Western Truck Services, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 688 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Truck Services, Inc. ad International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No. 190, Local
Lodge No. 1492. Cases 20-CA-14961 and 20-
CA-15184
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PEiNELI.O
On June 24, 1980, Administrative Law Judge Jay
R. Pollack issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions
and the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
AMENDED CONCLUSION OF LAW
Delete Conclusion of Law 3 and substitute the
following:
"3. The unit appropriate for collective bargain-
ing is:
"All full-time and regular part time journey-
man and apprentice mechanics, machinists,
welders, body and fender men, painters, com-
bination men and radiator repair men, parts
men, utility men, combination tiremen, lubrica-
tion men, washer and steam cleaners employed
by Respondent at its Cordelia, California facili-
In sec Ill.A, fn 1, of his Decision, as well as in Conclusion of Law
3, in par. I(a) of his recommended Order, and in the notice to employees,
the Administrative Law Judge made certain inadvertent errors in describ-
ing the appropriate bargaining unit. The unit, admitted by Respondent in
its answer to the complaint and stipulated by the parties at the hearing, is:
All full-time and regular part time journeyman and apprentice me-
chanics, machinists, welders, body and fender men, painters, combi-
nation men and radiator repair men, parts men, utility men. combina-
tion tiremen, lubrication men, washer and steam cleaners employed
by Respx)ndent at its Cordelia, California facility; excluding office
clerical employees, salespersons, guards. and supervisors as defined
in the Act
We will therefore amend Conclusion of Law 3. modify par. I(a) of the
recommended Order, and issue a notice in lieu of that of the Administra-
tive Law Judge to reflect an accurate description of the hargaining unit.
We will also issue an Amended Remedy to make clear that interest on
the moneys owed by Respondent to the health and welfare and pension
funds is not to be computed in accordance with Florida Steel Corporation,
231 NLRB 651 (1977) Rather, under Merryweather Optical Compancy, 240
NLRB 1213 (1979). the Board leaves the determination of interest, if any.
to the individual provisions of employee benefit fund agreements. We
will modify par. 2(c) of the Administrative l.aH Judge's recommended
Order accordingly.
252 NLRB No. 96
ty; excluding office clerical employees, sales-
persons, guards, and supervisors as defined in
the Act."
AMENDED REMEDY
Having found that Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the
Act.
We shall order Respondent to execute forthwith
the collective-bargaining agreement containing the
terms and conditions agreed upon by Respondent
and the Union, and to give effect to that contract
retroactively from October 1, 1979, making em-
ployees whole for any losses they incurred as a
result of Respondent's refusal to abide by the terms
of such agreement.' Backpay is to be computed in
a manner consistent with Board policy as stated in
Ogle Protection Services, Inc.. and James L. Ogle, an
Individual, 183 NLRB 682 (1970), with interest
thereon as set forth in Florida Steel Corporation, 231
NLRB 651 (1977).3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Western Truck Services, Inc., Cordelia, California,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Failing and refusing to bargain collectively,
upon request, with the Union with respect to the
rates of pay, wages, hours of employment, and
other terms and conditions of employment of the
employees in the appropriate unit described below
z This involves making whole the appropriate health and welfare and
pension funds for any losses suffered by Respondent's unlawful refusal to
execute the agreed-upon contract and to give it retroactive effect Be-
cause the provisions of employee benefit fund agreements are variable
and complex, the Board does not provide at the adjudicatory stage of a
proceeding for the addition of' interest at a fixed rate on unlawfully with-
held fund payments We leave to the compliance stage the question
whether Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy These additional
amounts may be detemined, depending upon the circumstances of each
case, by reference to provisions in the documents governing the funds at
issue and, where there are no governing provisions, by evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds withheld,
additional administrative costs, etc, but not collateral losses
:' See, generally, lis Plumbing & Hearing Co., 138 NLRB 716 (1962)
Member Jenkins would award interest on the backpay in accordance
with thie forula set forth in his dissent in Olympic edical Corporation,
250) NIRB No 11 (198(1)
688
WESTERN TRUCK SERVICES
by refusing to execute a copy of the agreed-upon
contract with the Union. The appropriate collec-
tive-bargaining unit is:
"All full-time and regular part time journey-
man and apprentice mechanics, machinists,
welders, body and fender men, painters, com-
bination men and radiator repair men, parts
men, utility men, combination tiremen, lubrica-
tion men, washer and steam cleaners employed
by Respondent at its Cordelia, California facili-
ty; excluding office clerical employees, sales-
persons, guards, and supervisors as defined in
the Act."
2. Substitute the following for paragraph 2(c):
"(c) Make whole its employees for any loss of
wages and other benefits which may have resulted
from Respondent's unfair labor practices, and pay
the appropriate interest on such amounts of money,
as more fully described in the section of this Deci-
sion and Order entitled "Amended Remedy."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to bargain col-
lectively, upon request, with the International
Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 190,
Local Lodge No. 1492, with respect to the
rates of pay, wages, hours of employment, and
other terms and conditions of employment of
the employees in the appropriate unit de-
scribed below by refusing to execute a copy of
the agreed-upon contract with the Union. The
appropriate collective-bargaining unit is:
All full-time and regular part time journey-
man and apprentice mechanics, machinists,
welders, body and fender men, painters,
combination men and radiator repair men,
parts men, utility men, combination tiremen,
lubrication men, washer and steam cleaners
employed by Respondent at its Cordelia,
California facility; excluding office clerical
employees, salespersons, guards, and super-
visors as defined in the Act.
WI, WILL NOT refuse to recognize the Union
as the exclusive representative of the employ-
ees in the unit described above for purposes of
collective bargaining.
WE WIl. NOT interrogate employees con-
cerning the Union's representative status.
WiE wiL. NOT sponsor or circulate a petition
to undermine the Union's representative status.
WE WIll . NOT promise employees benefits in
order to undermine the Union's representative
status.
Wl: Wl.l. NOT deal directly with employees
in derogation of the Union's status as the ex-
clusive bargaining representative.
WE WILL.. NOT unilaterally discontinue pay-
ments to the health and welfare and pension
funds without first giving the Union an oppor-
tunity to bargain over the matter.
WE Wll.l. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WEi Wrl.l. forthwith execute a copy of the
collective-bargaining agreement which con-
tains the terms which were agreed to between
Respondent and the Union.
WE WILL bargain collectively with the
Union by recognizing the Union as the collec-
tive-bargaining representative of all employees
in the appropriate bargaining unit described
above and by giving effect to the terms and
conditions of the above-described agreement
retroactive to October , 1979, as provided by
the terms of said agreement.
Wt WILL make whole all our employees in
the appropriate unit described above for any
loss of wages and benefits they incurred be-
cause of our refusal to sign and comply with
the terms and provisions of the aforesaid col-
lective-bargaining agreement, and we will pay
appropriate interest on those sums of money.
WESTERN TRUCK SERVICES, INC.
DECISION
STATEMENT OF THE CASE
JAY R. POII.ACK, Administrative Law Judge: This
matter was heard before me in Sacramento, California,
on April 24, 1980. Pursuant to a charge filed in Case 20-
CA-14961, against Western Truck Services, Inc. (Re-
spondent), by International Association of Machinists
and Aerospace Workers, AFL-CIO, District Lodge No.
190, Local Lodge No. 1492 (Union), on November 8,
1979, the Acting Regional Director for Region 20 of the
National Labor Relations Board issued a complaint
against Respondent on December 17, 1979, alleging that
Respondent has violated Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended. Pursuant to a
charge filed in Case 20-CA-15184, against Respondent
by the Union, on March 3. 1980, the Acting Regional
689
DECISIONS OF NATIONAL I.ABO)R RELATIONS BOARD
Director issued a complaint against Respondent on April
3, 1980, alleging further violation of Section 8(a)(5) and
(1) of the Act. On April 3, 1980, the Acting Regional
Director issued an order consolidating tha cases for hear-
ing.
The parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. A post-trial brief was
filed on behalf of the General Counsel.
Based upon the entire record, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINI)IN(GS OF FACT AND CONCIUSIONS
1. JURISDICTION
Respondent is a California corporation engaged in
Cordelia in the retail and wholesale sale, service, and
repair of motor trucks. During calendar year 1978, Re-
spondent derived gross revenues in excess of $500,000,
and purchased and received goods and materials valued
in excess of $50,000 directly from suppliers located out-
side California.
The complaint alleges, the answer admits, and I find
that Respondent is now, and at all times material herein,
has been an employer engaged in and affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THI LABOR ORGANIZATION INVOI.VII)
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE Ai.I GE) UNFAIR ABOR PRACTICES
A. Background and Issues
Since January 1970, Respondent and the Union have
been party to a series of collective-bargaining agreements
covering the terms and conditions of employment of Re-
spondent's employees in an agreed-upon unit. The last
collective-bargaining agreement was in effect from Octo-
ber 1, 1976, until September 30, 1979. By letter dated
July 25, 1979, to Maurice Epps, Respondent's president,
the union gave notice of its intention to open the exsiting
agreement for the purpose of negotiating a succeeding
agreement. Through a series of correspondence the par-
ties agreed to meet on September 26. However, Norman
Jonas, Respondent's consultant, postponed the meeting to
October 11 and subsequently to October 15, 1979. A
brief meeting was held at the Union's offices on October
15. A second meeting was scheduled for October 19,
which meeting Jones rescheduled for October 23 but did
The partics stipulated and I find the following contractual unit ap-
propriate for he purposes of collective bargaining within the meaninlg of
Sec. 9(b) of the Act:
All full-time and regular part-time journeymen and apprentice me-
chanics, machinists, welders, body and fender men, painters, combi-
nation men and radiator repair men, parts men, washer and steam
cleaners employed by Respondent at its Cordelia, Califirnia facilily.
excluding office clerical employees. salespersons. guards, and super-
visors as defined in the Act
not attend. It is stipulated that Respondent withdrew
recognition from the Union during the period October
23 until December 5, 1979. It is also stipulated that Re-
spondent and the Union resumed negotiations on Decem-
ber 5, 1979, and reached agreement on the terms of a
written collective-bargaining agreement on February 1,
1980; which agreement Respondent now refuses to ex-
ecute. General Counsel alleges such conduct violates
Section 8(a)(5) and (1) of the Act.
Within this factual framework, the General Counsel
contends that Respondent further violated Section
8(a)(l), through its admitted agent, Gene Karpins, by in-
terrogating an employee concerning the Union, circulat-
ing a petition among its employees seeking to revoke the
Union's representative status and promising employees
unspecified benefits in order to undermine the Union's
representative status. Further, the General Counsel con-
tends that Karpins, on behalf of Respondent, violated
Section 8(a)(5) and (1) by directly dealing with employ-
ees in derogation of the Union's representative status. Fi-
nally, the General Counsel alleges that Respondent vio-
lated Section 8(a)(5) and (1) by its admitted unilateral
discontinuance of the health and welfare and pension
benefit payments required by the expired 1976-79 collec-
tive-bargaining agreement. Respondent does not deny the
factual basis for the General Counsel contentions but
denies the conclusion that it has violated the Act.
B. Karpins' Conduct During August and October 1979
During mid-August 1979, Gene Karpins, in his office,
asked employee Roland Couture whether "we really
need the Union." 2 Couture answered "not particularly"
and nothing further was said on the subject.
On October 19, on another occasion while Couture
was in Karpins' office, Karpins presented the employee
with a typed petition stating:
We shopmen do not need Machinists #1492 to ne-
gotiate for us. We want a U.S. Government secret
election so we can speak for ourselves. We want
the election in a hurry.
Karpins said "this is the way to go about getting rid of
the Union" and Couture read and signed the petition.
Karpins asked Couture not to mention the matter to the
other employees.
Later that same day, Karpins took the petition, already
signed by Couture, to the employees' lunchroom. The
petition was placed on the lunchtable where it was even-
tually signed by the other three unit employees. The last
employee to sign the petition, Ed Gates, was told by
Karpins that "this is the way we're going to go about
getting out of the Union." Gates then signed the petition.
Shortly thereafter, Karpins told Gates that "if we went
nonunion, the Company would write up a contract stat-
ing what the employees would get and if the employees
agreed they could sign it." Karpins said the contract
2 The facts in this section are ot in dispute and are based on the tcsti-
mony f enmplo)ees Roland Couture. M E "Ed'" at and Joseph rad-
shaw (Gener Karpins 'sas iotl called to testify at the hearing.
690
WESTERN RUCK SERVICES
"might contain some better benefits but it would prob-
ably be written up the same" as the union contract.
The employee petition was submitted in support of a
representation petition filed b Norman Jonas, Respond-
ent's labor consultant, on November 1, 1979, in Case 20-
RM-2280. The representation petition was mailed on Oc-
tober 23, 1979, but bias sent to the wrong Regional
Office. Contemporaneously with the filing of the peti-
tion, as mentioned above, Respondent withdrew recogni-
tion from the Union on October 23, 1979. Jones resumed
negotiations with the Union on December 5, 1979, and
the petition in Case 20-RM-2280 was dismissed by the
Regional Director for Region 20 on January 8, 1980.:
In the context of the opening of negotiations for a new
contract, Karpins questioned an employee as to whether
"we really need the Union." Karpins' purpose in adduc-
ing information concerning employees' sympathies
toward the Union was made clear by his subsequent
unfair labor practices. Thus, Karpins sought to under-
mine the Union by unlawfully sponsoring and circulating
the employee petition. Further, Karpins promised that
Respondent would draft a contract for employees which
might contain some better benefits. By this conduct, Re-
spondent successfully sought to undermine the Union's
status as bargaining representative and violated the Act
as alleged in the complaint.
Accordingly, I find that Karpins violated Section
8(a)(1) of the Act by unlawfully interrogating employee
Couture, promising benefits to employee Gates and by
sponsoring and circulating the employee petition. Fur-
ther, I find that Karpins violated Section 8(a)(5) and (1)
of the Act by directly dealing with employee Gates by
promising a contract to employees which "might contain
better benefits" in order to undermine the Union's status
as collective-bargaining representative.
C. The Negotiations and the Alleged 8(a)(5) Violations
As mentioned above, during Karpins' campaign to un-
dermine the Union, Jones delayed meeting with the
Union until October 15, 1979. Jones postponed and later
failed to appear for a second negotiation meeting. There-
after, from October 23 until December 5, 1979. Respond-
ent withdrew recognition from the Union and refused to
bargain. On October 26. Bud Willis, union agent, learned
for the first time that Respondent had ceased making
payments to the health and welfare and pension funds,
required by the recently expired bargaining agreement. 4
Willis attempted unsuccessfully to contact Jones. On De-
cember 5, 1979, Jones called Willis and resumed negotia-
tions.
Jones and Willis met at the Union's offices on Decem-
ber 10, 1979 and agreed to first negotiate on language
and later on economic issues. It was further agreed that
the economic provisions would be subject to approval by
Respondent's president. With these ground rules the par-
3 The dismissal o he petition was based on the ground that the com-
plaint in Case 20-CA-14961 had issued alleging that Respondent had vio-
lated Sec. (a)(5) and (1) of he Act and. thus. no question concerning
representation could be raised.
I The parties stipulated hat effective October 1,. 1979. Respondent
ceased making payments to the funds and that the Union had no prior
notice of such change
ties reached agreement on most provisions of the con-
tract. Thereafter. on January 8 1980. Jones sent Willis a
letter setting forth the Respondent's "final offer" and
stating that "it is agreed that the Union would take back
this final Company offer to the employees" and give Re-
spondent a written answer no later than January 18.5 On
February 1. Willis called Jones and agreed to Respond-
ent's "final offer" as the collective-bargaining agreement
between the parties. Thereafter, on February 1, Willis
sent Jones a letter accepting Respondent's offer and stat-
ing that a typed agreement would soon be forwarded to
Jones. On February 13. 1980, Willis sent Jones a typed
copy of the contract for signature. On February 19 Jones
wrote Willis refusing to sign "any agreement with the
Union until such time that the Union proves they repre-
sent a majority in the Unit."
Respondent does not contest the accuracy of the docu-
ment it is requested to sign. It apparently argues that the
Union no longer represents the unit employees based on
a letter sent to the Union signed on January 29, 1980, by
all fi:ve unit employees stating:6
We no longer wish to be represented by Machinists
Union Local No. 1492. Effective immediately, we
will be representing ourselves, hereafter.
As found above, Respondent engaged in various unfair
labor practices designed to undermine the Union's major-
ity statue. The defense that the Union no longer enjoys
majority status can only be raised in a context free of
unfair labor practices. Chez Monez Ford, 241 NLRB 349
(1979); Guerdon Industries. Inc., Armor Mobile Homes Di-
vision, 218 NLRB 658, 659 (1975); Celanese Corporation of
.4merica, 95 NLRB 664 (1951). See also Eastern Washing-
ton Distributing Company, Inc., 216 NLRB 1149, 1152-53
(1975), King Radio Corporation, Inc., 208 NLRB 578, 582
(1974); C & C Plywood Corporation and Veneers, Inc., 163
NLRB 1022, 1023 (1967). The theory being that the em-
ployer's misconduct may well have induced the union's
loss of majority. rank Bros. Company v. NL.R.B., 321
U.S. 702, 705-706 (1944). Respondent committed viola-
tions of the Act which disparaged the Union in the eyes
of its employees and hence cannot rely on such unfair
labor practices to withdraw recognition from the Union.
Accordingly, I find that Respondent violated Section
8(a)(5) and (1) of the Act when it withdrew recognition
from the Union during the period October 23 to Decem-
ber 5. 1979, and when it again withdrew recognition
from the Union on February 13, 1980.
Respondent, apparently, further contends that it is not
obligated to execute the admittedly agreed-upon contract
on the ground that the employees have never ratified the
contract. While Jones argued at the hearing that the con-
tract was conditioned upon ratification by the employees,
he did not take the stand to testify. The only evidence
s Willis credibly testified that upon receipt of this letter he called Jones
and left a message oir Jones' recording device vehemently denying such
an agreement Willis credibly denied that he agreed It such conditions
On January 3, 1980. the employees had rejected the Respondent', hel
existing proposals
T Ihree of these fise employees had signed the pettion sponsored aid
circulated by Karpins on ()ctober 19. 1979
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on this point was offered by Willis who credibly denied
that ratification by the employees was ever discussed. 7
Thus, there is no requiremant that the Union seek ratifi-
cation of the agreement reached as a reault of negotia-
tions. 8
In sum, Respondent violated Section 8(a)(5) and () of
the Act when it discontinued payments to the health and
welfare and pension funds without first giving the Union
an opportunity to bargain over the matter.9 Respondent
further violated Section 8(a)(5) and (I) when it unlawful-
ly withdrew recognition from the Union in October
1979, and again in February 1980. Finally, Respondent
violated Section 8(a)(5) and (1) when it unlawfully re-
fused to sign the agreed-upon collective-bargaining con-
tract. l 0
CONCLUSIONS OF LAW
1. Respondent Western Truck Services, Inc., is an em-
ployer within the meaning of Section 2(2) of the Act,
and is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, District Lodge No. 190,
Local Lodge No. 1492, is a labor organization within the
meaning of the Act.
3. The unit appropriate for collective bargaining is:
All full-time and regular part-time journeymen and
apprentice mechanics, machinists, welders, body
and fendermen, painters, combination men and radi-
ator repair men, parts men, washer and steam clean-
ers employed by Respondent at its Cordelia, Cali-
fornia facility; excluding office clerical employees,
salespersons, guards,and supervisors as defined in
the Act.
4. At all times material, the Union has been the exclu-
sive collective-bargaining representative of the employ-
ees in the above-described unit within the meaning of
Section 9(a) of the Act.
5. By unilaterally discontinuing payments to the health
and welfare and pension funds as required by its collec-
tive-bargaining agreement that expired September 30,
1979, by directly dealing with employees in derogation
of the Union's status as bargaining representative; by
withdrawing recognition of the Union on October 23,
1979, and again on February 13, 1980; and by refusing to
sign the agreed-upon collective-bargaining contract, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
6. By interrogating an employee concerning the
Union's representative status; by sponsoring and circulat-
ing a petition to undermine the Union's representative
status; and by promising benefits in order to undermine
the Union's representative status, Respondent violated
Section 8(a)(1) of the Act.
7 Willis further testified hat based on employee statements "to get the
best you can" and Jones' statement that Respondent had made its "final
offer." he acceptad the contract.
" See North Country Motors, Ld. 146 NLRB 671, 674 (1964).
• .'VL.R.B. v. Sky WolfSales, 470 F.2d 827, 830 (9th Cir. 1972), enfd
189 NLRB 933 (1971); Harold Wt Hinson d/b/a Hen House Marker No.
3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th Cir. 1970)
to See H. J. Heinz Company v. N L.R. .. 311 U S. 514, 516 (1941).
7. The unfair labor practices of Respondent, as de-
scribed above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THI Ri-MIIE)Y
Having found that Respondent Western Truck Serv-
ices, Inc., has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to ef-
fectuate the policies of the Act.
Since I have found that Respondent violated Section
8(a)(5) of the Act by refusing to sign the agreed-upon
collective-bargaining contract, Respondent shall be or-
dered to execute forthwith the contract which contains
the terms to which Respondent and the Union previously
agreed, and to give effect to the terms and provisions of
the collective-bargaining agreement retroactively to Oc-
tober 1, 1979, as provided by the terms of the agreement.
I shall also recommend that Respondent make whole its
unit employees for any loss of wages and or benefits they
may have suffered by the unlawful refusal to apply the
terms of the collective-bargaining agreement to them."
Interest shall be computed and paid in the manner pre-
scribed in Florida Steel Corporation , 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER' 2
The Respondent, Western Truck Services, Inc., Cor-
delia, California and its supervisors, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively with
the Union with respect to the rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment of the employees in the appropriate unit de-
scribed below by refusing to execute a copy or the
agreed-upon contract with the Union. The appropriate
collective-bargaining unit is:
All full-time and regular part-time journeymen and
apprentice mechanics, machinists, welders, body
and fendermen, painters, combination men and radi-
ator repair men, parts men, washer and steam clean-
ers employed by Respondent at its Cordelia, Cali-
fornia facility; excluding office clerical employees,
I The unilateral discontinuance of the health and welfare and pension
payments will not be the subject of an independent affirmative provision
as such violation will be remedied by the make whole remedy, which, by
the terms of the agreed upon collective bargaining contract is retroactive
to October 1, 1979,
12 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by
Sec. 102.48 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions, and recommended Order herein shall, as
provided in Sec 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings conclusions. and Order, and all objections
thereto shall be deemed waived for all purposes
692
WESTERN TRUCK SERVICES
sales persons, guards, and supervisors as defined in
the Act.
(b) Refusing to recognize the Union as the exclusive
representative for purposes of collective bargaining of
the employees in the unit described above.
(c) Interrogating employees concerning the Union's
representative status.
(d) Sponsoring and circulating a petition to undermine
the Union's representative status.
(e) Promising employees benefits in order to under-
mine the union representative status.
(f) Dealing directly with employees in derogation of
the Union's status as the exclusive bargaining representa-
tive.
(g) Unilatarally discontinuing payments to the health
and welfare and pension funds without first giving the
Union an opportunity to bargain over the matter,
(h) In any like or relatad manner interfering with, re-
straining, or coercing employees in the exercise of the
rights granted to them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act:
(a) Forthwith execute a copy of the collective-bargain-
ing agreement which contains the terms which were
agreed to between Respondent and the Union.
(b) Bargain collectively with the Union by recognizing
the Union as the collective-bargaining representative of
all employees in the appropriate bargaining unit de-
scribed above and by giving effect to the terms and con-
ditions of the above-described agreement retroactive to
October 1, 1979, as provided by the terms of said agree-
ment.
(c) Make whole its employees for any loss of wages
and other benefits which may have resulted from Re-
spondent's unfair labor practices, and pay the appropriate
interest on such amounts of money, as more fully de-
scribed in the section of this Decision entitled "The
Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze and determine the amount of backpay
and other benefits due under the terms of this Order.
(e) Post at its facility in Cordelia, California, copies of
the attached notice marked "Appendix." 3 Copies of said
notice on forms furnished by the Regional Director for
Region 20, after being duly signed by Respondent's au-
thorized representative, shall be posted immdiately upon
receipt thereof and be maintained by it for 60 consecu-
tive 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 cov-
ered by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
:' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appealk, the ords in the notice reading "Posted
hy Order of the National Labotr Relations Board" shall read "Posted P'ur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
693