L. L. Majure Transport Co.

L. L: MASURE' TRANSPORT COMPANY 311 L. L. MAJURE TRANSPORT COMPANY and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMER- ICA, LocAL No. 591, A. F. L. Case No. 15-CA-198. July 2O; 1951 Decision and Order On November 27,1950, Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in-and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the intermediate Report and a supporting brief. The General Counsel filed a brief in support of the findings, recommenda- tions, and conclusions of the Trial Examiner. Pursuant to the provisions of Section 3 (b) of the Act, the, Board has delegated its powers in connection with this case to a three-mem- ber panel [Chairman Herzog and Members Reynolds and Murdock]. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions, the briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, recommendations, and conclusions, with the following additions and modifications. We agree with the Trial Examiner that the Respondent violated the Act by refusing to bargain with the Union. As set forth below, however, our reasons for reaching this conclusion vary considerably from his. However, before discussing the mechanics ofthe negotia- tions, we shall consider the-Respondent's contentions concerning credi- bility and the Union's majority status. The Respondent vigorously attacks the Trial Examiner's finding crediting the testimony of General Counsel witness Caldwell. The Board has repeatedly held that because of a Trial Examiner's obser- vation of the demeanor of witnesses, it will not disturb his credibility findings unless they appear arbitrary.' We have carefully considered Caldwell's entire testimony and the record as a whole, and, while his testimony reveals minor inconsistencies as to some dates, a clear pre- ponderance of all the relevant evidence convinces us that the Trial Examiner's resolution of credibility was correct. Accordingly, we likewise credit Caldwell's testimony. As a result of an election held pursuant to the terms of an Agree- ment. for Consent Election," the Union was certified as the collective bargaining .agent of the employees in the appropriate collective bar= 1 Standard Dr, Wall Products, Inc., 91 NLRB .5.44,_enfd. 188 F. 2d 362 (C. A.'3). 95 NLRB No. 43. ,312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD :laming unit. The Respondent nevertheless questions its legal obli gation. to bargain with the Union on the ground that. a petition, repudiating the Union and containing the signatures of a majority of'the Respondent's employees, came to. the attention of the Respond- ent shortly after the issuance of the Board's certification. We have consistently held that, in the absence of special circumstances, a certification of representatives must be honored for a reasonable period, usually for at least a year following the certification, even though there may be some evidence of a repudiation of the certified union by the employees in the appropriate unit .2 The alleged repudia- tion of the Union by means of the afore-mentioned petition cannot constitute such "special circumstances." As stated by the Board in the Century Oxford case, supra: When employees have expressed their considered opinions by a method [a secret election] which leaves no room for doubt as to their true desires, repudiation of their selection can be established only through the medium of an equally probative technique. Clearly this petition, subject to all thek infirmities of a public: poll, falls short of this standard. We therefore find, as did the Trial Examiner, that the Union was on April 22, 1949, and at all times thereafter has been, the exclusive bar- gaining representative of all the employees in the appropriate unit. As fully detailed in the Intermediate Report, the Respondent and the Union engaged in three bargaining conferences on .the following dates : May 4, May 27, and August 1, 1949. At each of these con- ferences, both the Union's proposal and the Respondent's counter- proposal were discussed. The Trial Examiner, however, found that discussions were limited to the question of union security, which was the first clause in both proposed contracts. He found further that the Respondent limited the negotiations to union. security and refused to discuss any other terms until the security clause was completely negotiated., It was his opinion therefore that the Respondent in effect was limiting bargaining to a part of the contract and was offer- ing to meet with the Union for this limited purpose only. Hence he concluded that the Respondent was not bargaining in good faith in violation of Section 8 (a) (5) of the Act. Our main departure from the reasoning of the Trial Examiner stems from evaluation of the credible testimony of the union nego- tiators. In reaching his conclusion, the Trial Examiner found that 2The Century Oxford Manufacturing Corp., 47 NLRB 835, enfd. 140 F. 2d 541 ( C. A. 2), cert. den., 323 Ti. S . 714; Anderson Manufacturing Company, 58 NLRB 1511, 1513; Appalachian Electric Power Co., 47 NLRB 821, enfd. as mod. 140 F. 2d 217 ( C. A. 4) see also N. L. R. B. v. Tower Hosiery Mills, 180 F. 2d 701 (C. A. 4), cert . den., 340 U. S. 811. r L. L. MAJURE TRANSPORT COMPANY 313 although Caldwell and Pendergast talked about the wage and other provisions of the proposed agreements, they were merely raising these issues and there was no real bargaining with respect to them. How- ever, both Caldwell and Pendergast testified, the former with respect to the. May 4 conference and the latter with respect to the May 27 conference, that -w large part of both conferences.was devoted to clauses other than the union-security clause, and that with respect to those .clauses the Respondent refused to make any concessions. Indeed, the Respondent in its brief concedes as much. Thus it states : "We 'concede that the respondent was trying to dispose of the Union security clause but it conferred as to the other clauses of the Union's proposed contract and gave its views as regards thereto and its reason in regard thereto." Accordingly, we do not adopt so much of the Intermediate Report as predicates the Respondent's refusal to bargain on the alleged ground that the Respondent refused to discuss any other provision of the proposed agreements than the union-security clause. On or about May 1, 1949, the Union forwarded its proposed contract to the Respondent. On May 4, the date of the first bargaining confer- ence, the Respondent submitted its counterproposal to the Union. As the Trial Examiner found and as admitted by the Respondent, the Respondent's counterproposal contained a clause-by-clause answer to the Union's proposal. An examination of the counterproposal dis- •closes that the Respondent therein endeavored to emasculate the Union's status as certified majority representative. Thus the counter- proposal denied any measure of union security ; prohibited the pres- ence of a job steward on the Respondent's premises and denied to -employees the right to discuss union affairs at any time upon Respond- 'ent's premises; denied the establishment of a grievance procedure, reserving for the Respondent complete authority "to promulgate rules to govern the activities of its employees"; precluded the establishment of a seniority system ; retained the right for the Respondent to in- crease or decrease wages unilaterally; and denied employees the right to recognize picket lines. It can be seen therefore that the Respondent proposed. shackles for the Union, while reserving unrestrained free- dom for itself. Such a contract, if entered into, would have amounted to a formal negation of the collective bargaining principle. The Re- :spondent's president, the principal negotiator herein and one familiar' with contemporary collective bargaining contracts, must have known that no union, let alone the certified bargaining representative, could possibly have agreed to such a contract. The submission of such a contract, while not itself per se violative of the Act, is evidence of bad faith.8 The stigma of bad faith intro- 3 See Cathey Lumber Company, 86 NLRB 157, 168-9, enfd . 185 F. 2d 1021 ( C. A. 5) ; .enforcement decree vacated on other grounds , 189 F. 2d 428 (C. A. 5). -314 DECISIONS- OF' NATIONAL LABOR RELATIONS BOARD duced by the submission of this counterproposal could have, been re moved by engaging in the "give and take" of collective bargaining. Thereafter, however, the Respondent showed no inclination to modify its proposal. The record is quite clear that throughout the three bar- gaining conferences it steadfastly refused to make a single change. The insistence by the Respondent on the tern-is of its counterproposal was tantamount to a demand for complete unilateral control over all important terms and conditions of employment. The cases are legion in holding that insistence upon reserving the right to take unilateral action over matters properly the subject of collective bargaining is a negation of the collective bargaining principle envisaged by the'Act, and is in effect a flat refusal to recognize a union's right to negotiate on behalf of its members as guaranteed it by the Act.4 That the Respondent did not bargain in good faith is demonstrated by certain events following the termination of negotiations on August 1, 1949. As already indicated, on that date the Respondent reiterated its refusal to alter its counterproposal thereby refusing to agree to contract terms granting, inter alia, an increase in wages or vacations with pay as proposed by the Union. Faced with this adamant posi- ti on, unchanged after 3 months, the Union admitted to the Respondent that further attempts at reaching an acceptable agreement were futile as it was unable to bring strike pressure to bear upon the Respondent. Thus assured, the record shows that almost immediately thereafter the Respondent contemplated wage and vacation changes; that it notified the Union by letter dated August 24, of its intention to make changes; and that it then effected the changes. These changes, contemplated so soon after the Union's admission of weakness at the termination of negotiations, and representing an abrupt about face in the Respond- ent's recent bargaining position, emphatically indicate that the Re- spondent had during the period of negotiations withheld making con- cessions which might have been the basis of reaching an agreement with the Union. This becomes crystal clear when it is realized that the 4 E. g., National Licorice Company v . N. L. R. B., 309 U. S. 350 ( propriety of discharges) N. L. R. B. v. W. C. Bachelder, 120 F. 2d 574, 577 ( C A. 7) (reinstatement of discharged employees ) ; N. L. R. B. v. Union Mfg. Co., 179 F. 2d 511, 513 (C A. 5) (vacation) N. L. R. B. v. Westinghouse Air Brake Co., 120 F. 2d 1004, 1006 (C. A. 3) (layoff procedure and distribution of work ) ; Wilson & Co. v. N. L. R. B., 115 F. 2d 759, 763 (C. A. 8) (work schedules ) ; N. L. R. B. v. J. H. Allison & Co., 165 F. 2d 766, cert. den., 335 U. S. 814 (individual merit wage increases ) ; N. L. R. B. v. Boss Mfg. Co., 118 F. 2d 187,188-189 (C. A. 7) (overtime pay) ; Singer Mfg. Co. v. N. L. R. B., 119 F. 2d 131. 136 (C. A. 7) (holidays ) ; Aluminum Ore Co. v. N. L. R. B., 131 F. 2d 485, 487, where the Seventh Circuit held that the company's insistence upon "the employment of unilateral pro- cedure . . . was not within the spirit or contemplation of the Act" ; N. L. R. B. v. Berkley Machine Works, 189 F. 2d 904 (C. A. 4). See also Dixie Culvert Manufacturing Company, 87 NLRB 554, 575, where the Board held : "To insist on unilateral control over such essential factors is not to bargain in good faith ; it is the ' negation thereof"; Bethlehem Steel Company, Shipbuilding Division, 89 NLRB 341 : South Carolina Granite Company, 58 NLRB 1448; United States Gypsum Company, 94 NLRB 112. L. L. MAJURE TRANSPORT COMPANY 315 wage change finally effected was rejected by the Respondent as a com- promise agreement at the very first bargaining conference. The Respondent's contention, that the wage increase was made possible by the incidence of additional business promptly after the Union gave up hope of reaching an agreement, is not persuasive. No records were introduced in evidence to support the contention. The Respondent seeks to justify granting paid vacations principally on the ground that its employees demanded this benefit in the early part of August. However, such a demand was incorporated at all times in the Union's proposed contract. Accordingly, we find that the record does not show that the wage and vacation benefits were motivated by changes in business conditions or other circumstances occurring after August 1, 19495 Despite. the foregoing evidence, the Respondent argues that it cannot be found to have refused to bargain, because at all times it was willing to meet with the Union. Willingness to meet or merely meeting with a union does not satisfy the statutory obligation to bargain for as stated in Gay Paree Undergarment Company, 91 NLRB 1363: "the real question is whether or not the Respondent was dealing in good faith, or engaged in mere surface bargaining without any intent of concluding an agreement on a give-and-take basis." The Board's finding in that case that "The Respondent engaged in negotiations with a predetermination not to make any concession to the Union and to reserve to itself the unilateral power to decide" wages and other conditions of employment, is equally applicable here. The attitude of the Respondent in this case has at all times been incompatible with a. bona fide endeavor to reach an understanding with the chosen rep- resentative of its employees. The Respondent also contends that it was relieved of its obligation to bargain because the Union itself would make no concessions. With- out passing upon the legal soundness of the Respondent's underlying premise, we find no merit to this contention, for the record as a whole discloses not only that the Union entered into the negotiations with a predisposition to bargain in good faith and'execute an agreement, but that it also did in fact offer to modify its proposed union-security and wage clauses in an effort to effect a compromise with the Re- spondent. Accordingly, upon the entire record in this case, we find, as did the Trial Examiner, that at all times on and after May 4, 1949, the Re- spondent refused to bargain in good faith with the Union in violation of Section 8 (a) (5) of the Act. However, although as indicated above, we are of the opinion that the circumstances surrounding the post August 1 changes in wages and vacations, demonstrate the Re- Cf. H. 0. Hill Stores, Inc., 49 NLRB 184, 193, enfd. 140 F. 2d 924 (C. A. 5). 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's' bad faith during negotiations, we do not agree with the Trial Examiner that the effectuation of these changes was per se a refusal to bargain in violation of the Acts The Respondent, in a manner which we deem adequate, did notify the Union of its intention to make changes. The Union ignored this communication. Under these circumstances, no basis exists for holding that the Respondent in proceeding to make these changes in its employees' terms and condi- tions of employment thereby refused to bargain with the Union. 'We agree with the Trial Examiner that the strike called by the Union on June 16, 1949, was caused by the Respondent's refusal to bargain with the Union and that the Respondent's employees who participated in the strike were unfair labor practice strikers entitled to their jobs upon unconditional offers to return to work. We find as did the Trial Examiner that Burt and Harris made unconditional offers to return to their jobs on or about November 1, 1949, and that by refusing to reinstate them, the Respondent discriminated in regard to their hire and tenure of employment in violation of Section 8 (a), (3) of the Act. It is unnecessary in reaching this conclusion to adopt the Trial Examiner's holding that by this action the Respondent "in effect discharged" Burt and Harris. We agree with the Trial Examiner that Majure, by his statements to, and questioning of, Burt as described in the Intermediate Report, violated Section 8 (a) (1) of the Act. We likewise agree that Rice's statements to Harris did not violate the Act; however, we base our finding on the fact that these statements did not interfere with, re- strain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act, and not as did the Trial Examiner on the fact that these statements might have been mere isolated statements by Rice_ Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent, L. L. Majure Transport Com- pany, Meridian, Mississippi, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International. Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,. Local No. 591, A. F. L., as the exclusive representative of all truck drivers employed at its place of business in Meridian, Mississippi, excluding all other employees and supervisors as defined in the Act, with respect to rates of pay, wages, hours, or other conditions of employment. 6 Cf. Crow-Burlingame Company, 94 NLRB 997. L. L. MAJURE TRANSPORT COMPANY 317 (b) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 591, A. F. L., by discriminatorily discharging or refusing to re- instate any of its employees or in any other manner discriminating against employees in regard to their hire or tenure of employment; or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 591, A. F. L., or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to re- frain from any or all of such activities except to the extent that such right 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, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 591, A. F. L., as the exclusive representative of all the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, arbitration, seniority, checkoff, and other con- ditions of employment (including union security, provided that the Union has been authorized under the provisions of the Act) and, if an understanding is reached, embody such understanding in a sig.,ed agreement. (b) Offer to Leo Burt and Joe Elmore Harris immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, discharging if necessary, any employees newly hired on or since June 17, 1949. (c) Make whole Leo Burt and Joe Elmore Harris, in the manner set forth in. the section of the Intermediate Report entitled "The Remedy." (d) Upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due. (e) Post at its place of business in Meridian, Mississippi, copies of the notice attached here as Appendix A.7 Copies of such notice, I In the event this Order is enforced by a decree of a United States Court of Appeals there shall be inserted in the notice , before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." 318 DECISIONS '-OF NATIONAL LABOR RELATIONS BOARD to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Fifteenth Region, in writing, within ten (10) days from the. date of this Order, what steps Respondent has taken in compliance herewith. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL No. 591, A. F. L., or in any other labor organization, by discharging or by refusing to reinstate any of our employees, or by discriminating in any other manner in re- gard to their hire or tenure of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the above-named union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and 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 of employment as authorized in Section 8 (a) (3) of the Act. WE WILL bargain collectively upon request with the above- named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, or other conditions of employment, (including union security, provided that the union has been au- thorized under the provisions of the Act) ; and if an understand- ing is reached, we will embody such understanding in a signed agreement. The bargaining unit is: All truck - drivers employed . at our place of business in Meridian; Mississippi, excluding all other employees and su- pervisors as defined in the. Act. L.. L. MAJURE TRANSPORT COMPANY- - 319 :Wn WILL offer to Leo Burt and Joe Elmore Harris immediate and full reinstatement to their former or substantially equivalent positions,' without prejudice to their seniority and other rights and privileges; and we will make them whole for any loss of pay suffered as a result of our discrimination against them. All our employees are free to become, remain, or refrain-from be- coming or remaining, members of any labor organization, except to ,the extent that such right may be affected by an agreement, as author- ized in Section 8 (a) (3) of the Act, that requires membership in a, labor organization as a condition of employment. . L. L. MAJLTRE TRANSPORT COMPANY, Emmployer: By -------------------------------------- (Representative ) . (Title) Dated ---------=---------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon an amended charge, filed August 18, 1950, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 591, A. F. L., hereinafter referred to as the Union, and signed by Warren E'. Hall,. Jr., as its attorney, the General Counsel of the National Labor Relations Board;. herein called the Board, by the Board's Regional Director for its Fifteenth Region (New Orleans, Louisiana), issued a complaint against L. L. Majure Transport Company,, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1),(3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. On August 21, 1950, a copy of the complaint, together with a copy of the charge and at notice of hearing, was` served upon the Respondent' and the Union. With respect to the unfair labor practices the complaint alleged in substance: (1) That on or about May 1, 1949, and at all times thereafter, the Respondent re= fused to bargain collectively with the Union as the exclusive representative of its employees within an appropriate unit, although the Union was, and is, the duly certified representative of such employees; (2) that the Respondent has refused to reinstate two named employees because of their concerted activities on behalf of-the Union; (3) that certain threats, -inquiries, advice, statements, and inter- rogation of the Respondent were in violation-of the Act; and (4) that by all of the above conduct the Respondent has interfered with, restrained, and coerced its employees, and is interfering with, restraining, and coercing its employees in. the exercise of rights guaranteed, in Section 7 of the Act, more particularly Sec- tion 8 (a) (1), (3), and (5) thereof. On ;August 30, 1950, the Respondent filed an answer whereiri in' slibstaiice it denied that the Union represented a majority of its employees ; that it failed The original charge was filed July' 25,^ 1949, `and a'eo18,'thereof'4as serveid'on 1'the Respondent July 28, 1949. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and refused to bargain with the Union, or to recognize the Union ; that' it re- fused employment to the individuals named in the complaint and averred that said individuals had no employment rights with the Respondent or that there were jobs available for them ; denied that it had engaged in any of the unfaii labor practices alleged in the, complaint; and further averred that. the Union had engaged in unfair labor practices violative of the Act by calling a strike at another plant in which the Respondent held an interest in order to force the Respondent to sign a contract with the Union. Pursuant to notice a hearing was opened on September 14 at Meridian, Mississippi, by Allen MacCullen, a Trial Examiner duly designated by the Chief Trial Examiner. Trial Examiner MacCullen received certain stipulations and granted a motion to postpone the hearing. On October 5, 1950, the hearing was reconvened by Louis Plost, the under- signed Trial Examiner designated to replace Trial Examiner MacCullen, who was occupied elsewhere. The General Counsel and the Respondent appeared by counsel and the Union by a representative. The representatives of the parties are hereinafter re- ferred to in the name of their principals. All the parties participated in the hearing and were afforded full opportunity to examine and cross-examine wit- nesses, to introduce evidence bearing on the issues, to argue orally on the record, and to file briefs, proposed findings of fact, and/or conclusions of law with the undersigned. At the opening of the hearing, before the undersigned, the General Counsel moved to strike from the. Respondent's answer any and all references to unfair labor practices on the part of the Union. The undersigned denied the motion. In ruling, the undersigned stated that although the complaint did not allege unfair labor practices by the Union, the Respondent was not thereby denied the right to' plead nor was the undersigned precluded from considering alleged unfair labor practices by the Union if pleaded by the Respondent' At the completion of the evidence in the General Counsel's case-in-chief, and again at the close of the hearing, the Respondent moved to dismiss certain paragraphs of the complaint and also to dismiss the complaint in its entirety. The motion to dismiss the complaint in its entirety was denied by the under- signed and the motion to dismiss certain paragraphs thereof was denied in part, granted in part, and certain rulings reserved. The reserved rulings are disposed of by this Report. Likewise at the close of the hearing the undersigned granted an unopposed motion by the General Counsel to conform all the plead- ings to the proof with respect to dates, spelling of names, and like minor variances, not substantive. The parties waived oral argument, but asked for leave to file briefs. A date was set for the filing of briefs, proposed findings, and/or conclusions. This date was later extended on the joint request of the General Counsel and the Respondent. Upon the entire record in the case and from his observation of the witnesses the undersigned makes the following: - FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The General Counsel and the Respondent entered into the following stipula- tion : 2 See Moreland Bros. Beverage Co., 91 NLRB 409. L. L. MAJURE TRANSPORT COMPANY 321 The Respondent, L. L. Majure Transport Company, is and has been for, several years a partnership between L. L. Majure and his wife, Mrs. Jo M. Majure; and that since the formation of that partnership in the operation of that busi- ness, the Company Respondent has maintained its principal office and place of business in Meridian, Mississippi, where it is and has been and is now con- tinuously engaged in transporting petroleum products. That during the course of its business operation for the past 12 months, and particularly during all the times which are material to this complaint, the Company [Respondent] transported 24 million gallons [of gasoline] ; that the value of those gallons is approximately $2,400,000, and that of that amount approximately 85 percent is shipped in and out, of commerce, interstate com- merce to States other than the State of Mississippi. II. THE ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, Local No. 591, A. F. L., is a labor organization which admits em- ployees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The. appropriate unit and the representation by the Union of a majority therein There is no contention that pursuant to the terms of an "Agreement for Con- sent Election" entered into on March 31, 1949, by and between the Union and the Respondent, the Board's Regional Director for the Fifteenth Region on April 10, 1949, conducted an election among certain of the Respondent's employees in order to determine their choice of a bargaining representative within the meaning of the Act. The unit agreed upon in the above-mentioned "Agreement for Consent Election," as being appropriate for the purposes of collective bargain- ing, was All-truck drivers employed by L. L. Majure Transport Company. EXCLUDING All ' other employees, and supervisors as defined in the National Labor Relations Act, as amended. The employees voting in the said election designated the Union as their repre- sentative for the purposes of collective bargaining. Thereafter on April 22, the said Regional Director certified that the employees eligible and voting had designated the Union as their representative. No objections were filed. The Respondent's answer pleads : Respondent denies that a majority of its employees belong to the Union and denies that the Union now represents a majority of respondent's employees. However, by reason of election mentioned in Paragraph VI of the complaint the Union is the exclusive representative of respondent's employees in the Unit referred to. The contradictory ideas set forth in the above-quoted paragraph if intended to show a paradox to sustain a contention that the Respondent should not be required to bargain with the Union because of a defection in membership and therefore any bargaining engaged in after the alleged loss of majority was merely a gratuitous gesture of good will by the Respondent toward the Union is entirely without merit in the opinion, of, the undersigned. The Respondent adduced uncontradicted'eVi eince that on June 17, 1949, the Union having called a strike of the Respondent's employees and set up a picket 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD line, only 3 of the Respondent's employees, of the 16 union member .employees, answered the strike call, the rest did not respect the picket line. Employee W. L_ Grafton, called by the Respondent, testified that shortly after the April 10 election he presented a "petition" repudiating the Union to the Union's president and business agent. Grafton testified that the "petition" bore the signature of 12 union member employees ,of the Respondent. It was admitted that the Union's president and agent refused to accept the document. Grafton further testified that he later signed another document which repudiated the Union. C. W. Rice, the Respondent's dispatcher, testified that lie found this document on his desk but did not know how it got there. The above testimony is more, fully discussed hereafter. Assuming arouendo that the facts are as alleged they would not justify or excuse a refusal to bargain for the reason that an employer cannot justify a refusal to bargain with a certi- fied union of his employees on the sole ground that the union has lost its majority.' The undersigned finds that on April 22; 1949, and at all times thereafter, the Union has been the duly designated representative of the Respondent's employees in the afore-mentioned appropriate unit. 2. The ref usal to bargain As has been found herein the Union was certified on April 22, 1949. On May 1, by previous agreement, James Caldwell, president and business agent of the local, testified that he called at the office of E. L. Snow, the Respondent's attorney ; that the Respondent then requested a few days' time in order to study the proposed contract to which Caldwell readily agreed and. left without any discussion of the proposed agreement. By appointment on May 4 Cald elt again came to the attorney's office accompanied by employee' Boots Warren.' The Re- spondent was represented by L. L. Majure, C. W. Rice, and Attorney Snow. Cald- well testified that when he "got into Mr. Snow's office" the latter handed him a typed document and a pen with the statement that the document was the Respond- ent's counterproposal to the Union and then "told me to sign it." The document was in fact drawn as a complete labor contract covering wages, hours, and work- ing conditions. With respect to the Respondent's proposal, L. L. Majure, the Respondent's managing partner, testified that as president of another trucking company which had been under contract with the Union for "10 or 12 years," he was familiar with union contracts ; knew what a union generally asked for in a contract ; and had personally signed contracts between the Union and this other company. E. L. Snow, the Respondent's attorney,, testified that he and^Majure discussed the Union's proposal at the time it was first presented. Snow testified : We, of course, read the first paragraph, and I laughingly said, "Well, these boys want to keep anybody who don't belong to the Union from work- ing for him." (The Respondent) He (Majure) said, "Well, that's one "thing that we, just can't agree to. We can agree to give them some kind of security, but we, can't agree that these _ boys that don't want to belong to the Union will have to do it. We just are not going to get in the position of forcing them to belong to the Union." So he went away then, and I read it and analyzed it as best I could and went and got the Taft-Hartley Act out and read it and tried to understand it as belt I could, which I'11.have to admit was not too good, your Honor. N: L.R. B. v. Franks Bros . Co., Inc., 321 U. S. 702. 4 Warren did not testify. A supena was issued for his appearance which he did not honor. L. L. MAJURE TRANSPORT COMPANY 323 Anyway, I then got Mr. Majure back up there, and we discussed it; and we'd write a paragraph, and we'd change it, and we'd write it and we'd try to get it to suit him. Finally after he came up there a number of times, we got it drawn, and I dictated it and my secretary wrote it off on yellow sheets, and then we went over it and we corrected it some more. In the opinion of the undersigned an examination of the two proposed con- tracts not only discloses two basic philosophies with respect to labor relations but clearly reveals the intentions of the parties regarding their mutual legal obligation to bargain. The Union's proposal begins (a) with the statement that it shall be the sole representative of the coerced employees and then provides that if and when under the auspices of the Board these employees should vote for a union shop as a condition of employment; then this form of union security should be included in the contract; (b) provides for shop stewards; (c) provides that the Union's representative may enter on the Respondent's premises to transact union busi- ness; (d) provides for notice of impending discharge, a hearing before discipli- nary action or suspension, and sets up a grievance procedure; (e) provides for seniority; (f) provides for vacations; (g) provides a wage scale; (h) provides for minimum working standards; (i) provides that employees shall not be required to cross picket lines; (j) provides for pay if injured on the job. The contract also contained clauses with references to damages, bonds, use -of defective equipment, posting of the contract, and such like matters. It also (k) provided for checkoff of dues if requested by the individual to be affected. The•Respondent's counterproposal, in its opening paragraph, provided that the Union be the sole representative of the employees but that the Respondent have the sole right to choose employees and further provided that union membership should not become a condition of employment and that any employee acquiring membership "may resign his membership therein within his discretion." The only recognition of union security was a statement that an employee after 60 days' service, "shall be placed on such seniority list as is maintained." However, in another clause, the proposal: (a) Denies the existence. of, or duty of the Respondent to recognize, seniority; (b) the proposal states "there shall be no job steward"; (c) in effect prohibits the Union's representative from discussing union business with members on the job; (d) provides that all matters connected with discharge (grievance procedure) shall be exclusively with the Respondent; (e) eliminates any seniority; (f) provides that no vacations will be granted with pay but permits employees to ask in writing for time off without compensa- tion for "reasonable periods"; (g) wages are to be set wholly by the Respondent without any guarantl - - of rate or hours; (h) employees are required to cross the picket lines of any union; and (i) the proposal states that injury and sickness shall be covered by nothing other than the Workman's Compensation Act of Mississippi. There are other clauses covering the similar clauses in the Union's proposal with respect to bonds, equipment, posting of contract, and like matters. • The Respondent's proposal (j) provides that there can be no checkoff of dues. Caldwell testified that when he had received the Respondent's proposed con- tract on May 4 he discussed the proposals, both the Union's and the Respondent's, with the Respondent. Caldwell testified that the parties did talk about the wage clause and other clauses but it is clear from' his testimony that he merely raised the issues and that there was no real discussion of any clause other than the very first, namely, union security. 961974-52-vol. 95-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Attorney Snow testified that after Caldwell read the Respondent' s proposal "he just kind of laughed and said ," "We can't use this contract at all." Snow testified : Mr. Caldwell, after he said that-I said, "Well, Mr. Caldwell , let's see what we can get together on." So he started to talk, and I says, "Well, now, there's only one way to dispose of this matter in a business manner, and that is to take it as it comes." To be frank, with you, we have taken their contract-and if you'll look at the form of ours, you'll see that we took Paragraph 1 and wrote our proposal to that paragraph . We went down the contract with our proposals in the same order in which their contract set up their demands. I said to him, "Now, let's take it as you gentlemen have it set up in your contract, and let's dispose of it as it comes, in the order that it comes." I knew that the union security was the closest thing to those gentlemen's hearts. I have sat in some other conferences of union contracts, and I know that's the first thing they want to deal about, so it was the first thing in that contract. I said, "Let's dispose of it. Let's-get over that hump before we get anywhere else." Majure testified that the May 4 discussion began with the following statement by Attorney Snow : Mr. Caldwell, there's one provision in this thing, we're going to take this contract paragraph by paragraph and work it out. and that thereafter the negotiations never progressed beyond the first or union- security clause of the contract. C. W. Rice, the Respondent's dispatcher, also present, testified "the only discussion pertaining to the contract that I remember of was in regard to open or closed shop." Both Majure and Snow testified that during the negotiations Caldwell threatened to strike the L. L. Majure Transport Company and further threatened: I'm going to cause you trouble at Dixie Highway Express. Majure further testified that Caldwell threatened destruction of the Dixie Express property. Majure is also president of Dixie Highway Express. Rice testified : Q. (By Mr. Snow ) Now, Mr. Rice, when Mr. Caldwell left and before he left, did he say anything about picketing Dixie? A. Well, he-I couldn't say, Mr. Snow . I don't remember if he said-he left the impression that he would cause us trouble. As to whether he said he would picket Dixie, I don't remember if he did. Caldwell denied making any threatening statements. On the entire record, the evidence considered as a whole, including the failure of the witness Rice to definitely recall any threat allegedly made by Caldwell, the undersigned credits Caldwell's testimony with respect to any threats allegedly made by him on May 4, and finds that Caldwell did not threaten damage to any of the property belonging to either the Respondent or the Dixie Highway Express. As to the balance of the testimony with respect to the May 4 meeting of the parties the undersigned finds no real or material conflict therein . In the opinion of the undersigned it is clear -that Caldwell rejected the Respondent's counter- proposal and - made an attempt to discuss both-of the proposed contracts "para- graph by paragraph ," and it is equally clear that the Respondent ' refused- to L. L. MAJURE TRANSPORT COMPANY 325 discuss any clause in the contracts other than the first clause which pertained to union security. Majure and Snow both testified and Caldwell admitted that as he left the May 4 meeting, Attorney Snow said: -Mr. Caldwel, whenever you want to take this mater up any further, we want to say to you here and now that we're ready to negotiate with you and talk with you at any time. .. . Caldwell testified that he personally made no further effort to negotiate with the Respondent but asked for assistance from Charles Pendergast, the inter- national representative of the Union for the area. Pendergast testified that on May 27, he met with the Respondent, represented by L. L. Majure and Attorney Snow. Pendergast explained that he was present to negotiate on the proposed contract personally because he had been informed that the negotiations between the Respondentiand Caldwell "had dead locked." Pendergast testified : After I explained that to them, then I had a copy of the union's proposal and a copy of the company's proposal ; and we discussed the two compara- tively for a few minutes, and I took the company's proposal. Pendergast testified that he was "trying to go up from their (the Respondent's) proposal" and: I started with Article 1 and asked if willing to make changes, not down- ward but upward. I figured it was as low as they could get it. I asked him if he would be willing to give -us some type of a union shop providing we held an election under the Taft-Hartley Act, and were certified to have a union shop. Mr. Snow advised me at that time they would not consider a union shop in any manner, neither would they consider the check-off of union dues. Pendergast further testified that the Respondent refused to make any changes and that he then told Majure and Snow "that the union was better off with just a certification that they had from the Board rather than sign this agreement because it did not provide for anything whatsoever in the way of wages, hours, and very few conditions." Pendergast then left, as he did so Snow remarked "The door is open if you wish to come back." With reference to the Respondent's meeting with Pendergast on May 27 Majure testified as follows : Q. (By Mr. Snow) Now, Mr. -Majure, on that occasion, did Mr. Pender- gast go over the contracts with you and I? A. He attempted to go over it and stated before we says, we're-you told Mr. Pendergast, "We're going to take it paragraph by paragraph," and we never did get away from the first paragraph. Attorney Snow testified: Mr. Pendergast discussed with us the union security feature of the con- tract, and neither with Mr. Caldwell nor Mr. Pendergast have we ever gotten down to a discussion of money, the rate of pay, because whenever we would then go to discuss it, we would always take up the matter of union contract-union security, and-we never got over that feature. .Majure further testified that in the Respondent's discussion of the contract proposals with Pendergast the subject discussed was the union shop only, he testified : 326 DECISIONS'. OF NATIONAL.'. LABOR : RELATIONS BOARD We wouldn 't permit him to get away ' That was the subject ', was the, first to start. That's the one thing have to be settled. The undersigned sees no material conflict in the testimony . Pendergast testi-- fled that he attempted to negotiate all the terms of the Respondent 's proposal. 'upward. 1llajure admitted Pendergast made the attempt ' and both he .and Snow testified in detail as to the * matter„ the Respondent confined any discussion to. the first paragraph of the contracts . The undersigned finds'on all the evidence that on May 27, 1949, the International Representative Charles Pendergast attempted to negotiate with the Respondent on all the terms of both the Union's proposal to the Respondent and the Respondent's counterproposal but that the Respondent did not permit any effective discussion beyond the subject of union security which was contained in the first paragraph of both agreements. On June 17 , the Union called the employees of the Respondent out on strike. -The strike was ineffective and was finally abandoned by the Union. Caldwell testified that on August 1, which was after the . failure of the strike became apparent , he and Pendergast again met with Majure and Snow at the latter's office . According to'Caldwell , at this meeting Pendergast "went through" both of the proposed contracts , that of the Union and the Respondent 's counter- proposal, "section by section," and that the Respondent 's position was expressed to the Union's representatives as follows : They said we didn't need-those boys didn't have no right to be in the Union on account of they worked for themselves . They was on a percentage basis, Pendergast testified , with respect to the August 1. meeting : Q. (By Mr. Kyle) Now, what happened at that meeting? At that meeting we-after the preliminaries , I asked . the company, just simply asked the company if they had changed their position any on the proposed contract for Majure Oil Transport . They advised . me that they had not changed their position , and of course, I advised them again that their proposal was still unacceptable to us unless we could make some changes in it and get some better provisions in the contract , and that was about the sum and substance of that , other than at the conclusion . The meeting didn't last very long , only lasted a few minutes , and at the conclusion I said that seemingly we were wasting time and that the Union was in no position at the present time to enforce their demands. With respect to the above -mentioned last meeting on the contract, Majure testified : No; sir, we never did get.away from the first paragraph because you (Snow ) had specifically told these men, we're going to take this contract item , by item, we are not going to haye any closed shop check-off ..system, or whatever it is, to do with the contract - that- forces the people to join a Union that don't want to join it. Attorney Snow testified : They came into the office ; and Mr. Pendergast . said to Mr. Majure in my presence there that he would ; like to know . if:his position had changed on the union security proposition . Mr. Majure; -told him",that it had . not. One or the other of those :gentlemen-well , Pin prepared;to:,spywhich one it-was. Mr. Pendergast who was sitting . right across the,. desk from me said' to fi,iliJr me, said to me and. to Mr . Majure ; that there was no need to try to negotiate the contract furtlier ,' that they had expected all of the men to come , out,, L:' L: MAJURE, TRANSPORT. COMPANY 327. that they'd been, disappointed in that, and that they would have to'recog= nize them before they would negotiate further ; and Mr. Caldwell affirmed that, and I said to them, I says, "Well, gentlemen, whenever that is done or whenever you want to talk to us about your contract, we are always. ready and willing to talk to you, and there's no reason why we can't get together on a contract." They have not been back since. There is no material conflict in the testimony with respect to the final meeting. The undersigned finds that on August 1, 1949, the representatives and the Union met together with the Respondent, that there was no discussion of the clauses of the proposals other than the Respondent's statement that its position had not changed and further finds that the Respondent foreclosed discussion of any clauses until the union-security question could be disposed of, that the union representative expressed the thought that the Union needed to strengthen its organization among the Respondent's employees before it could make effective its demands, and that the Union's representatives were politely invited to return .at any time for further negotiation. The undersigned so finds on all the evidence in the record considered as a whole. Conclusions on the Bargaining Conferences The' proposed contract which the Union tendered the Respondent contained all of the demands a union ordinarily makes of an employer, and, as described by the Union's representative, contained all a union could request to "a high degree," however, according to the Union's testimony, it was presented as a basis for bargaining and the Union did not expect to obtain all it asked for but stood ready to bargain. The Respondent's counterproposal was a complete denial of every measure -customarily sought by a union. If it were accepted by the Union as written it -would in effect constitute a repudiation by the Union of its very right to exist. Recalling the Respondent's testimony to the effect that its counterproposal was drawn by rewriting each paragraph of the Union's proposal, the undersigned is persuaded that the Respondent's proposal was deliberately drawn so that it could not be accepted by the Union. The very first clause in the Respondent's counterproposal was a denial of union security, which as the Respondent testified it ].new "was the closest thing to those gentlemen's hearts." By refusing to discuss anything else in the contract until the first clause was disposed of the Respondent effectively foreclosed any bargaining. By insisting on bargaining to a conclusion for a part, which it must have known was not acceptable to the Union, the bargaining by the Respondent was reduced to empty gestures which never approached real bargaining. The Act requires that the parties in the performance of a "mutual obligation" meet at reasonable times and confer in good faith.5 Insofar as time is measured by clocks and calendars it may be called tangible and insofar as the Respondent met on request with the Union and closed each conference with the invitation to return for further conferences at any time, the Respondent adhered to the tangible requirements of the bargaining section of the Act, but insofar as the Respondent confined the bargaining to only one clause of the contract , and foreclosed other discussion , and insofar as the Respondent in effect refused to confer until its denial of the vital union-security clause was completely negotiated, in the opinion of the undersigned, under all See Section 8 (d) of the Act. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the circumstances herein, the Respondent did not act in good faith with respect to the intangibles required by the Act. The Respondent's conduct at the bar- gaining table was not in accord with the duty to meet the intangible require- ment of the Act, namely good faith. The law requires an employer to bargain on all bargainable issues. To limit bargaining to a part, and to offer to meet for a limited purpose has been held by the Board to be bargaining not in good faith and hence a refusal to bargain under the Act.° The undersigned accordingly finds that by its conduct on May 1 and 27 and August 1, 1949, in its meeting with the Union's representatives with respect to bargaining for a contract the Respondent did not bargain in good faith and its conduct as hereinabove found constituted a refusal to bargain with the Union representing a majority of its employees in an appropriate unit, as required by the Act. The Respondent's Contention That Certain of the Union's Conduct Was Violative of the Act At the hearing and in its brief the Respondent admitted its legal obligation to recognize and bargain with the Union, however, the Respondent contends that the Union engaged in unfair labor practices within the meaning of the Act. Over the objection of the General Counsel the undersigned permitted the Re- spondent to adduce evidence to support its contention. On direct examination, by the General Counsel, Caldwell testified that on June 1, he telephoned Majure and asked for a conference at which Attorney Snow would not be present. Majure declined to meet under these conditions. Caldwell testified further : Q. Did you tell them you wouldn't meet with them unless they met with you without the attorney? A. No sir, I didn't tell them that. Majure testified that Caldwell asked for a meeting without the attorney's presence but was not asked to deny Caldwell's statement to the effect that he did not refuse to negotiate otherwise, nor did Majure so testify. Relying on Caldwell's testimony as above set out the Respondent in its brief makes the flat assertion that "Mr. Caldwell then refused to meet Mr. Majure for further negotiations." The record does. not support this assertion. The Respondent's brief then proceeds to argue the undenied and well-estab- lished legal proposition that the Respondent "had the right to have its repre- sentatives and select them," and closes with the following rhetorical paragraph: Those familiar with the tactics of Union business agents, and their later versions of happenings in conferences, know better than to meet them alone. The undersigned believes that this part of the Respondent's brief merely sets up a staw man to demolish. On the entire record the undersigned finds that Caldwell did request a meeting with the Respondent at which Attorney Snow should not be present and further finds that further projected meetings were not predicated on such a condition by the Union and therefore finds that by Caldwell's request as above found the Union did not violate any of the provisions of the Act. Caldwell testified that sometime after Pendergast's meeting with the Re- spondent, at a regularly called meeting of the Union, a strike was authorized against the Respondent. The reason for the strike action was the refusal of the 6 Pool Manufacturing Company, 70 NLRB 540. L. L. MAJURE TRANSPORT COMPANY .329 Respondent to ,negotiate a contract with the Union . Caldwell testified that only three of the employees of Respondent attended the meeting , at which only four members other than himself were present . Fifteen of the Respondent's em- ployees, •were members of the Union . The four members present voted the strike. Without giving prior notice to the Respondent the Union called a strike and established a picket line at the Respondent 's place of business. Only three employees answered the strike call. These served on the picket line. All the others ignored the call and did not respect the picket line. The Union's constitution and bylaws were not put in evidence . The under- signed must presume that the Union's strike action was regular. Under all the circumstances the undersigned is persuaded and finds that the three employees of Respondent who engaged in the strike had the status of unfair labor practice strikers and were entitled to all the rights accorded unfair labor practice strikers inasmuch as it has been found that the Respondent unlawfully refused to bargain with the Union and the .testimony that those engaging in the strike were motivated by the Respondent 's unlawful conduct. The undersigned so finds. During May 1949, and before the strike against the Respondent , the Union was engaged at Meridian in negotiation for a contract with various trucking companies , as a group, among them being the Dixie Highway Express Company, of which L. L. Majure was president. Majure testified that during his negotiations with Caldwell on the matter of a contract between the Respondent and the Union , Caldwell threatened to injure the Respondent's Dixie Highway Express and damage its property. Caldwell denied making the threat. The undersigned credited Caldwell. It has been found herein that the alleged threat Was not in fact made. In connection with its efforts to obtain a contract with the Meridian trucking companies, the Union struck the Dixie Highway Express on June 26, 1949, a picket line consisting of the three employees of Respondent who were then picket- ing the Respondent was established at Dixie, the three men picketing Respond- ent being moved to Dixie. The Dixie strike was settled by a signed contract in less than 24 hours and the pickets withdrawn . Picketing at the Respondent's place of business was then resumed by the same pickets as before. On July 4, the Union called a second strike, in connection with a different dispute, at Dixie and again moved the pickets from the Respondent 's plant to form a picket line at Dixie. On July 5, the Respondent obtained a temporary injunction in the Chancery Court of Lauderdale County, Mississippi . The injunction prohibited picketing of the premises of Dixie Highway Express , "in connection with the presently called strike [at Dixie] on behalf of . . . employees of Dixie Highway Express, or on account of any dispute between L. L. Majure Transport Company and its employees ...." Picketing of the Respondent's place of business was not enjoined , however, the Union did not picket the Respondent after the injunction issued. The Respondent contends that the strikes against Dixie Highway Express were called for the purpose of forcing the Respondent to sign a contract with the Union concerning its employees. In the opinion of the undersigned the record does not sustain this contention and as the Trial Examiner can find no merit therein he therefore finds that the Respondent's contention as to unfair labor practices by the Union constitutes neither a defense to the charge that the Respondent illegally refused to bargain with the Union, nor supports a charge that the Union engaged in unfair labor practices within the meaning of the Act. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Additional Conduct of the Respondent Which Constitutes Refusal To Bargain Majure testified that he promised Caldwell, apparently after their final meet- ing, "that so long as this matter was not settled, that I would treat all employees just as if they were union employees." - Apparently "this matter" refers to the charge filed by the Union in the instant case, on July 25,1949. Under date of August 24, 1949, the Respondent sent the following letter to the Union's representative : 1\Ir. James Caldwell International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, Local 591, A. F. L. P. O. Box 269 Meridian, Mississippi Dear Mr. Caldwell : RE : L. L. Majure Transport Company When you. and Mr. Pendergast were here some time ago, in connection with L. L. Majure Transport situation, you gentlemen stated you were not in position to go forward with the negotiation of a contract for L. L. Majure Transport Company. Conditions have. recently arisen making- it necessary for the Company to make some changes affecting its employees. Since you gentlemen stated there would be no further negotiations, until you had reorganized our em- ployees, we expect to proceed, as we do not think it fair, either to the men or to the Company not to make changes which we consider to be necessary. Very truly yours, L. L. MAJURE TRANSPORT COMPANY, By (s) L. E. MAJURe. The Union did not reply. Two material changes in working conditions were thereafter made by the Re- spondent, unilaterally. Majure testified that one of the changes, vacations with pay, was not granted until "well over (into) the year 1950," however Majure further testified that certain employees had asked him about granting vacations some 3 or 4 weeks before he wrote the August 24 letter. Majure testified that he considered changing the rate of pay "some few days" before -August 24. The record does not disclose the exact time an increased pay rate was made effective but it is clear that such a change was made. Majure admitted that other than to inform the Union by means of the August 24 letter that the Respondent expected to make certain changes the Union was not consulted regarding such changes or notified of them. Majure testified : Q. (By Mr. Kyle) Well, you say the matter was not settled; as far as you know though, the union was still the bargaining representative legally? A. If I hadn't known, I wouldn't have written that letter to them, Sir: Conclusion It is clear that the Respondent's letter to the Union is intended only as a self-serving document. The contemplated changes are not disclosed nor is there any invitation to negotiate. The closing sentence of the letter is, in the Trial L. L. MAJURE TRANSPORT COMPANY 331 Examiner's opinion; quite on a par with the repeated invitations extended to the Union's representatives to come back and negotiate at any time.' Under all the circumstances in the case, and on the entire record considered as a whole, the undersigned is not persuaded that the Respondent in its letter of August 24, 1949, as above related, made a bona fide offer in good faith to discuss or negotiate changes in employee working conditions with the Union and therefore finds that the unilateral changes in pay and working conditions made by the Respondent, with respect to its employees within the unit repre- sented by the Union, on and after August 24, 1949, all as above found, consti- tuted a refusal to bargain with the Union on the part of the Respondent in violation of the Act. The undersigned therefore finds on all the evidence considered as a whole, including his observation of the witnesses, that by its conduct during its con- ferences with the Union's representatives on May 4 and 27 and August 1, 1949, as hereinabove found, and by its unilateral action in making changes in the rate of pay and working conditions of certain of its employees as found herein, the Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act. B. The discriminatory refusal to reinstate There is'no dispute as to the following facts. Three of the Respondent's employees, R. E. Johnson. Leo Burt, and Joe Elmore Harris, answered the Union's strike call and engaged in picketing on and after June 17, 1949, as herein found. The Union withdrew the picket line from the Respondent's place of business .on July 5, following the temporary writ of injunction granted by the Chancery Court of Lauderdale County, Mississippi, which prohibited picketing the premises of the Dixie Highway Express Company but not the Respondent. . Caldwell testified that thereafter shortly before November 1, 1949, he requested the Respondent to reinstate Johnson in his'job. The Respondent agreed to do so. The record shows that Johnson was returned to his job by the Respondent on November 25, 1949. Caldwell further testified that thereafter on or about November 1, 1949, he asked the Respondent to return Harris and Burt to work either at their jobs or to give them employment with the Dixie Highway Express which the Re- spondent's managing partner, L. L. Majure, controlled. The Respondent in- formed Caldwell that it would not take Harris back but that it would (through L. L. Majure) find Burt employment at Dixie Highway Express. Apparently s The Respondent in its brief states : The undisputed testimony is that Mr . Caldwell terminated the second meeting of the parties and that when he terminated the meeting he was told respondent was ready to continue negotiations and that the doors were ever open to him for further negotiations. Of course, Caldwell attempted to slur respondent's invitation by stating that he was told that the doors were as open as the gates of hell. (Emphasis supplied.) The Examiner will recall that the expression used is a common expression of long standing. If used, which is denied; ( emphasis supplied ) the expression simply meant that the doors were constantly open to Mr . Caldwell for negotiations, . . . . The undersigned fails to see ' any point to the above inasmuch as the transcript record is as follows : Q. (By Attorney Snow ) Did we tell you then , and isn't that the time that I said to you , "Well, gentlemen , the doors of my office are just like the gates of hell, they're always open, come to see us whenever you get ready ," isn't that the time I said that? A. You said that on the second time. .332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burt was not thereafter employed at Dixie but obtained employment with still another trucking company. Burt testified that sometime in either October or November he telephoned the Respondent, speaking to Rice, whom he asked for his job back. Rice told Burt, "I haven't got anything at the present time" and promised to call him when work became available. He was not called. Burt also testified that sometime in July+ 1949, he obtained employment, with another trucking company but that he was employed only as an "extra" driver meaning that he had only part-time employment. He was so employed at the time he asked the Respondent for his job back. Harris testified that on or about November 1, he called at the Respondent's office and asked Rice for his job back 8 and was told that Rice "would have to see Mr. Majure." Rice told Harris that he would call him. Harris was not called. Harris was not employed at the time he spoke to Rice. The Respondent argues in its brief : - In accepting employment with others, these men severed their relations with respondent and respondent owed them no further obligation of em- ployment. You simply cannot run a business with any degree of success with employees who work for you one day and for another concern the next. You must be able to depend on your employees. Respondent had been forced to employ men to keep its business running while Mr. Burt and Mr. Harris were off working for T. S.. C. These men could not expect to return at will and to displace men who had rendered valuable service when they had not. It is, therefore, apparent that there was no discrimination on the part of respondent in not immediately giving Mr. Burt or Mr. Johnson employment, when requested in November 1949, four months after the strike was at an end. They were told that there was no opening for them at the time, others then having been employed to do the work which they formerly did. The undersigned finds no merit in this contention for the following: Conclusions It has been found herein that the Respondent unlawfully refused to bargain with the Union. The undersigned is convinced and has found . that the strike called on June 16, 1949, was caused wholly by the Respondent's unfair labor practices; namely its refusal to bargain with the Union, therefore the employees who answered the strike call were unfair labor practice strikers and entitled to the rights of their status as such . It has been well established that an unfair labor practice striker is entitled to his job on an unconditional offer to return to work, timely made. The unfair labor practices of the Respondent have not ceased. The Respondent still continues to refuse to bargain with the Union, nor has the Union ceased to press for relief. Although it withdrew its pickets the undersigned is mindful that on July 25, 1949, before its last conference with the Respondent , the Union filed the charge in the instant matter and transferred its effort from a test of economic strength to one at law. If economic pressure forced the Respondent's striking employees to seek em- ployment elsewhere it cannot be urged that they thereby abandoned the strike and lost their status as striking employees , rather, it seems to the undersigned 8 The record is clear that Rice had complete supervisory authority. There is no contention to the contrary. L. L. MAJURE TRANSPORT COMPANY 333 that their action showed that their attitude toward the strike had not changed. The. most that can be argued is that by their earnings in new employment, the employees merely reduced the amount of back pay which might be charged against the Respondent. When the Respondent refused to reinstate Burt and Harris the Respondent in effect discharged them. It cannot be argued that because the employees clearly did not understand their rights or that their representative was inept at enforc- ing them that they in any way lost their rights and status or that the strike is not still current as to them.9 Upon the entire record the undersigned finds that by its refusal to reinstate Leo Burt and Joe Elmore Harris on or about November 1, 1949, the Respondent in effect discharged them in violation of the Act and has discriminated in regard to their hire and tenure of employment, thereby discouraging membership in a labor organization and has interfered with, restrained, and coerced its employees in the exercise of.the rights, guaranteed in Section 7 of the Act.'' C. Independent acts of interference, restraint, and coercion Leo Burt testified that sometime in March 1949, "Mr. Majure asked me what Mr. Caldwell was doing, and I told him that he had already organized all of us except one man." Burt testified that Majure then asked that Burt "tell him the story, and I told him I never told him a story" and that Majure then said to him that-the trucks were-the Respondent's and that "he (Majure) didn't have to run them if he didn't want to, and I told him that's true." See E. A. Laboratories, Inc., 86 NLRB 711. io Employee W. L. Grafton , Jr., testified that after the Board -conducted election herein- before referred to, he drew a "petition" repudiating the Union , - which was signed by 12 employees. Grafton tendered the document , which was in longhand to Caldwell who refused to accept it. Grafton further testified that he then "threw away" the document. He further testified that sometime later he signed another document also repudiating the Union. Grafton testified that he did not know who drew this document or what was done with it. The document was admitted in evidence . It is typed, on legal sized paper, is couched in legal phraseology , bears 12 signatures , each witnessed by 2 signatures. There is no date on the document. . These documents have no probative value in this matter other than as they show knowledge of the defection of union membership on the part of the Respondent and the time such knowledge was acquired. C. W. Rice testified that he found the second document referred to on his desk after the election and before the. strike. Majure testified : Q. And was that ( the repudiation "petition" ) brought to you-can you tell the date that. it was brought to you? A. No, I don't remember the exact date. It was just a few days after the election was held by the National Labor Relations Board, just a very few days after, I couldn't recall just the exact date, sir. The Respondent 's brief states : Thereafter some one typed the petition , referring to the Labor Relation's Act, and twelve of the respondent's employees signed this petition , having their signature witnessed . This petition was left on Mr. Rice's desk . He, in turn, presented it to Mr. Majure. Mr. Majure had the foregoing information in mind when he undertook to talk with the Union representatives . He also had the matter of his business in mind and the possibility of working therewith. Considering that the Respondent was forearmed with knowledge that the Union would not obtain majority support from the Respondent 's employees if the Union sought to enforce any demands it might make, and in the light of subsequent events the undersigned finds in the testimony regarding the so -called petitions , added support for his belief and finding that the Respondent acted in bad faith during its conference with the Union on May 4, and thereafter. 334 DECISIONS'. OF 'NATIONAL'-LABOR` RELATIONS BOARD' Majdre•admitted `that lie asked.Burt what'Caldw'W wa'` doing and testified "as I recall it, he•didn't`tell.methat Caldwell was trying to organize the Union." 'Majure did not deny the remainder'of Burt's above-related testimony. On, the entire record, including his observation of the witnesses, the undersigned credits Burt. Joe -Elmore Harris testified that on the day of the' Board-Conducted election "just before I went in there, went in there to vote,": Rice, the Respondent's dispatcher, said to him "I guess you know which way to vote for your family."' Rice testified A. Mr. Harris came in my office the morning of the election or the day of the election and told me that he just didn't know what to do about it, wanted me to tell him what to do ; and I said, "Joe, you must forget about me, Mr. Majure and the company and the Union and everybody else except you and your wife and baby." I' said, "You use your judgment for you and your wife and baby." Inasmuch as the record does not disclose any other unfair labor practices on the part of Rice, and as the statement attributed to Rice by Harris is substan- tially'as Rice admitted it to be with the exception that Harris asked for Rice's advice, the undersigned is persuaded that at most Rice's statement under all the circumstances falls into the category of isolated statements which in themselves do not constitute a violation of the Act. However, the undersigned is persuaded and finds that by Majure's statements to, and questioning of, Burt as herein-' above found, the Respondent (a) inquired into the union activities of its em- ployees, and (b) threatened economic reprisal in the event of union organization. The undersigned finds that by the above acts and conduct of L. L. Majure, with respect to Leo Burt by the questions and statement as above found, the Re- spondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section .7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial-'relation to trade, traffic, and commerce among the several States, and tend to lead, and have led to, labor disputes burdening and obstructing commerce and the free, flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in.certain unfair labor practices within the meaning of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found the' Respondent has refused to bargain collectively with the Union as the exclusive representative of certain of its employees in an appro- priate unit, the undersigned will recommend that, upon request, the Respondent bargain-collectively with the Union as the exclusive representative of its employ- ees in an appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. It.has been found that the Respondent discriminated with respect to the hire and tenure of employment of Leo Burt and Joe.Elmore Harris by refusing to reinstate them thereby. in effect discharging them, because of their concerted activities on behalf of the Union and their 'membership therein. The under signed will therefore recommend that the Respondent offer-to Burt and Harris L. L.. MAJURE TRANSPORT COMPANY 335 each immediate and full reinstatement to his former or substantially equivalent position." without prejudice, to his seniority or other rights and privileges and make him whole by payment to him of a sum of money equal to that which he normally would have earned on unconditional offer to return to work as herein found, to the date of the Respondent 's offer of reinstatement , less his net. earn- ings.12 It is further recommended that, 'if necessary, in order to make places for Burt,and. Harris any employees, newly hired on or after June 17, 1949;.shall he discharged by.the Respondent. Finally, because of its hostility to the Union as demonstrated by, the record, 'including its discrimination against Leo Burt and Joe Elmore Harris and because in the opinion of the undersigned the unfair labor practices found reveal on the part of the, Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated and the preventive purposes of the Act may be frustrated unless the Respondent is required to take affirmative action to dispel the threat, therefore it will be recommended that the Respondent cease and desist from in any manner interfering with, restraining, or coercing its employ- ees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case the undersigned makes the following : CONCLUSIONS OF LAW 1. L. L. Majure Transport Company, Meridian , Mississippi , is a partnership between L. L. Majure and Mrs. 30 . M. Majure, , and is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, Local No. 591, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. All truck drivers employed by L. L. Majure Transport Company excluding all other employees and supervisors as defined in the National Labor Relations Act, as amended , constitute, and at all times material herein did constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 ( b) of the Act. 4. The Union was at all times material herein and now is the exclusive repre- sentative of all the employees in the above -described unit within the meaning of Section 9 ( a) of the Act. 5. By refusing to bargain collectively with the Union as the exclusive repre- sentative of its employees in the appropriate unit, the Respondent has engaged in and4s engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 13 In accordance with the Board's consistent interpretation of the term , the expression "former or substantially equivalent position" is intended to mean "former position wherever possible and if such position is no longer in existence then to a substantially equivalent position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 ; Crossett Lumber Co., 8 NLRB 440 ; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 12 Consistent with the policy of the Board the loss of pay shall be computed, on the basis of each separate calendar quarter or portion thereof during the period from Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods hereafter called "quarters " shall begin with the first day of January, April , July, and October. It will be further recommended that Respondent make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due. F. W. Woolworth Company, 90 NLRB 289. 336 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD 6. By discriminating in regard to the hire and tenure of employment of Leo Burt and Joe Elmore Harris, thereby discouraging membership in a labor organ- ization the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (3) of the Act. 7. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section -8 (a) (1) of the Act. 8. The foregoing unfair labor practices are unfair labor practices affecting commerce within the i}leaping of Section 2 (6) and (7) of the Act. [Recommended Order . omitted from publication in this volume.] ROCKAWAY NEWS SUPPLY COMPANY, INC. and CHARLES WAUGH. C a86 No. 2-CA-134. July 20,195i Decision and Order On February 21, 1951, Trial-Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that, the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions, and the General Counsel and Waugh, the charging party, filed briefs in support of the Intermediate Report. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions, modifications, and additions set forth below : ' 1. On March 7, 1950, the Respondent discharged Charles Waugh, a member of the Newspaper and Mail Deliverers' Union, hereinafter called the Union, which was the contractual representative of the Re- spondent's employees, because of his refusal, in the course of his duties, to cross a picket line established at the premises of the Nassau Daily Review Star by the Nassau County Typographical Union #915 (AFL), hereinafter called 'the Typographers. The Trial Examiner found that the Respondent thereby violated Section 8 (a) (3) and (1) of the Act. We agree. - The Respondent urges that Waugh's refusal to cross the picket line violated the no-strike clause of its agreement with the Union 1 and 1 Sec. 19-n of the contract provides that "No strikes , lockouts or other cessation of work or interference therewith shall be ordered or sanctioned by any party hereto during the term hereof except as against a party failing to comply with a decision , award or order of the Adjustment Board." 95 NLRB No. 50.