not bargaining in good faith and that the
Union representatives did not intend or desire to enter into a collective bargaining
agreement with the Company." So far as the first proposition is concerned , there is
no question here, regardless of admissions or implications arising from what may
have been said by Schulter, that a majority of the employees in the unit signed the
petition . As to the defense of bad faith on the part of the Union , I perceive nothing
of significance in the course of the bargaining sessions of April 16, May 12, and
June 7, 8, and 9, which would warrant a finding of bad faith against the Union by
reason of which the Company was excused or relieved from bargaining further with
the Union , nor was any "accusation" or suggestion of that kind ever made by the
Company at any of these sessions or at the June 25 meeting. It must be remembered
that the negotiations were broken off and terminated by the Company on June 25
pursuant to a decision and purpose to do so clearly arrived at by the Company prior
to that meeting, and that nothing said or done by the union representatives at the
June 25 meeting, or any other time, had anything to do with , or in any way influenced
the decision of the Company formulated prior to and announced at that meeting to
honor the petition and terminate bargaining negotiations . Such action by the Com-
pany was based solely and alone upon the petition , and not upon any claim of either
a previous impasse or bad -faith bargaining on the part of the Union.
WELLS DAIRIES COOPERATIVE 1207
2. Defense of bad faith on the part of the Union
I find that the defense of bad -faith bargaining on the part of the Union , as well
as that of an impasse , excusing and relieving the Company from bargaining further
with the Union , is not sustained and must be disallowed.
3. Conclusions as to the legal effect of the petition
It is my finding that on June 25, 1954, the Company broke off the bargaining nego-
tiations , and refused to bargain further, or thereafter, with the Union upon the sole
ground that a clear and uncoerced majority of the members of the appropriate unit
involved had signed the petition repudiating the Union as their "bargaining agent."
Thus Respondent 's claim that , by virtue of the petition , it was legally justified in so
withdrawing recognition of the Union, and in refusing , on June 25 and thereafter, to
bargain further with it, as the certified exclusive bargaining representative of all
the employees in the appropriate unit, becomes and is the Company 's sole defense
here.
"It is a well established Board rule that , in the absence of unusual or special cir-
cumstances , a Board certification of a bargaining representative must be honored for
a reasonable period, usually at least a year following the certification , despite evi-
dence of repudiation or loss of majority by such bargaining representative." The
Baker and Taylor Co., 109 NLRB 245; Henry Heide, Inc., 107 NLRB 1160; Ray
Brooks, 98 NLRB 976.
"This rule is intended to give effect to the policy of the Act to stabilize industrial
relations and is based on the Board 's experience that a period of at least a year is
needed to assure employees , through their newly certified representative , an oppor-
tunity to establish a functioning collective -bargaining relationship ." Eighteenth
Annual Report of the NLRB, p. 43.
The Court of Appeals for the Second Circuit ( February 1944) affirmed , adopted,
and explicated the underlying rationale of the foregoing rule in N . L. R. B. v.
Century Oxford Manufacturing Corp., 140 F. 2d 541, 542-3, where the court said:
The purpose of the Act is to insure collective representation for employees, and
to that end Section 9 gives power to the Board to supervise elections and certify
the winners as the authorized representatives . Inherent in any successful ad-
ministration of such a system is some measure or permanence in the results;
freedom to choose a representative does not imply freedom to turn him out of
office with the next breath . As in the case of choosing a political representa-
tive, the justification for the franchise is some degree of sobriety and respon-
sibility in its exercise . Unless the Board has a power to hold the employees to
their choice for a season , it must keep ordering new elections at the whim of
any volatile caprice, for an election, conducted under proper safeguards, pro-
vides the most reliable means of ascertaining the deliberate will of the employees.
Looking to the development of the rule it is noted that while the Wagner Act,
as the National Labor Relations Act was known prior to its amendment by the Labor
Management Relations Act of 1947, contained provisions for Board -conducted elec-
tions, it did not specify the intervals at which elections should or might be held, or
the effect of a certification , and based upon practical considerations , stated and the
reasons enumerated in numerous cases, the Board developed the rule that a certifica-
tion, if based upon a Board-conducted election, must be honored for a "reasonable"
period ordinarily "one year ," in the absence of "unusual circumstances ." This rule
was, in substance and effect , sanctioned and enforced by the courts . Whittier Mills
Company, 15 NLRB 457, enfd. 111 F. 2d 474 (C. A. 5); Century Oxford Mfg. Corp.,
47 NLRB 835, enfd . 140 F. 2d 541 (C. A. 2); Botany Worsted Mills, 41 NLRB 218,
enfd . 133 F. 2d 876 (C. A. 3); Appalachian Electric Power Co., 47 NLRB 821,
enfd . 140 F. 2d 217 (C. A. 4); Grieder Machine Tool and Die Co., 49 NLRB 1325,
enfd . 142 F. 2d 163 (C. A. 6); Prudential Insurance Co., 56 NLRB 1847, 1859, enfd.
154 F. 2d 385, 389 (C. A. 6); Wilson & Co., 67 NLRB 662, enfd . 162 F. 2d 310
(C. A. 8).
The following is quoted from N. L. R. B. v. Ray Brooks, 204 F. 2d 899 (C. A. 9),
decided May 14, 1953:
The Labor Management Relations Act of 1947 ( commonly known as the Taft-
Hartley Act), like the Wagner Act, is silent as to the effect of a Board certifica-
tion of a bargaining agent . However, in passing the Taft-Hartley Act, Congress
was fully advised of the binding effect given by the Board and the Courts to a
Board certification of a representative under the Wagner Act.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Ninth Circuit Court, in its decision in the Brooks case, supra, next points out
that referring to what is now Section 9 (c) (3) of the Act, which provides, inter alia,
that elections in any given bargaining unit may be held only once a year, the Senate
Report (submitted by Senator Taft) stated:
This amendment prevents the Board from holding elections more often than
once a year in any given bargaining unit unless the results of the first election
are inconclusive. . . At present, if the union loses, it may on presentation
of additional membership cards secure another election within a short time,
but if it wins its majority cannot be challenged for a year.
Continuing its review of the legislative history pertaining to the present Section 9
(c) (3) of the Act, the court cites an explanation of that section made by Senator
Taft "on the Senate floor," and an excerpt from the Senate Report, as follows:
Statement of Senator Taft: The bill also provides that elections shall be held
only once a year, so that there may not be a constant stirring up of excitement
by continual elections. The men choose a bargaining agent for a year. He
remains the bargaining agent until the end of that year.
From the Senate Report: In order to impress upon employees the solemnity
of their choice, when the Government goes to the expense of conducting a
secret ballot, the bill also provides that elections in any given unit may not be
held more frequently than once a year.
Since the passage of the Taft-Hartley Act, the Board has continued to adhere to
the rule previously announced and followed, with the sanction of the courts, to the
effect that, in the absence of "unusual circumstances," the representative status of
a certified bargaining agent is beyond challenge for at least a "reasonable time" after
the certification, usually a year, and with two exceptions, later referred to, the courts
of appeals, in cases arising since the Taft-Hartley became effective, have approved
and enforced the Board's rulings in that respect. N. L. R. B. v. Worcester Woolen
Mills Corp., 170 F. 2d 13 (C. A. 1), enfg. 74 NLRB 1071, cert. denied 336 U. S.
'903; N. L. R. B. v. Globe Automatic Sprinkler Co. of Pennsylvania, 199 F.
2d 64 (C. A. 3), setting aside 95 NLRB 253; N. L. R. B. v. Sanson Hosiery Mills,
Inc., 195 F. 2d 350 (C. A. 5), enfg. 92 NLRB 1102, cert. denied 344 U. S. 963;
N. L. R. B. v. Ray Brooks, 204 F. 2d 899 (C. A. 9), enfg. 98 NLRB 976, affirmed
348 U. S. 96.
Some Board decisions subsequent to the 1947 amendments, in which the Board
adheres, at least, in general import, to the principle of the rule previously announced
and followed in respect to the effect of a Board certification based upon a Board-
conducted election, are: Mengel Company, 80 NLRB 705, 719; Lift Trucks, Inc.,
75 NLRB 998; The Belden Brick Co., 83 NLRB 465; Shirlington Super Market, Inc.,
et al., 108 NLRB 579; Henry Heide, Inc., 107 NLRB 1160; National Shirt Shop of
Florida, 105 NLRB 182; Baker and Taylor Co., 109 NLRB 245; Genesee Foundry
Company, Incorporated, 109 NLRB 1253.
In N. L. R. B. v. Globe Automatic Sprinkler Co., 199 F. 2d 64, the Court of
Appeals for the Third Circuit said:
It is apparent that the overwhelming weight of authority expressed in decisions
by the National Labor Relations Board, and by the courts, is (1) that "in the
absence of unusual circumstances" a "reasonable period" must elapse after the
certification of the union before the employer can refuse to bargain with it;
and (2) "reasonable period" has been defined as "customarily" or "usually" for
"about one year."
In that case after 49 weeks, during which the employer had bargained in good faith
and the union had "lost every one of its members," such loss of membership not
being attributable to any proscribed activities on the part of the employer, the em-
ployer refused to bargain further with the union. The court held that, under the
circumstances, such period of 49 weeks constituted a "reasonable period defined
`customarily' or `usually' at `about a year."' As I read the decision of the Ninth
Circuit Court in N. L. R. B. v. Ray Brooks, 204 F. 2d 899, affirmed 348 U. S. 96,
that court and the Supreme Court sanctioned and approved the principle that, in
the absence of "unusual circumstances," a certification, based on a Board-conducted
election, must be honored for a "reasonable period" ordinarily "one year."
The exception to the weight of court authority are two Sixth Circuit Court cases,
N. L. R. B. v. Vulcan Forging Company, 188 F. 2d 927, and Mid-Continent Petro-
leum Corp. V. N. L. R. B., 204 F. 2d 613. The Respondent here relies on these
cases. In the Vulcan case it was held that the employer did not violate the Act by
refusing , 5 weeks after certification , to bargain with a certified union which in the
WELLS DAIRIES COOPERATIVE 1209
meantime had been repudiated by almost all of the employees. In the Mid-Conti-
nent case it was held that the members of a bargaining unit had the right to revoke
the power of the bargaining agent a few weeks after it was certified by the Board, and
the employer, guilty of no unfair labor practice in bringing about such revocation,
was not guilty of an unfair labor practice for refusing 2 months after the certification
to bargain with the Union because of such repudiation by the employees.
In Genesee Foundry Company, Inc., 109 NLRB 1253, the Board said: "We have
consistently held, with the approval of the great weight of court decisions, that a
certified union's majority status, in the absence of unusual circumstances, is conclu-
sively presumed to continue for one year following certification." At footnote 5, of
its decision in that case, the Board observes: "The Respondent relies primarily on
Mid-Continent Petroleum Corp. v. N. L. R. B., 204 F. 2d 613 (C. A. 6), cert.
denied 346 U. S. 856. With due respect to this opinion of the Court of Appeals for
the Sixth Circuit, we are disposed to adhere to our customary certification-year rule,
particularly in view of contrary opinions voiced by other Court of Appeals, until
the Supreme Court of the United States decides against the Board on this issue."
It suffices to note as to Respondent's reliance in the instant case on the Vulcan and
Mid-Continent cases, without discussing them further, that in the Brooks case, supra,
the Supreme Court of the United States ruled, in effect, that, in the absence of
"unusual circumstances," an employer must continue to bargain with a union certi-
fied to represent his employees even though the union loses its majority shortly after
the election, and that the obligation continues for a reasonable period, usually 1 year
after certification. This decision disposes of the Vulcan and Mid-Continent cases.
4. Conclusion on the claim that when a majority of the employees in the unit repudi-
ated the Union as their bargaining representative the Company was relieved of its
obligation to bargain
It is not claimed , nor does it appear , in this case , that any situation existed which
the Board would recognize as constituting "unusual circumstances" as the Board has
applied that term . Certainly, under the circumstances here, the petition alone did
not create such a situation . Illustrative of situations where the Board found "unusual
circumstances" existed are: (1 ) The certified union dissolved or became defunct,
Public Service Electric and Gas Co., 59 NLRB 325; (2) as a result of a schism,
substantially all the members and officers of the certified union transferred their
affiliation to a new local or international, Brightwater Paper Co., 54 NLRB 1102,
and Carson Pirie Scott & Co., 69 NLRB 935; and ( 3) the size of the bargaining unit
fluctuated radically within a short time; Westinghouse Electric & Mfg. Co., 38 NLRB
404, 409.
Nor do I consider the period from the date of certification, March 24 to June 25,
the date Respondent refused , because of the petition , to bargain further with the
Union , approximately 3 months, during which time at 3 bargaining sessions , cover-
ing 5 or parts of 5 days, bargaining had continued and progressed with the expressed
desire and intention of the parties to thereafter continue negotiations nullified by
Respondent 's decision to "honor" the petition and solely because thereof not to
further recognize and bargain with the Union as the exclusive bargaining representa-
tive of the employees composing the unit, as being the reasonable period contem-
plated by Board and court decisions which would excuse the Company, because of
such petition , from bargaining further with the certified bargaining agent . Certainly
it was not a period of 1 year , or "about one year" from the date of certification. It
follows, therefore, that, under the facts of this case, as I have found them to be,
Respondent's refusal on June 25 then and thereafter to bargain further with the certi-
fied union , on the sole ground that a majority of the employees composing the unit
had repudiated the Union as their bargaining agent , constituted a violation of Section
8 (a) (1) and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operation of the Respondent described in section I, above, have a
close , intimate , and substantial relation to trade, traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It may be that further good-faith bargaining between the parties will be of no
avail , but that is sheer speculation , and cannot affect the remedy here indicated. It
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not permissible , under the circumstances and for the reasons found for Respond-
ent to break off the bargaining negotiations , and having found that the Respondent
refused to bargain collectively with the Union as the exclusive representative of its
employees in an appropriate unit , I shall recommend that the Respondent recog-
nize and bargain collectively with the Union and if an understanding is reached
embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. At all times since March 24, 1954, Retail , Wholesale and Department Store
Union , CIO, has been the certified bargaining representative of the Respondent's
employees in an appropriate unit.
.2. By failing and refusing on, and at all times since June 25 , 1954, to bargain col-
lectively with Retail , Wholesale and Department Store Union , CIO, as the exclu-
sive representative of the employees in the appropriate unit , Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
and (5 ) of the Act.
[Recommendations omitted from publication.]
PITTSBURGH PLATE GLASS COMPANY and GENERAL DRIVERS LOCAL
UNION No. 968, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL,
PETITIONER. Case No. 39-RC-828. March 29, 1955 -
Supplemental Decision , Order, and Second Direction of Election
On July 18, 1950, in an earlier proceeding I the Board certified the
Intervenor 2 as the exclusive bargaining representative in a unit of all
hourly paid employees at the Employer's retail glass and allied prod-
ucts branch warehouse at Houston, Texas, including auto glaziers and
leadermen, but excluding glaziers,' truckdrivers, truckdriver helpers,
truckdriver and glazier helpers, office and clerical employees, and su-
pervisors as defined in the Act.
On December 8, 1954, the Board issued a Decision and Direction of
Election 4 in the above-entitled case, finding appropriate a unit of all
truckdrivers at the Houston branch warehouse, excluding all other
employees and supervisors as defined in the Act, and directing an elec-
tion therein.' On the same date, the Board issued a notice to show
cause why the Intervenor's certification of July 18, 1950, should not be
1 Case No. 39-RD-4, not reported in printed volumes of the Board Decisions and Orders.
Inside Glass Workers Local No. 642, Brotherhood of Painters , Decorators and Paper-
hangers of America, AFL.
3 Both at the present time and at the time of the certification , the glaziers , their helpers,
and apprentices have been represented by Local No, 1778, Brotherhood of Painters, Dec-
orators and Paperhangers of America, AFL, not involved in this proceeding.
' Not reported in printed volumes of the Board Decisions and Orders
The Petitioner requested ( a) a unit of the 5 truckdrivers and 14 of the 17 "inside" em-
ployees who, although covered by the certification , had never been actually represented,
due to the Intervenor 's policy of "members only" bargaining ; and (b ) an alternative unit
of the 5 truckdrivers and all 17 of the unrepresented "inside" employees . An election in
this unit has been deferred , pending a determination of the issues herein raised.
111 NLRB No. 194.