Western Equipment Co.

National Labor Relations Board - Board Decisions

Oct 29, 1964

149 N.L.R.B. 248 (N.L.R.B. 1964)

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all such activities , except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition of
employment , as authorized in Section 8(a)(3) of the Act.
All our employees aie free to become of remain , or refrain from becoming or
remaining , members of the above -named Union or any other labor organization.
NELSON B. ALLEN,
Employer.
Dated------------------- By--------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Information regaiding the provisions of this notice and compliance with its
terms may be secured from the Board's Regional Office , 849 South Broadway, Los
Angeles, California , Telephone No. 688-5204.
J. A. Terteling & Sons. Inc. d/b/a Western Equipment Company
and International Union of Operating Engineers , Local 370,
AFL-CIO. Cases Nos. 19-CA-2736-1 and 19-CA-2736-2. Octo-
ber 29, 1964
DECISION AND ORDER
On June 22, 1964, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in his attached Decision.
Thereafter the Respondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-iiiember panel [Members Leedom, Fanning, and
Brown].
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 brief, and the entire record,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following modifications.'
In adopting the Trial Examiner's finding that Respondent vio-
lated its obligation to bargain in good faith, we have not relied solely
upon the position taken by Respondent on substantive contract terms.
Rather we have considered the totality of circumstances in assessing
Respondent's attitude towards collective bargaining. And on the
basis of Respondent's overall course of conduct we are persuaded that
Respondent approached the bargaining table not with the sincere
1 In the absence of exceptions thereto, we adopt pro forma the Trial Examiner 's conclu-
sion that the proof fails to establish that Respondent engaged In independent violations of
Section 8(a)(1).
149 NLRB No. 28.
WESTERN EQUIPMENT COMPANY 249
purpose of bargaining in good faith but to prolong negotiations and
undermine the Union's status as majority representative, and thus to
evade its statutory bargaining obligation. Among the factors evi-
dencing a lack of good-faith bargaining were Respondent's dilatory
tactics with respect to supplying pertinent information, followed by
outright refusal to furnish promised information on job descriptions;
its insistence throughout negotiations that economic matters not be
discussed until other terms were agreed upon; its refusal to incor-
porate an agreed-upon "retroactive clause" in the written interim
agreement; the hardening of its bargaining position evidenced by the
less favorable employment terms in its last offer; and its asserting a
doubt as to both the Union's representative status and its bargaining
obligation, and that it would file representation petitions contesting
the Union's representative status, all during the certification year.
In assessing Respondent's bargaining attitude we have taken into ac-
count the seeming spirit of compromise reflected in its formal cor-
respondence with the Union; but, considering the totality of Re-
spondent's bargaining conduct, we are nonetheless satisfied that Re-
spondent attempted to create an atmosphere of reasonableness as a
cloak to mask its real intention of ultimately avoiding its bargaining
obligation.2 In the circumstances," and on the record as a whole,-, we
agree with the Trial Examiner that Respondent's evasive and super-
ficial approach to negotiations shows complete rejection of the princi-
ple of collective bargaining and was in violation of Section 8(a) (5)
and (1) of the Act.°
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner with the following modifications, and
orders that the Respondent, its officers, agents, successors, and as-
signs, shall abide by the terms of the Trial Examiner's Recommended
Order as modified below.
= N.L,RB. V . Ileimnan Sausage Company, Inc., 275 F. 2d 229, 232 (C.A. 5).
3 See , e.g, Rhodes -Rolland Clicvnolct Co., 146 NLRB 1304.
`In considering the various indiela of bad faith, we place no reliance upon Respondent's
execution of Belo contracts with two employees . As the record shows that Respondent,
before dealing directly with the individual employees , presented its Belo proposal to the
Union under conditions providing full opportunity to bargain, and took direct action only
after the Union failed , within a reasonable period of time , to take a position either way,
we do not agree with the Trial Examiner that Respondent ' s conduct was in derogation of
the Union 's status as majority representative , nor do we find this incident otherwise
indicative of bad faith . See Montgomery Ward cC Co., Inc, 137 NLRB 418, 422
6 While we agree with the Trial Examiner 's finding that the strike was triggered by Re-
spondent 's letter of September 20, 1963, in adopting his conclusion that the strikers are
entitled to reinstatement as unfair labor practice strikers, we are convinced that the strike
was caused in substantial part by the violations heretofore found and was therefore an
unfair labor practice strike.
In the absence of exceptions thereto, we adopt pro forma the Trial Examiner 's conclu-
sion that the strikers ' application to return to work of November 22 , 1963, was not un-
conditional because it was linked to the Union ' s position in contract negotiations.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Amend paragraph 2 by deleting subparagraph 2(b) and sub-
stituting the following:
"(b) Oiler, upon request, to its Boise strikers immediate and full
reinstatement to their foruier or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges."
2. Add the following to paragraph 2 as subparagraph 2(e), and
insert it also below the signature line in the notice attached to the
't'rial Examiner's Decision:
"Notify any of the Boise strikers presently serving in the Armed
Forces of the United States of their right to full reinstatement pur-
suant to the terms of this Decision and Order and in accordance with
the Selective Service Act and Universal Military Training and Serv-
ice Act of 1948, as amended, after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was heard before Tiial Examiner Martin S. Bennett at Boise, Idaho,
on February 4 and 5, 1964. The amended complaint' alleges that Respondent,
J. A. Terteling & Sons, Inc. d/b/a Western Equipment Company, had engaged in
unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the
Act. Briefs have been received from the General Counsel and Respondent.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
J. A. Terteling & Sons, Inc. d/b/a Western Equipment Company is an Idaho
corporation engaged in the sale and service of heavy construction equipment at
Boise and Pocatello, Idaho. It purchases goods and services valued in excess of
$50,000 per annum directly flour points outside the State of Idaho. I find that the
operations of Respondent affect commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local 370, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
The Union was certified on March 7, 1963, as the representative of certain of
Respondent 's employees at Boise, Idaho. Another certification followed on
May 20, 1963, covering a similar unit of Respondent 's employees at Pocatello , Idaho.
The complaint alleges that on and after May 27, 1963, Respondent refused to
bargain in good faith within the meaning of Section 8(a) (5) of the Act; that on
or about September 12, Respondent engaged in certain acts of interference,
restraint , and coercion within the meaning of Section 8 ( a)(1) of the Act; that on
or about October 1, Respondent' s Boise employees commenced a strike caused by
Respondent 's aforementioned unfair labor practices ; and that on or about Novem-
ber 22, Respondent iejected an unconditional offer by the strikers to return to work,
thereby engaging in unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
1Issued November 12, 1963, amended January 10 and 17, 1964 , and based upon charges
filed September 25 and 27 and December 2, 1963.
WESTERN EQUIPMENT COMPANY 251
B. The refusal to bargain
1. Appropriate unit and majority representation therein
The amended complaint alleges , Respondent's answer admits , and I find that (1)
all mechanics , field mechanics , mechanics ' helpers, welders , and shop clerical em-
ployees at Respondent 's Boise, Idaho, operation , excluding office clerical and pro-
fessional employees , guards, and supervisors , and (2) all shop mechanics and
helpers, partsmen , and shipping and shop clerks at its heavy duty equipment service
and repair shop at Pocatello , Idaho, excluding office clerical and professional
employees , salesmen, guards , and supervisors , respectively , constitute units appro-
priate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
The amended complaint further alleges, Respondent 's answer admits , and I find
that the Union was duly certified as the representative of the employees in the above-
described units at Boise on March 7 and at Pocatello on May 20, 1963, I find that
at all times since such dates the Union has been and now is the exclusive represent-
ative of the employees in said units within the meaning of Section 9(a) of the Act.
2. Sequence of events
The complaint specifically alleges that Respondent refused to meet with reason-
able promptness ; failed upon request to furnish information relevant to job classifi-
cations and rates of pay , and bargained individually with two employees. It also
alleges bad-faith bargaining with no intention to enter into a final contract.
The meetings between the parties commenced on March 22, 1963 , with respect
to the Boise unit and discussion evolved about a proposal previously submitted by
the Union . At a meeting on March 29, it was agreed that negotiations would be
suspended until a question concerning representation at Respondent 's Pocatello
operation was resolved ; the Union was ultimately certified as the representative of
those employees on May 20 Later that month , the parties met and discussed
Respondent's first counterproposal which, as was the case with all subsequent nego-
tiations , was directed to both installations.
Respondent's chief negotiator was Attorney Eli Weston , who was assisted at
some of the meetings by General Service Manager Edwin Wenzel and by Mana-
ger Dale Hutt of Boise. On June 4 or 5 Weston left on a previously planned trip
to Europe , returning on July 8 or 10. The next meeting was held on July 22
and other meetings were held in August, September , and November . A strike of
Respondent 's Boise employees commenced on October 2.
A consideration of several aspects of the bargaining history is , in my belief,
dispositive of the case Accordingly , it is deemed unnecessary and cumulative to
describe the meetings , documents , and correspondence in this matter in their entirety
or to treat with each facet of the argument of the General Counsel.
3. Respondent reneges on the interim contract
The union negotiations were conducted chiefly by International Representative
John Johnston and to a lesser extent by Earl Jensen , a field representative for the
Union in the Boise area. Johnston testified , and I find, that Weston's•imminent trip
to Europe was discussed at a negotiating meeting late in May. Specifically,
Johnston offered to agree to Weston 's absence from negotiations for approximately
5 weeks from June 4 until July 8 or 10 , and his failure to meet during this period,
if, in return, Respondent would agree to an interim contract covering working
conditions until Weston returned . Pay scales not having been agreed upon, he
further proposed that this contract provide that pay scales to be agreed upon in the
future be made retroactive to June 1, that existing wages not be cut , and that
union stewards be recognized.
The parties agreed to sign an interim contract containing these basic provi-
sions. General Service Manager Wenzel, in the presence of Weston , urged that
the retroactivity date be set at June 30 . Weston ultimately proposed June 15 as
a compromise date and the parties agreed upon this date . It was also agreed that
Weston would draft the document
On June 3, Weston sent a one-page interim contract to the Union. It listed
seven conditions that would apply until negotiations were resumed in July. These
were: ( 1) The Union would be recognized at Pocatello ; (2) the Union would be
recognized at Boise; ( 3) the Union would compare its health and welfare proposal
with that proposed by Respondent ; (4) Respondent would, on request, submit
requirements or standards for each job classification in each locality; (5) wage
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates would not be reduced; (6) stewards would be recognized for the presentation
of grievances; and (7) the interim contract would be effective until the next
regular negotiation meeting between the parties.
The union representatives immediately noticed that the agreed-upon retroactivity
'clause on wages was conspicuous by its absence. Johnston telephoned Nick Ter-
teling, president of Respondent, accused Respondent of bargaining in bad faith,
and suggested that Dale Hutt, Respondent' s Boise manager, discuss matters with
the Union.
This resulted in a letter being sent by Weston to the Union on June 4. He
objected to negotiations by the Union with management in his absence and stated,
"I believe all the elements of the interim agreement were agreed to." Weston
testified herein that retroactivity had not been discussed prior to his preparation of
the interim contract 2 He admitted that Johnston telephoned him promptly upon
receipt of the interim proposal and protested the absence of a retroactivity clause.
Weston countered with the statement that an agreement had not been reached
on the cost items, that he could not agree to make it retroactive, and that the
question of retroactivity was not "pertinent at this time."
I do not credit Weston herein because he is contradicted by his own correspond-
ence. In his covering letter to the Union on June 3, sent together with the
interim contract, he wrote as follows:
As per our agreement at our last negotiations, I enclose herewith original
and copy of the proposed Interim Agreement which I believe covers all of the
subjects we discussed except retroactivity. We would like to discuss this fur-
ther at our first meeting upon my return. Would you please sign the original
and return it to me for our files. . . . [Emphasis supplied ]
If the retroactivity clause had not been discussed prior thereto, there is no logical
support or reason for the statement in the letter that the agreement "covers all of
the subjects we discussed except retroactivity." Nor is his testimony that cost items
had not been agreed upon persuasive or relevant The fact is that the Union well
knew they had not been agreed upon when it acquiesced in Weston's absence from
the scene of negotiation for approximately 5 weeks; it had, however, sought to
mitigate this loss of negotiating time and of potential wage increases by seeking
and obtaining a retroactivity clause to June 15. The factor moh%atmg the Union
was Weston's inability to participate in negotiations for approximately 5 weeks, not
the agreement or nonagreement on wage items.
I find, therefore, that Respondent agreed to submit an interim agreement con-
taining a retroactivity clause to June 15 covering a portion of the period of
Weston's absence, and that, on June 3, it reneged upon this commitment. This
reneging on a contractual commitment given in exchange for the Union's accept-
ance of a substantial delay in negotiations is indicative of bad faith in Respond-
ent's obligation to meet at reasonable times and to confer in good faith. It
discloses a policy on the part of Respondent of going through the motions of
collective bargaining with no true intention of arriving at an agreement except
upon its own terms. The factors described below reflect more of the same attitude
and approach.
4. Failure to give information
Respondent has for some time maintained a job evaluation system whereby em-
ployees are rated semiannually; as a result, individual job classifications may be
changed and rates of pay increased. Rigid adherence to the unilateral operation
of this system caused Respondent, during the course of these negotiations, to
refuse to supply the Union with descriptions of the duties of the employees in the
various job titles or job classifications, including, in particular, those of journeyman
mechanic class A and journeyman mechanic class B.
Initially, it should be noted that the original contract proposal emanating from
the Union in March 1963 listed five job classifications, one of which was journey-
man mechanic. Respondent's first counterproposal in May, in essence , followed
this outline with some additions. In the area pertinent herein, if broke down the
journeyman mechanic into two classifications, journeyman mechanic class A at
$2.50 and journeyman mechanic class B at $2.25 per, hour. As will appear, the
2 Wenzel was not questioned concerning this.
WESTERN EQUIPMENT COMPANY 253
Union was never able to extract a written description of the job content of these
classifications from Respondent.3
At a meeting late in May, Johnston asked Attorney Weston what the difference
was between the A and B classifications, the former being the highest paid hourly
rated classification at the time. Johnston explained that in order to police the
contract, process grievances concerning classifications, and inform employees what
duties were expected of them, the Union needed and was entitled to job descriptions
outlining the general duties in each classification. Another reason advanced was
that the man would thus be paid consistent with the duties he performed. Weston
responded that management preferred to pay employees according to ability, but
that "they would supply job definitions" to the Union.
Thereafter, Respondent advised the Union that it was unable to write up appro-
priate job descriptions and asked the Union to supply them. The Union obtained
job descriptions utilized by another concern and brought them to a meeting on
July 22. Respondent then explained that these would not be feasible in its opera-
tions; the Union accepted Respondent's reasoning and these were discarded.
At a meeting on August 13 Johnston again asked for job description. He
stated that Respondent should supply written descriptions of the skills expected
from employees in each classification and added that the Union was willing to
make concessions on the content of these descriptions. Wenzel agreed, according
to Johnston, to submit to the Union "a comprehensive outline of duties of the
various classifications." 4
On September 4, Weston wrote to the Union concerning the negotiations. He
stated ". . . Frankly, I do not know of very many changes that can be made in
our proposal in view of the fact that you have objected to our system of individual
evaluation...." This, it is clear, was the evaluation system previously discussed at
negotiating meetings. Johnston pointed out at a subsequent meeting that it was
impossible to negotiate meaningful wage rates under such an arrangement. He
stated that before he could agree to this type of evaluation the Union would have
to receive an explanation of the system and be permitted to participate in the
evaluation. Respondent's representatives replied that this was a management func-
tion which had no bearing upon collective bargaining.5
On September 20, Weston wrote to the Union and stated, inter alia, "You would
like to have us make an across the board wage proposal, but we cannot possibly
give up our present plan of performance evaluation." Wenzel admitted that this
was an accurate statement of Respondent's position. Weston also stated in this
letter that a new contract proposal was forthcoming and on or about September 24
Respondent submitted a second contract proposal to the Union. It too provided
for class A and B journeymen mechanics and stated, in article XXIII, "An em-
ployee's job title shall be determined by management. Management may continue
the existing method of evaluation to determine the employee's earnings based on
the established wage schedule for a given job title." It is to be noted that this
quoted language did not appear in Respondent's previous contract proposal. As
is readily apparent, this was no change of position by Respondent.
8 Unless otherwise indicated, the findings hereinafter made are based upon the credited
testimony of Johnston whose testimony I credit in full While, in some areas, he was not
precise, his recollection of events and meetings was superior to that of Weston Afore-
over, 'iVeston's communications to the Union were contradictory On July 23, lie wrote to
Jensen that "the only issues remaining were wages and union security." But, on Septem-
ber 18, he wrote Johnston that "there are many important issues upon which we are not
in agreement, for example, vacations, holidays, union security and wages. . .11
4I do not credit the testimony of Weston that Respondent orally explained the job con-
tent of the respective classifications on August 13 and that Wenzel did not agree to submit
this matter in writing. Johnston testified from notes he had prepared concerning the
meeting and Weston made none. In addition, Weston claimed that the Union did not
want these descriptions, to the contrary, Wenzel admitted that the topic was raised "prac-
tically at every meeting," consistent with the testimony of Johnston. And while Wenzel
testified that he explained at one meeting that class A mechanics were qualified to work
in the field without supervision, unlike class B mechanics who worked in the shop under
supervision, this only begged the question
5 Hutt testified at one point that Respondent agreed during September to admit the Union
to the job evaluation system. He later testified however that this was only an offer to let
the Union "sit in" on it. I find that this meant participation solely as an auditor and not
in any policy role.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union went on strike on October 2. At a meeting on November 4, Weston
was asked if it was still his position that Respondent would not negotiate on the
job classifications. He replied, "We haven't negotiated in the past, not now, and
never, we'll never give up our evaluations.. ." Respondent's representatives have
steadfastly insisted on retaining the individual evaluation system and have never
submitted, in writing, the precise duties of those in the journeyman A and B
classifications Indeed, Weston admitted at one point that Respondent had not
come up with such job descriptions "because we didn't want one "
Weston also testified that he offered the Union a wage increase prior to the strike
if it would alter its position on job descriptions and that Johnston refused. The
simple fact is Respondent's position on job descriptions has never changed. Wen-
zel contended at one point that Respondent devised the A and B classifications in
an effort to meet the Union's request for job descriptions. The inference is war-
ranted on this record, however, that this was devised to keep from the Union
specific job descriptions which would permit it to represent its constituents in the
event of misclassification.
Still other evidence reveals that Respondent engaged in tactics of an evasive
nature so as to avoid its obligations in this area of collective bargaining. Thus,
Wenzel testified that Respondent had prepared a comprehensive outline of job
definitions prior to September 20; this, presumably was precisely what the Union
had long been seeking Nevertheless, he admitted that it was not submitted to the
Union because Respondent preferred to operate without such job definitions Wes-
ton was a little more specific, testifying that Respondent had not presented it
"because we didn't want one," as noted above.
This puts in more accurate perspective Respondent's second contract proposal of
September 24 which states in article IV that Respondent "will submit to the Union
job definitions in general terms outlining the duties of each of the job classifica-
tions." For, although meetings were held as late as November, these definitions
were not forthcoming. I find that Respondent never intended to submit them.
Perhaps the most revealing aspect of Respondent's concept of this area of collec-
tive bargaining is found in other testimony of Wenzel. He was asked how the
Union, as bargaining agent, could have participated in the operation of Respond-
ent's evaluation program. His reply was that ". . . the individual, if he desired
the Union . . . to be informed as to his evaluation, he could have told them...."
And, as he elsewhere testified, "I think the actual evaluation of an individual's
merits should be the prerogative of the company."
Moreover, this proposal by the Union imposed no hardship upon Respondent.
It could readily have met the Union's demand for job descriptions, setting forth the
job content, without in any way compromising its job evaluation program. The
simple answer is that Respondent was unwilling to give the Union any information
which would enable it to participate meaningfully in grievances concerning pro-
motions from class B to class A or to grieve effectively concerning the classifica-
tions themselves . To sum up, Respondent refused to submit to the Union a de-
scription of the job classifications it proposed to establish, thus demonstrating an
absence of good faith It was unwilling to put in writing precisely what em-
ployees in several vital classifications were supposed to do
I find that Respondent, after originally agreeing in May and August to supply
this information, reneged on this commitment on September 4, flatly refused on
September 20 to furnish it, and has never receded from this negative position. I
find that from May 1963 on, Respondent's conduct in this area demonstrates that it
has failed and refused to comply with the obligations imposed upon it by Section
8(d) of the Act. See Lock Joint Pipe Company, 141 NLRB 943, and Curtiss-
Wright Corporation Wright Aeronautical Division, 145 NLRB 152.
5. Unilateral negotiations with field mechanics
Pursuant to the 1961 amendments to the Fair Labor Standards Act, it became
incumbent upon Respondent to convert two monthly salaried field mechanics at the
Boise installation to an hourly wage rate by September 3, 1963. See 75 Stat
65. It is undisputed that General Service Manager Wenzel unilaterally called
upon these two mechanics at their homes, shortly prior to this date, and had them
sign forms previously prepared by Respondent which signified approval of the
change 6 The General Counsel contends that the Union as the bargaining repre-
9 The affected employee is required to sign this form contract or plan.
WESTERN EQUIPMENT COMPANY 255
sentative of these employees should have been given an opportunity to participate
in these negotiations of conditions of employment with the employees in the unit it
represents. I agree.
This topic was initially introduced by Respondent at two meetings on August 13
and .14, 1963., Johnston testified, and I so find, that Weston brought up the
matters and stated that Respondent was considering putting these employees under
a Belo type contract.? Johnston replied that he was not familiar with the Belo
doctrine. He testified, and I further find, that he never agreed that Respondent
could contact the employees involved directly. He later learned that Wenzel had
done precisely this and had obtained the employees' signatures to wage contracts
previously prepared by Respondent.
Wenzel, Hutt, and Weston gave testimony to the general effect that the Union
had waived its right to' participate in this area of wage negotiations.8 Thus,
Wenzel testified that the matter was raised by Respondent at two meetings in
August. At the first, Johnston candidly admitted his lack of familiarity with a
Belo type contract and stated that he would obtain legal advice. It was raised at
the next meeting and, according to Wenzel, "it didn't seem to be too much of
a factor." He also testified that Johnston wrote and suggested Respondent discuss
the matter with personnel of the wages and hours division. Wenzel added that he
asked the union representatives if they would agree to a Belo type contract and that
they came "very close to replying" that Respondent could "go ahead with it."
But certain correspondence between the Union and Weston, described below, dis-
closes a substantially different response and attitude on the part of the Union.
Similarly, Hutt testified that the Union was not interested in representing these
field mechanics, that Johnston wanted to check with his attorney and that Johnston
finally announced he had no objection to Respondent installing the Belo type
plan. Hutt's testimony is not credited for several reasons. Firstly, he admittedly
attended only 60 percent of the meetings. Secondly, the correspondence -between
Weston, Respondent's chief negotiator, and Johnston does not support him Thirdly,
he was manifestly not familiar with the true course of negotiations because
he insisted that Respondent had made approximately six contract proposals, whereas
it had made but two, and at the most three, if the interim contract prior to
Weston's trip to Europe is considered.
Weston claimed that Johnston stated the Union was not interested in field men
and that Respondent should proceed with its plan. He is refuted by his own
correspondence. Thus, on August 27, Weston -wrote to Johnston concerning
negotiations. Inter alia, he stated-
It is my understanding ... that you were undecided as to whether we could
put the field men on the so-called "Belo" plan permitted by the Fair Labor
Standards Act. I believe you told me on the telephone that you had discussed
this matter with Mr. Shaw [of the Wages and Hours Division] and that I
could talk to him concerning the method of working this contract out. Be-
fore we draw our counter-proposal, I would appreciate receiving a reply to
this letter to see if I have correctly summarized your position....
Johnston replied on August 28. He pointed out categorically that "We do
represent the two resident field mechanics who voted in the Boise election." I find,
therefore, contrary to Respondent, that the Union did demonstrate interest in repre-
senting these employees. Johnston went on to state in the same letter that the
third paragraph of Weston's letter of August 27, quoted above, was "In general
P See Walling v Belo Corp , 316 U S 624 Normally , employees subject to the Fair Labor
Standards Act are paid time and a half for all hours in excess of 40 per week The Belo
decision approved a novel plan whereby the salary of a mouthy salaried employee was re-
constituted so as to reflect a given hourly rate plus a stated number of hours at time and
a half , thus approximating the original monthly salary. In theory , it is a requisite that
employees subject to such an arrangement work a fluctuating workweek with no set num-
ber of hours and the number of hours worked varying from less than 40 to more than
40 per week , all at the same gross pay In practice , the affected employees may en-
counter a workweek in excess of 40 hours far more fiequently than they do the otliei
8 Respondent stresses that it canted to install a Belo , type contract The fact is that
the law required only a designated hourly rate Other contractual arrangements more
advantageous to the employee were clearly a possibility Respondent , in my considered
judgment , sought to and did take advantage of Johnston ' s lack of familiarity with the
fluctuating workweek concept.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
correct." Respondent would have it that the Union's lack of familiarity with the
Belo type contract is the equivalent of consent that Respondent could proceed to
unilaterally sign up employees to such contracts. While, in the posture most
favorable to Respondent the Union may have demonstrated some indecision , this is
by no means a definitive waiver of its statutory right to be heard in this area and
to participate therein. I find that there was no such waiver.
As is readily apparent, a fluctuating workweek under the Belo plan is less
advantageous to an employee than the more common arrangement where time and
a half is paid for all hours over 40 based upon a higher hourly wage rate.
Thus, there was a very real area wherein the Union had a function and
obligation to fill as the representative of these employees. In fact, although the
precise facts concerning these mechanics and their hours of work are not disclosed,
there may well have been an issue whether or not they met the requirements and
restrictions for a fluctuating workweek under the Belo doctrine. I find that this
conduct by Respondent, shortly before September 3, 1963, constitutes further evi-
dence of its failure to accord employees the rights guaranteed them under the
Act. It demonstrates rather a purpose on the part of Respondent to arrive at a
wage contract solely upon its own preconceived terms as well as to engage in
conduct in derogation of the Union's representative status. See Fairbanks Dairy,
Division of Cooperdale Dairy Company, Inc., 146 NLRB 893.8
Other matters
The General Counsel further argues that Respondent throughout the negotia-
tions was evasive and engaged in a course of conduct of surface bargaining
without any real intention of bargaining in good faith. Two factors persuade me
that the General Counsel is correct. The Union submitted its contract in March
1963, and Respondent submitted a counterproposal late in May. Ultimately, Re-
spondent presented another proposal on September 24. The General Counsel di-
rects attention to the fact that in three areas the second proposal is less advanta-
geous to the employees than the first.10
Thus, article VIII of both contracts provides time and a half pay for certain
designated holidays. The later contract introduces for the first time language to
the effect that overtime will not be paid on overtime. Second, article X of the first
contract provides a 60-day probationary period before an employee may acquire
seniority recognized for promotions, layoffs, vacation preferences, and other areas.
In the second agreement, Respondent increased the probationary period from 60
to 90 days. Third, in its original contract proposal, Respondent proposed a salary
of $475 per month for resident field servicemen. In its later proposal, Respondent
reduced the sum to $450.
Respondent purported to be bargaining in good faith from May to September,
yet it managed to come forward in September with a proposal more rigorous and
less advantageous than its predecessor 4 months earlier. This can hardly be indic-
ative of an open mind or of a desire to arrive at a meeting of the minds except
upon one's own preconceived terms. It is more indicative of a purpose to whip
into line employees who do not see things management's way I find that this
amounts to a rejection of the good-faith collective-bargaining principle from
March 1963 on.
The foregoing lends emphasis to Respondent's approach to the Union's repre-
sentative status treated below. It is now a well-established principle that the certifi-
cate of a labor organization has a duration of at least 1 year, except in unusual
circumstances. Ray Brooks v. N.L.R.B., 348 U.S. 96. Apparently, Respondent
views this otherwise.
As set forth, the Union was certified on March 7 and on May 20, 1963, in the
two units. On October 30, 7 and 5 months, respectively, after the two certifica-
tions, Weston wrote to the Union and commented on the fact that he had before
him a letter from the Union "wherein you suggest a further meeting to discuss the
company's individual evaluation system" [treated above]. He commented on the
9 Indeed, it is now established that such unilateral conduct, objectively viewed, is per ie
a refusal to bargain. N L.R.B. v. Benno Katz, etc., d/b/a Williamsburg Steel Products Co.,
369 U.S 736.
10 In one respect, the later contract may have been more advantageous. An article not
present in the original contract provides that an employee may not work more than 51/2
hours without a meal period. However, if the workday does not exceed 6 hours the meal
period is waived . There is no evidence as to the meal practices of employees.
WESTERN EQUIPMENT COMPANY 257
replacement of strikers and referred to a letter from the Regional Director to the
effect that Respondent had not refused to bargain in an area not treated herein but
that Respondent had, in the Director's belief, refused to bargain in another area.
Weston further stated:
However, the item that causes me the most concern is the very serious question
of whether you now represent a majority of our present employees and wheth-
er we are now required to bargain further, particularly since you have not
changed your position with reference to the items that created the impasse."
On November 6, Weston again wrote to Johnston. He purported to recapitulate
Respondent's position as announced at a meeting on the previous day. He re-
ferred to the hire of replacements at Boise, the fact that Respondent had hired
replacements "or the employees have returned to work" at Pocatello; and that "we
have very serious doubts as to whether the Union now represents a majority or our
employees." He claimed that the question should be determined either by an
advisory opinion from the Regional Director or by elections and stated, "While it
is a little early to file petitions for elections, we feel that is the proper way to have
the question determined, and we are therefore filing such petitions."
The foregoing letters serve to convince me that Respondent was stalling and
engaging in double talk. The certifications had considerable time to run, yet
Respondent contends, on the one hand, that it was bargaining in good faith,
whereas with the other the Union is flatly informed that it has no representative
status and that Respondent in effect has no obligation to bargain with it. If my
reading of the cases is correct, the Act imposes upon Respondent an obligation in
excess of this. Either Respondent recognized the Union or it did not. If it
challenged the representative status of the Union, how can it then come forward and
contend that it is operating in good faith and meeting with an open mind with a
desire to arrive at a contract not on terms solely predetermined by it. And a
consideration of its two contract proposals and the retrogression present in the
second establishes its lack of an open mind and demonstrates its bad faith in
October and November.
I find, in view of all the foregoing circumstances treated above, that Respondent
has not bargained in good faith from the commencement of negotiations for both
plants in May 1963, and that it has engaged in unfair labor practices within the
meaning of Section 8(a)(5) of the Act. I further find that by such conduct
Respondent has interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act, thereby engaging in unfair
labor practices within the meaning of Section 8(a) (1) thereof. See Rhodes-Hol-
land Chevrolet Co., 146 NLRB 1304.
C. The unfair labor practice strike
The General Counsel alleges that a strike commenced on October 2, 1963, by
Respondent's Boise employees was caused by Respondent's refusal to bargain in
good faith and was therefore an unfair labor practice strike. There is some in-
definiteness in the record as to the precise date the strike vote was taken. While
one witness, striker Karnowski, placed it on both September 20 and 27, Internation-
al Representative Johnston fixed it as the evening of September 20. And although
General Service Manager Wenzel testified that he learned at a negotiating, meet-
ing, on September 20, that a strike vote had already been taken, the reference may
well have been to an earlier strike authorization vote taken at the outset of negotia-
tions; moreover, he did not attend the meeting at which the alleged strike vote was
taken. Still other evidence warrants the conclusion that the vote was taken at the
union meeting hall on the evening of September 20.
I find that Attorney Weston wrote a letter, previously described, on the afternoon
of September 20 and sent it by messenger to the union hall. It refers to a union
meeting held earlier that day and Weston stated therein that in his belief the real
issue was union security; he proceeded to outline in some detail possible forms of
union security. He referred to wage scales and stated that Respondent's wage
scales exceeded those of its competitors. Weston then stated, "You would like to
have us make an across-the-board wage proposal, but we cannot possible [sic]
give up our present plan of performance evaluation." Still later in the letter, he
said, "I understand at-today's meeting the question of job descriptions and defini-
u This was consistent with an earlier letter on September 18, when Weston wrote that
no wage offer had been made by Respondent because the parties had been unable to agree
that Respondent could unilaterally continue to make individual wage increases.
770-076-65--vol. 149-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions is to be left until such time as we reach a contract if we reach one." He
concluded by announcing that a complete proposal would be mailed to the Union
not later than Tuesday evening; this would have been September 24.
I have previously found that from May 1963 on, Respondent did not bargain in
good faith with respect to furnishing the Union with job descriptions and with
information concerning its job evaluation program. More specifically, it agreed
in May and August to supply this information, reneged on this agreement on
September 4, and, in the September 20 letter, Weston flatly stated that Respondent
could not possibly give up its existing system. I find that it again refused to
supply the Union with information concerning the details of the system.
International Representative Johnston testified that he read this letter to the men
on the evening of the day it was received. The men then voted to strike. John-
ston testified that the main issues that caused the strike were Respondent's retention
of its job- evaluation and job classification system, and its rigid position with
respect thereto in negotiations. And while additional evidence might be desirable,
the fact is the strike vote was taken directly after the September 20 letter was read
to the men.
Of course, two of the factors relied upon in finding a refusal to bargain took
place after September 20, namely, Respondent's backtracking in its contract offer
of September 24 and the subsequent challenge to the Union's representative status.
Indeed, the latter came after the start of the strike
Against a pattern of bargaining where Respondent had reneged on its interim
agreement on retroactivity in June, had negotiated unilaterally with employees on
or about September 1, and from May on had consistently refused to bargain in
good faith with respect to job classifications and definitions, Respondent steadfastly
and rigidly maintained throughout negotiations that this last matter was one of
management prerogative. The September 20 letter from Weston constituted suffi-
cient evidence, in view of what had preceded it, that Respondent would not yield
from this position and that the Union was not entitled to have this information in
the contract. Thus, at the very least, this was one substantial reason behind the
strike vote and was one cause of the strike. I find, therefore, that this was an
unfair labor practice strike.
D. The strikers' applications to return
An issue here is whether the strikers unconditionally applied to return to work
on November 22, 1963. Although the General Counsel endeavored at length to
establish such an application, I find that the record warrants a contrary conclusion.
Thus, Earl Jensen, field representative of the Union, testified that he arranged to
meet with Weston on November 22; Wenzel and Hutt were also present . Jensen
testified that he stated that all 12 strikers named in the complaint were offering to
return to work under prestrike conditions. Weston replied that because of striker
replacements, there was room for only three or four and the rest would have to
be put upon a preferential hiring list.
Jensen later testified, however, that his offer to have the strikers return to work
was connected with a new union proposal to the effect that "if they [Respondent]
would resume bargaining in good faith, then we would return the people back, if
they would accept them." Still later, he was asked if his offer to return the men
to work was all that he said on the topic. He replied that he stated, "We would
put them back to work if they was willing, if they would accept them, if they was
willing to sit down and negotiate with us in good faith."
According to Wenzel, Jensen stated that if Respondent "would continue negotia-
tions and take everyone back to work" the Union would "give us some considera-
tion on our individual classifications, individual evaluations," as well as modify its
position on the "union clause [sic]". Weston replied that Respondent liked the
replacements it had hired and wished to retain them. Hutt testified that he agreed
with the testimony of Wenzel. On the face of Jensen's testimony , I am unable to
find that the strikers made an unconditional offer to return to work, for he clearly
linked the offer to the Union's position in bargaining negotiations and thus qual-
ified the request for reinstatement. See Bi-Rite Foods, Inc., 147 NLRB 59.12
12 Subsequent to the hearing, I was served with a copy of a letter from Johnston to
Weston, dated February 7, which purported to be an unconditional offer on the part of the
strikers to return to work. As this is not before me officially, and as the remedy set forth
hereinafter will encompass this eventuality, I do not pass upon it.
WESTERN EQUIPMENT COMPANY 259
E. Alleged interference, restraint, and coercion
John Pincock, a mechanic at Pocatello, testified that on or about September 12,
1963, he received a telephone call from Shop Foreman Robert Galloway. Gallo-
way stated that he had heard the men were going on strike and asked if Pincock
"was going out." Pincock replied that if the men struck he would do likewise.
Galloway then said that if Pincock struck he would receive his "termination
papers" and "the rest of them will too." He added that if Pincock attributed this
statement to him he would deny it. However on cross-examination, Pincock ad-
mitted that Galloway actually had stated that he "might" be terminated, and
elsewhere, that his job "would terminate."
Galloway testified that he telephoned Pincock and asked whether, in the event of
a strike, he would report for work or join the strikers. Pincock countered with a
question as to what action Respondent might take against the strikers. Galloway
replied, consistent with previous information from top management, that strikers
would be sent a letter setting a date by which they were to return to work lest
they be subsequently replaced by a "permanent new hire." He placed the date as
subsequent to the commencement of the Boise strike on October 2 and admitted
that there was a "possibility" he might have told Pincock he would deny the
conversation.13
Glen Gibbons, an employee at Pocatello up to October 1963, testified that on
or about September 13 Galloway asked if Gibbons was going on strike. Gibbons
replied that he could not "afford" a strike and was undecided. Two or three days
later, Gibbons asked Galloway "what it would mean if a man didn't go on strike."
Galloway replied that he would have "a written guarantee from the company
of a job" so long as they were "in business." However, on cross-examination,
Gibbons placed the first talk as taking place at the end of September or the first
of October, a date closer to the time fixed by Galloway. And he admitted that
Galloway could have said "if you didn't go on strike you would retain your job."
According to Galloway, the strike was on at Boise and he spoke with Gibbons
within a day or two of his talk with Pincock. He asked Gibbons if he would come
to work in the eventuality of a strike at Pocatello. Gibbons replied that he did not
know Galloway admitted stating to Gibbons, as he did to others, that employees
who did not strike "could be assured of the company's cooperation in maintaining
a permanent job for them." He later testified that he told them that if they did
not strike they would "have a job."
Treating initially with the Gibbons conversation, and with the version most
favorable to the General Counsel, I do not construe Galloway's response to Gib-
bons' question as constituting an offer of super-seniority. For every employee
other than a temporary employee presumably believes, or likes to believe, that he
has a permanent job or one which is as permanent as a job can be when a person
works for another person. I find that Galloway, in anticipation of a strike, sought
to ascertain whether the employee would report for work. In response to a later
query from the employee, Galloway told him that if he did report he would
continue to have a permanent job with Respondent. I do not believe, under the
circumstances, that the employee was subjected to interference, restraint, or coer-
cion; stated otherwise, there was realistically no promise of an extraordinary benefit
and he was not reasonably put in fear of a reprisal.
As for the Pincock incident, Galloway again had the same motivation of ascer-
taining the size of his work force in the event of a strike. Pincock attributed to
Galloway the use of the phrase "termination papers." The record does not disclose
whether Pincock equated this with the concept of a discharge notice or a less
drastic notice of layoff and I believe that the word "termination" does embrace both
possibilities, Galloway also testified that he had been briefed by Wenzel as to what
he could say to the employees . And Wenzel , as appears below , made a statement
very similar to that which Galloway- claimed he had made. Under the circum-
stances, I credit Galloway that he in effect told Pincock that Respondent, pursuant
to the MacKay doctrine,14 would permanently replace strikers who did not return
prior to a date to be designated by Respondent. Hence, I see no violation of
Section 8(a) (1) in this instance as well as in the Gibbons incident.
Albert Karnowski was employed at the Boise installation prior to the strike. He
testified that Wenzel entered the shop on September 12 bearing a list of names.
1s The only strike issue in this case was the Boise strike of Octobei 2. Apparently, there
was a later strike at Pocatello, as reflected in the testimony of Galloway.
14 N L R B. v MacKay Radio & Telegraph Co, 304 U.S. 333
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wenzel asked Karnowski how he would vote on the company's contract proposal,
adding that if Karnowski voted to strike "I'll have to replace you." Karnowski
responded that Wenzel was not entitled to discuss this matter with him and Wenzel
merely replied that he would list him as probable striker. Karnowski later
changed his testimony to place this on September 26, stating that he was in error
as to the,earlier date. Still later, he returned to and affirmed the earlier date of
September 12.
According to Wenzel, having been informed by the union negotiators that a
strike was imminent, he spoke with employees on September 20 as to whether or
not they would report for work. His choice of the date is more consistent with the
sequence of events. He asked Karnowski whether he would go out, on strike
"because we needed to know how many folks we could depend on to continue our
normal operation." He added that if the strikers stayed out beyond the time
Respondent would indicate in a letter, it might become necessary to hire permanent
replacements. He agreed that Karnowski stated that they should not be discuss-
ing this topic and that he, Wenzel, promptly dropped the matter.
The law permits an employer to hire permanent replacements for economic
strikers and, viewed realistically, when an employer tells prospective strikers that it
is his intention to do so, he has not exceeded the bounds of free speech It would
seem that if the law permits him to take certain steps he is entitled to announce that
he will do precisely that. By the same token, if an employer may replace strikers,
is it improper for him to inquire whether the employee plans to be a striker whom
he may replace or a worker whom he need not. I credit Wenzel that this, in
essence, is what he did in this isolated incident at Boise. The General Counsel
does not contend that Respondent was motivated herein other than by an effort to,
man its shop and I do not believe, under these circumstances, that it was coercive.
Accordingly, I shall recommend that this allegation of the complaint be dis-
missed. See Bonnie Bourne, an individual, d/b/a Bourne Co. v. N.L.R.B., 332 F. 2d
47 (C.A. 2); N.L.R.B. v. Willow Maintenance Corp., 332 F. 2d 367 (C.A. 2); and
Bi-Rite Foods, Inc., 147 NLRB 59.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, and occurring in
connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall'
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act. I shall recommend that
Respondent, upon request, be ordered to bargain with the Union concerning rates,
of pay, wages, hours, and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in- a signed agreement.
I shall further recommend that Respondent offer immediate and full reinstate-
ment to its 12 Boise strikers upon unconditional application, in the event said
application has not yet been made, to their former or substantially equivalent
positions, without prejudice to seniority or other rights and privileges, discharg-
ing, if necessary, any replacements in order to reinstate said strikers.
The unfair labor practices committed by Respondent involve conduct in deroga-
tion of the principles of good-faith collective bargaining. The inference is well
warranted that Respondent maintains an attitude of opposition to the purposes of
the Act with respect to the protection of employee rights in general. It will
accordingly be recommended that Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in,
the case, I make the following:
CONCLUSIONS OF LAW
1. J. A. Terteling & Sons, Inc. d/b/a Western Equipment Company is an em-
ployer within the meaning of Section 2(2) of the Act.
2. International Union of Operating Engineers , Local 370, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act. '
3. All mechanics , field mechanics , mechanics ' helpers, welders , and shop clerical"
employees at Respondent 's Boise, Idaho, operation , excluding office clerical and
professional employees, guards, and supervisors; and all shop mechanics and help-
WESTERN EQUIPMENT COMPANY 261
ers, partsmen, and shipping and shop clerks at its heavy-duty equipment service
and repair shop at Pocatello , Idaho, excluding office clerical and professional
employees , salesmen, guards , and supervisors , respectively , constitute units appro-
priate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. International Union of Operating Engineers, Local 370, AFL-CIO, has been
:since March 7 and May 20, 1963, respectively, and now is, the exclusive represent-
ative of the employees in the above-described appropriate units within the meaning
,of Section 9(a) of the Act.
5. By refusing to bargain in good faith with the Union, Respondent has en-
gaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
6. By the foregoing conduct, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The strike of October 2, 1963, was an unfair labor practice strike.
9. Respondent has not, as of the date of this hearing, engaged in unfair labor
practices by refusing to reinstate its Boise strikers.
10. Respondent has not otherwise engaged in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that Respondent, J. A. Terteling & Sons, Inc. d/b/a Western Equip-
ment Company , Boise and Pocatello , Idaho, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with International Union of Operating
Engineers , Local 370, AFL-CIO, as the exclusive representative of its employees in
the following units: (1) All mechanics, field mechanics, mechanics' helpers, weld-
ers, and shop clerical employees at its Boise, Idaho, operation , excluding office
clerical and professional employees , guards, and supervisors , and (2) all shop
mechanics and helpers , partsmen , and shipping and shop clerks at its heavy-duty
equipment service and repair shop at Pocatello , Idaho, excluding office clerical and
professional employees , salesmen , guards, and supervisors.
(b) In any other manner interfering with , restraining , or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition or employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with the above-named labor organization
as the exclusive representative of the employees in the above-described appropriate
units with respect to rates of pay, wages, hours of work, or other terms and con-
ditions of employment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Offer to its Boise strikers immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority or other
rights and privileges.
(c) Post at its installations at Boise and Pocatello, Idaho, copies of the attached
notice marked "Appendix." 15 Copies of said notice, to be furnished by the
Regional Director for Region 19, shall, after being duly signed by Respondent,
be posted by it immediately upon receipt thereof, and be maintained for a period of
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
11 In the event this Recommended Order be adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial Ex-
aminer" in the notice. In the further event the Board's Order be enforced by a decree of
a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 19, in writing, within 20 days from
the date of receipt of this Decision , what steps it has taken to comply herewith 16
16 In the event this Recommended Order be adopted by the Board , this provision shall
be modified to read. "Notify said Regional Director , in writing , within 10 days from the
date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order ,to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL , upon request , bargain with International Union of Operating
Engineers , Local 370, AFL-CIO, as the exclusive bargaining representative
of all our employees in the units described below with respect to rates of pay,
wages, hours of work , or other terms and conditions of employment , and, if
an understanding is reached , embody such understanding in a signed agree-
ment. The units are:
(1) All mechanics , field mechanics , mechanics ' helpers, welders, and
shop clerical employees at our Boise, Idaho , operation , excluding office
clerical and professional employees , guards, and supervisors.
(2) All shop mechanics and helpers , partsmen , and shipping and shop
clerks at our heavy-duty equipment service and repair shop at Pocatello,
Idaho, excluding office clerical and professional employees , salesmen,
guards, and supervisors.
WE WILL offer to our Boise strikers , upon unconditional application, imme-
diate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to seniority or other rights and privileges.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment, as
authorized , in Section 8(a) (3) of the Act.
J. A. TERTELING & SONS, INC. D/B/A
WESTERN EQUIPMENT COMPANY,
Employer.
Dated-------------- _---- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate with the Regional office of the Board , 327 Logan
Building, Fifth and Union Streets , Seattle, Washington , Telephone No. Mutual
2-3300 , Extension 553, if they have any questions concerning this ' notice of com-
pliance with its provisions.
Universal Packaging Corporation and United Papermakers and
Paperworkers , AFL-CIO. Cases Nos. 1-CA1-4441 and 1-CA-
4534. October 29, 1964
DECISION AND ORDER
On July 14, 1964, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respond-
149 NLRB No. 31.