Almeida Bus Lines, Inc.

ALMEIDA BUS LINES, INC. 445 WE WILL NOT refuse to bargain collectively with General Drivers and Helpers Union Local No. 554, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bargaining representative of the employees in the following appropriate unit: All truckdrivers, yardmen, mechanics, helpers, and laborers employed by us at our plant at 4343 South 67th Street, Omaha, Nebraska, excluding all clerical employees, dispatchers, selec- tron operators, laboratory technicians, professional engineers, salesmen, watchmen, guards, and supervisors as defined in the Act. WE WILL, upon request, bargain collectively with General Drivers and Helpers Union Local No. 554, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bargaining repre- sentative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights guar- anteed them by Section 7 of the Act. JOl-INSON READY MIX Co., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Mis- souri, 64106, Telephone No. Baltimore 1-7000, Extension 731, if they have any questions concerning this notice or compliance with its provisions. Almeida Bus Lines, Inc. and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO. Case No. 1-CA-3861. May 3, 1963 DECISION AND ORDER On February 15, 1963, Trial Examiner Louis Libbin issued his Intermediate Report in the above-entitled proceeding , finding that 142 NLRB No. 52. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had engaged in and was engaging in unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, Respondent filed exceptions to the Intermediate Report and a brief in support thereof, and the General Counsel filed a brief in support of the Intermediate Report. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions 2 of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' 1 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-member panel [Members Rodgers, Fanning, and Brown]. 2 For the reasons stated in his dissent in Isis Plumbing c6 Heating Co., 138 NLRB 716, Member Rodgers would not award any interest on backpay. 8 The following note shall be added to the bottom of the notice immediately below the signature line NOTE : 'We will notify our employees who participated in the strike if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces - INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed on June 25, 1962, by Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for the First Region (Boston, Massachusetts), issued his complaint, dated August 9, 1962, against Almeida Bus Lines, Inc., herein called the Respondent. With respect to the unfair labor practices, the complaint alleges in substance that (1) at all times since October 27, 1961, the Union has been the exclusive collective-bargaining representative of all of Respondent's employees in a designated appropriate unit; (2) at all times on and after January 5, 1962, the Respondent has negotiated with the Union in bad faith and with no intention of entering into any final or binding collective-bargaining agreement; (3) on or about April 27, 1962, Respondent's employees went out on a strike caused by Respondent's unfair labor practices; and (4) by the conduct set forth in (2) supra, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act. In its duly filed answer, the Respondent denied the commission of any unfair labor practices and asserted its willingness to continue to bargain in good faith for the purpose of negotiating a Contract at any time and place selected by the Union. Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin at New Bedford, Massachusetts, on October 22 and 23, 1962. The General Counsel and the Respondent were represented at the hearing, and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. The Respondent's motion to dismiss ALMEIDA BUS LINES, INC. 447 the complaint, made at the close of the hearing and upon which I reserved ruling, is hereby denied in accordance with the findings and conclusions hereinafter made. I have fully considered the briefs filed by the General Counsel and the Respondent on December 17, 1962, the reply brief filed by the Respondent on December 20, 1962, and the reply brief filed by the General Counsel on January 14, 1963.1 Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Almeida Bus Lines, Inc., a Massachusetts corporation with its principal office and terminal in New Bedford, Massachusetts, is engaged in providing transportation by bus to the public on runs set up by the Massachusetts Department of Public Utilities. Its annual gross revenue exceeds $250,000. During the 12 months preceding the hearing, Respondent purchased from Tidewater Company gasoline, valued at more than $25,000, which was shipped directly to its New Bedford terminal from the State of Rhode Island; during the same period, Respondent purchased grease and motor oil, valued at more than $7,000, which was shipped to its New Bedford terminal directly from the State of Rhode Island; during the same period, Respond- ent also purchased buses from General Motors Corporation and parts, valued in excess of $7,000, from General Motors Truck and Coach Company of Newton, Massachusetts. For its runs in and out of Boston, Respondent uses a depot known as the Trailways Terminal in Boston. Respondent does not hold an I.C.C license for interstate travel. Southern Massachusetts Bus Lines, Inc., herein called Southern Massachusetts, and the Respondent have an office at the same address in New Bedford, Massachu- setts. Southern Massachusetts holds an I.C.C. license for interstate travel, and sometimes uses Respondent's busdrivers to operate its charter runs. The officers and directors of both corporations are the same, and all the stock of both corpora- tions is owned by John Almeida, Jr., whose wife is the president and treasurer of both corporations. During the year preceding the hearing, Southern Massachusetts ran approximately 68 interstate charter runs, from which it received revenue exceed- ing $10,000. Upon the above admitted facts, I find, as Respondent's counsel stipulated at the hearing, that Respondent is engaged in commerce within the meaning of the Act .2 H. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find, that Amalgamated Associa- tion of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues The complaint alleges, and the answer denies, that the Respondent refused to bar- gain in violation of Section 8(a) (5) and (1) of the Act. The parties are in agree- ment as to the appropriateness of the unit alleged in the complaint and as to the status of the Union as the exclusive collective-bargaining representative for all the employees in said unit. Representatives of the Union and of the Respondent met nine times during the first 5 months of 1962. However, no agreement on a contract was reached. On April 27, 1962, employees in the appropriate unit went out on strike which was still in progress at the time of the instant hearing. The sole issues litigated herein are (1) whether the Respondent bargained in good faith within the meaning of Section 8(a)(5) and (1) of the Act, and (2) whether the strike, which commenced on April 27, 1962, was caused by Respondent's unfair labor practices. ' On January 14, 1963, the General Counsel also filed a motion to expunge Respondent's reply brief. Said motion is hereby denied. 7 Almeida Bus Lines, Inc., 140 NLRB 280. In that case the Board held that Respond- ent and Southern :llaseachusetts constitute a single employer within the meaning of the Act 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The refusal to bargain 1. Respondent's unlawful conduct in opposition to the Union 3 On December 26, 1962, the Board issued its decision against Respondent, finding that Respondent violated Section 8(a)(1) and (3) of the Act in certain respects. Almeida Bus Lines, Inc., 140 NLRB 280. Specifically, the Board found that Respond- ent discriminated against employee Gilbert Jesus in violation of Section 8(a)(1) and (3) of the Act by failing to assign bus or charter runs to him after the Union won the election held on October 27, 1961, and discharged employee Joseph Olivera, the president of the Union, on December 16, 1961, to discourage union membership and activity in violation of Section 8(a)(1) and (3) of the Act. The Board further found that Respondent independently violated Section 8 (a) (1) of the Act by engaging in the following conduct: a. On October 26, 1961, the day before the election, Almeida III, the son of Mrs. Almeida and Almeida, Junior, told employee Gilbert Jesus that "if you fellows go along with the Union you're not going to get no more work, but if you go along with the Company and help us out, well, I'll give you all I can." b. Dispatcher and Foreman Floria, a supervisor within the meaning of the Act, asked Jesus the day after the election if he was going to the union meeting that night when initiation fees were to be paid. c. A week before the election, Almeida III, told employee DeMello that if the Union won his father would "take over" and it would be a "miserable place" to work. d. In December 1961, Almeida, Junior, the sole stockholder and the husband of Mrs. Almeida who was the president and treasurer, told employee DeMello that all the law required was that they " bargain" with the Union, and that they "would not sign a contract." e. In January 1962, Almeida III, told employee Rousseau that if ever again he talked to a certain union representative he would be fired. f. In April 1962, Almeida, Junior, warned an employee that if he went on strike he had "better look for another job." 2. Respondent's dealings with the Union Representatives of the Union and Respondent met nine times during the first 5 months of 1962. Except for the last two meetings in May called by the conciliation services in Boston, all meetings were held in the Superior Court House in New Bedford, Massachusetts. The sole spokesman and negotiator for the Union at all meetings was its International vice president, Frederick Fitzgerald, although Joseph Olivera was also present as a union representative after the first meeting. The only representative for the Respondent at all meetings was its local attorney, James Waldron. (a) The January meetings The first meeting was held on January 5 and lasted about an hour and a half. Fitzgerald opened the meeting by informing Waldron that he had approached Mrs. Almedia, Respondent's president and treasurer, to seek the reinstatement of Olivera and had been told to discuss the matter with Waldron. After some discussion about Olivera's discharge, Waldron stated that he would see what he could do about getting him reinstated. Fitzgerald then gave Waldron a copy of the Union's proposed con- tract, stating that they could discuss it after Waldron had had an opportunity to study it. Waldron read the Union's proposals, which constituted a complete contract cover- ing 10 typewritten pages, and stated that he would discuss them with Mrs. Almeida and then arranged another meeting. During the course of the meeting Fitzgerald stated that he had heard a rumor that the Company would walk out and not bargain if Olivera attended the meetings. Waldron replied that the rumor was false and agreed that Fitzgerald had a right to bring anyone to the meetings. The next meeting was held on January 17 and lasted all day. At the very outset, Fitzgerald asked Waldron if he had gone over the contract proposals with "the Almeida family." Waldron replied, "Yes, I did, and when they read them they hit the fan." The entire day was then devoted to a discussion of Olivera's case because Fitzgerald considered it more urgent to try to get Olivera back to work. When the • With respect to the matters set forth In this section , I am relying solely on the Board's findings and not on any testimony adduced at the instant hearing. Moreover, those findings based on conduct which occurred prior to December 25, 1961 , the cutoff date under Section 10(b) of the Act, are considered only for background purposes. ALMEIDA BUS LINES, INC. 449 meeting broke up, Waldron stated that he would talk to the "Almeida people" and would then telephone Fitzgerald about their decision. About 6 o'clock that evening, Waldron telephoned to Fitzgerald and told him that "the Almeida family" was adhering to the position of not reinstating Olivera. (b) The February 9 meeting The parties met again on February 9. This was the first meeting at which the Union's contract proposals were discussed. Fitzgerald and Waldron went over these proposals paragraph by paragraph. Waldron told Fitzgerald what Mrs. Almeida had told Waldron her position was as to each paragraph. Waldron admitted that he either quoted or paraphrased Mrs. Almeida. The meeting lasted about 6 hours. The proposals, on which agreement was reached at this meeting, in some cases after Fitzgerald's acceptance of changes by Mrs. Almeida, were essentially of a minor nature .4 No agreement was reached on any of the major items. Mrs. Almeida was opposed to any form of union security, dues checkoff, arbitration, seniority in the selection of runs, hospitalization and insurance , and to the Union's proposals for overtime pay. She was also opposed to any paid vacation, to any paid holidays, and to the Union's wage proposals. She was opposed to any provision dealing with charter work on the asserted ground that Respondent was not engaged in the charter business and performed no charter work. Fitzgerald argued the merits of the Union's proposals. Waldron, however, indicated that those were Mrs. Almeida's positions and, regardless of what his personal views in the matter might be, that was the way Mrs. Almeida wanted it. Because of a misunderstanding as to Mrs. Almeida's position on vacations, Waldron offered 1 week vacation; whereas, the Union's proposal also provided for 2 weeks after 2 years of service and 3 weeks after 10 years of service .5 With respect to wages, the Union's proposals provided for increases ranging from 25 cents an hour up to 75 cents an hour, in some cases, spread over a certain period of time, and also provided for mileage rates for operators .6 Waldron told Fitzgerald that he was authorized to offer a wage increase of 3 cents per hour across-the-board. Fitzgerald pointed out that he was not asking any more than what other companies in the area were paying and that the wages were a great deal higher in many of the Union's contracts in the area. He stated that he just could not understand an offer of 3 cents an hour. He further argued that "here is an outfit that is so poorly paid, one of the lowest in the whole area, the New England area, and here you came up with an offer of 3 cents an hour." Fitzgerald told Waldron that "it's my opinion that this is not only an insult to my intelligence but an insult to your intelligence. I think they're using you for an errand boy." Fitzgerald informed Waldron that sometime previously he had negotiated a first contract with the Peter Pan Bus Lines, Inc., of Springfield, Massachusetts, which contained a lower wage scale than in his present proposals, and, as a counteroffer, expressed a willingness to accept that contract for Respondent. At Waldron's request, Fitzgerald agreed to furnish a copy of that contract. Just before the meeting concluded, Fitzgerald told Waldron that he had heard that management had said that all they had to do was bargain and that they did not have to conclude an agreement . He further stated that it was his honest opinion that management was not bargaining in good faith with him. Waldron did not deny the rumor or the accusation. Fitzgerald then added, "I think they're looking for a strike." Waldron replied, "I think so, too." 7 (c) The March 1 meeting On March 1 , the parties met again for about 6 hours and went over the Union's proposals on which agreement had not been reached . Waldron relayed Mrs. Almeida's position on all proposals . Except for wages, her position remained un- * There still remained proposals of a minor nature to which Mrs. Almeida did not agree, as, for example , paid uniforms and paid motor vehicle licenses 5 When Waldron informed Mrs. Almeida of his offer in this respect, she reminded him that she had opposed any paid vacations but decided not to withdraw his offer. ° Respondent 's wage rates at that time were as follows , operators , $1 50 per hour; mechanics , $1 47 to $2 07 per hour: maintenance men, $1 22 per hour ; cleaners, $1 22 per hour ; and ticket agents , $1.22 per hour. 7 The findings in this paragraph are based on the credited and uncontradicted testimony of Fitzgerald. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changed in all respects. When the parties reached the paragraph on wages, Waldron stated that he was authorized to increase his offer by 2 cents, making it a 5-cent- per-hour wage increase across-the-board. Fitzgerald pointed out that this was still a "far cry" from the wages paid in the industry and repeated that it was an insult to the intelligence of Waldron and Fitzgerald to come down with such an offer. Fitzgerald added, "they're not bargaining in good faith; they haven't bargained in good faith; they keep sending you back with the same thing all the time." During the course of the meeting, Fitzgerald handed Waldron a copy of the Peter Pan contract, which he had mentioned at the previous meeting and which had been negotiated in 1959, and again announced that he would forgo all the provisions of his proposed contract if Respondent would accept the Peter Pan contract. Waldron took the contract and agreed to look it over. (d) Meetings with conciliators On March 1, the union members voted to go out on strike. The next day, Fitzgerald notified the conciliation services about the dispute. All further meetings were then arranged by the conciliators. The parties met with Federal and/or State conciliators on April 13, 18, and 25. The strike began on April 27. During the strike, two more meetings were held with the conciliators on May 1 and 31. No progress toward reaching an agreement was made at any of the meetings. At the April 13 meeting, which lasted about 2 hours, the conciliator was informed of the positions of the parties, but no specific clauses, as such, were discussed. In response to Fitzgerald's question, Waldron replied that he had discussed the Peter Pan contract with Mrs. Almeida and stated that it was unacceptable to her because it contained the same objectionable provisions, having reference to such matters as union security, arbitration, and seniority in selection of runs. At the April 18 meeting, Waldron stated that he was willing "to bend" more on wages if there was some "bending" on the Union's part on other provisions .8 How- ever, he made no specific offer and gave no indication of any specific amounts or conditions. At the April 25 meeting, Fitzgerald told Waldron that unless they could reach an agreement, the men were going to strike on April 27, and again offered to accept the 1959 Peter Pan contract. Before the meeting adjourned, Fitzgerald stated that it did not look like they were ever going to get a contract, that they were not bargaining with him in good faith, and that they were not interested in whether or not we have a contract. Waldron did not take issue with these accusations. On April 27, the employees went out on strike and began picketing Respondent's terminal. At the May 1 meeting, all discussions were through the conciliators. There were no face-to-face discussions between the parties At the May 31 meeting, Waldron made the statement that the Company was now in the position where it had to give its employees a wage increase. However, he gave no indication of the specific amount of the increase or the date when it would be granted. In order to settle the matter and get the men back to work, Fitzgerald offered to submit all outstanding issues to arbitration. Waldron replied that he would have to discuss the proposition with Mrs. Almeida, and would let him know After an unsuccessful attempt to reach Fitzgerald, Waldron informed the conciliators that Mrs. Almeida was unwilling to submit the issues to arbitration. 3. Respondent's unilateral actions About the middle of June, all the employees were assembled at noon. These consisted of strike replacements and those who had not joined in the strike. At Mrs. Almeida's request and in her presence, Waldron announced an immediate wage increase of 10 cents an hour, and promised that an additional increase of 5 cents an hour would be granted at the end of the season in September if business held up. Waldron admittedly had never offered more than 5 cents an hour in the negotia- tions with Fitzgerald. Nor admittedly had Waldron ever informed Fitzgerald or any other union representative that Mrs. Ameida was prepared to give the employees a 10-cent-an-hour wage increase with a promise of an additional 5 cents at the end of the season. Fitzgerald credibly testified, without contradiction, that he was not aware of this increase and promise until he heard the testimony to that effect at the instant hearing. 8 At the hearing, Waldron testified that he was authorized to go up to 25 cents an hour, to be spread over 22 months. He admitted however that he never made this authority known to the Union. ALMEIDA BUS LINES, INC. 451 4. Concluding findings 9 I am convinced and find that Respondent 's conduct, in its totality, demonstrates that its intention or state of mind in entering upon and participating in the negotia- tions was not of good faith, as required by Section 8(a) (5) of the Act.10 As the Board found in the prior proceeding (see section 1, supra), both before and after the Union won the election in October 1961 . Respondent engaged in unfair labor practices violative of the Act. Some of Respondent's conduct in this regard has a direct bearing on Respondent's lack of good faith in its dealings with the Union. Thus, while Fitzgerald and Waldron were taking steps in December 1961 , to arrange a specific date for their first meeting, Mrs. Almeida, Respondent's president and treasurer, unlawfully discharged Joseph Olivera, the union president at Respondent's terminal, in order to discourage union membership and activity, as the Board found. Such conduct, engaged in at the very threshold of negotiations by the person vested with the sole authority to determine the wages, hours, and working conditions for Respondent's employees, is hardly consonant with an attitude of approaching nego- tiations in good faith and with a sincere desire and willingness to make reasonable efforts to conclude an agreement. Indeed, during the same period, Almeida, Junior, the husband of Mrs. Almeida and sole stockholder of Respondent for whose conduct the Board found Respondent liable, told an employee that all that the law required was for Respondent to bargain with the Union and that they would not sign a contract, as the Board also found. Mrs. Almeida continued to discriminate against the Union's president after the representatives of the Union and Respondent began to meet. Thus, the first two meetings between Waldron and Fitzgerald were held in January 1962, and were devoted entirely to Olivera's case, with Fitzgerald making a determined effort and a long and earnest plea for his reinstatement. Mrs. Almeida, however, steadfastly adhered to her unlawful position, and refused to authorize the reinstatement of the union president whom she had discriminatorily discharged. In addition, during the same month, Almeida III, Mrs. Almeida's son for whose con- duct the Board found Respondent liable, threatened an employee with discharge if ever again he talked to a certain union representative, as the Board also found. Finally, in April, while negotiations were still in progress but after the Union had taken a strike vote, Almeida, Junior, warned an employee that if he went on strike he had "better look for another job," as the Board further found When other con- duct disclosed by the record, as hereinafter pointed out, is considered in conjunction with and in the light of all the foregoing , the inference is warranted that while the Respondent complied with the purely formal requirements of collective bargaining by meeting with the Union and discussing contract proposals, it did so without any genuine intention or sincere desire or reasonable effort to reach agreement on a contract and from the very beginning failed to fulfill its obligation to bargain in good faith." The clearest insight into Respondent's conduct of the negotiations with the Union is provided by Mrs. Almeida's unilateral action , following the breakdown of ne- gotiations during the strike, in granting the employees a wage increase of 10 cents an hour with a promise of an additional increase of 5 cents an hour a few months later if business held up. Such conduct colors the entire negotiations and convinc- ingly demonstrates that the negotiations were not conducted in good faith by Re- spondent from the very beginning . 12 Contrary to Respondent's assertion in its brief, wages continued to be one of the more important items in issue. As previously noted, at no time had Mrs. Almeida authorized Waldron to offer the Union more than a 5-cent-an-hour wage increase. Waldron admitted that at no time did he make any specific unconditional offer above that. Nor admittedly did Waldron ever inform Fitzgerald or any other union representative that Mrs. Almeida was prepared to give the employees a 10-cent-an-hour wage increase with a promise of an additional 5 cents an hour. Thus, Mrs. Almeida unilaterally granted the employees a wage increase in an amount twice as high as that ever offered to the Union. The mere fact that the employees may have been justly entitled to such an increase, as Re- 91n arriving at these findings, I have given no consideration to General Counsel's Exhibits Nos. 7, 8, and 9. 10 See, e g, N.L.R B v Reed & Prince Manufacturing Company, 205 F 2d 131, 139-140 (C A 1), cert denied '346 U S 887; N.L R B v Fitzgerald Mills Corporation, 313 F. 2d 260 (CA 2). it See , e g, Reeves Broadcasting & Development Corporation (WHTN-TV), 140 NLRB 466 >a See, e g, Pant Milling Company, 117 NLRB 1277, 1278, 1282, enfd. 272 F. 2d 773 (C A 5) , N L R B. v Katz, 369 U ^S. 736 712-5-18-G4-voi 142-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent asserts in its brief, does not excuse her unilateral conduct. The Supreme Court has held that such conduct "conclusively manifested bad faith in the negotia- tions . An employer is not required to lead with his best offer; he is free to bargain. But even after an impasse is reached he has no license to grant wage increases greater than any he has ever offered the Union at the bargaining table, for such action is necessarily inconsistent with a sincere desire to conclude an agreement with the Union." N.L.R.B. v. Benne Katz, etc., 369 U.S. 736, 745.13 That such was Respondent's state of mind throughout the negotiations is also apparent from other factors.14 For example, the powers of the negotiator is a relevant consideration in this regard. Waldron was Respondent's sole representative and negotiator at all meetings. He testified that he conferred with Mrs. Almeida for her opinions and instructions before and after each meeting. He admitted that his position and proposals to Fitzgerald were predicated exclusively on Mrs. Almeida's instructions, that he had no authority to vary from those instructions, and that he never offered anything to Fitzgerald which was not authorized by Mrs. Almeida first.ib Except in the matter of wages, he had been given no leeway and had no authority to offer or agree to any different proposals without obtaining Mrs. Almeida's prior approval. While a bargaining representative is not required to have plenary authority, in this case however, unlike Fitzgerald, Waldron had no authority on his own initiative to depart tentatively from Mrs. Almeida's fixed and predetermined positions on any items or tentatively to accept commitments which varied from Mrs. Almeida's prior instructions, all subject to final approval by his principal, Mrs. Almeida. Waldron's statements to Fitzgerald during the meetings concerning the various contract proposals indicated that his authority was limited to the transmittal of Mrs. Almeida's positions, to listening to and discussing the Union's positions, to reporting back to Mrs. Almeida what had transpired, and to seeking further instructions. Indeed, Waldron admitted that in these meetings he either quoted or paraphrased Mrs. Almeida's views on the contract proposals and that his authority consisted of doing "her speaking." It was this kind of procedure which at various times evoked from Fitzgerald such exclama- tions as "they're using you for an errand boy"; management was not bargaining in good faith"; and "they keep sending you back with the same thing all the time." I am convinced and find that the manner in which Mrs. Almeida circumscribed the authority of Waldron, Respondent's sole representative and negotiator at all meetings, created an obstacle to the bargaining process and is further indicative of a state of mind lacking in good faith and of an intent to conclude no agreement.16 Respondent's wage offers are also indicative of its lack of good faith in the negotiations. Waldron admitted that Mrs. Almeida had told him that the employees had not had a wage increase for about 31/z years, that Mrs. Almeida had been desirous of giving the employees a wage increase for over 2 years but had been dissuaded by him from doing so because of the existence of a union election campaign each year. Simultaneously with the conduct of the negotiations, Mrs. Almeida again pressed upon Waldron the need for granting the employees a wage increase and was again dissuaded by him from doing so because negotiations were still in progress. Finally, by the end of May, Mrs. Almeida informed Waldron that she was be- coming desperate and that she just could not continue any longer without giving the employees a wage increase, that she already had a strike on her hands and did not want any further trouble. Despite the above admitted facts, Waldron was authorized to offer a wage increase first only of 3 cents an hour and then only of 13 Indeed, the Supreme Court has also held in the Katz case, supra, that such conduct constitutes a per se violation of Section 8(a)(5) of the Act. However, I am making no such finding here because the complaint did not allege this conduct to be an in- dependent unfair labor practice. This does not preclude me from relying on such conduct as evidencing Respondent's bad faith in the negotiations. 11 The mere fact that such factors, as well as the unilateral wage increase, were not specified in the complaint as constituting the respects in which the Respondent failed to bargain in violation of the Act, does not preclude me from considering them in deter- mining whether Respondent satisfied the statutory requirements. The complaint alleged that Respondent violated Section 8(a) (5) of the Act by negotiating with the Union in bad faith and with no intention of entering into a final agreement. Respondent did not ask the General Counsel to particularize the respects in which it negotiated in bad faith. All the factors which I am considering are properly encompassed within the allegation of the complaint and were fully litigated on that basis, without objection by Respondent. is The only exception was when Waldron mistakenly believed that Mrs. Almelda had authorized 1 week vacation, as previously noted ii See, e g , Fitzgerald Mills Corporation, 133 NLRB 877, 881, enfd. 313 F. 2d 260 (C A. 2). ALIIEIDA BUS LINES, INC. 453 5 cents an hour, offers which Fitzgerald on both occasions characterized as an "insult" to the intelligence of Waldron as well as Fitzgerald. At no time was Waldron authorized to offer an unconditional wage increase of more than 5 cents an hour. Nor admittedly did Waldron at any time advance any claim of Respondent's financial inability to pay any higher wages. Indeed, Waldron admittedly gave no explanation to Fitzgerald for Mrs. Almeida's failure to offer more than 5 cents an hour.17 Yet, as previously noted, as soon as negotiations had broken off, Mrs Almeida instructed Waldron to announce to the employees a wage increase of 10 cents an hour, twice the amount which Waldron was ever authorized to offer to the Union, plus a promise of an additional 5 cents an hour at the end of the season in September if business held up. In view of the circumstances hereinabove detailed, it is not unreasonable to conclude that if Mrs. Almeida were genuinely interested in making a sincere effort to arrive at an agreement, she would have authorized Waldron to offer an un- conditional wage increase in an amount at least equal to that which she unilaterally granted almost immediately upon the breakdown of negotiations. Her failure to do so further reflects her intention or state of mind in the negotiations as not being one of good faith. Further evidence of Mrs. Almeida's lack of good faith is demonstrated by her position with respect to charter work. Mrs. Almeida refused to authorize Waldron to discuss or consider any proposals concerning charter work on the asserted ground that Respondent was not engaged in the charter business. This was technically correct in the sense that the corporate entity which held the I.C.C. license and performed the charter work was the Southern Massachusetts Bus Lines, Inc., a corporation which together with the Respondent constituted a single employer within the meaning of the Act, as the Board found in the prior proceeding (140 NLRB 280). However, as the undisputed evidence in this record and the Board's findings in the prior proceeding disclose, Respondent's employees were assigned to charter runs on Respondent's buses by Respondent's dispatcher, and were paid by Respondent for the time spent in operat- ing the charter buses. While it may be true that technically Respondent's buses were leased to the Southern Massachusetts Company on these occasions and that there may have been some bookkeeping accounting between the two companies, the fact remains that operating charter buses was a task performed by Respondent's em- ployees. As such work constituted a term or condition of their employment with Respondent, it was a mandatory subject for collective bargaining, regardless of the corporate entities involved. Mrs. Almeida's seizure upon the corporate technicalities to refuse to authorize Waldron to consider or discuss any proposals relating to charter work, was not only by itself an unlawful refusal to bargain but also reflects adversely upon her entire attitude toward the negotiations and further demonstrates a lack of any sincere desire or willingness to make reasonable efforts to reach an agreement. Mrs. Almeida's intention and state of mind in the matter of the negotiations with the Union is further revealed by Waldron in the following respects. On several occasions during the negotiations, Fitzgerald accused management of not bargaining in good faith and of having no sincere desire to conclude an agreement. Waldron never denied these accusations to Fitzgerald. Thus, at the February 9 meeting, Fitzgerald stated that he heard that management had said that all they had to do was bargain and that they did not have to conclude an agreement; Fitzgerald added that it was his honest opinion that management was not bargaining in good faith with him. Waldron neither denied the rumor or the accusation. Indeed, when Fitzgerald went on to state that he thought "they're looking for a strike," Waldron concurred and replied, "I think so, too." At the March 1 meeting, Waldron again remained silent when Fitzgerald accused management of not bargaining in good faith. And at the April 25 meeting, where Fitzgerald pointed out the need for reaching an agreement to avoid the strike scheduled to commence 2 days later, Waldron again did not take issue with Fitzgerald's observations that it did not look like they were ever going to get a contract because management was not bargaining in good faith and was not interested in whether or not they had a contract. When the sole negotiator affirmatively concurs that management was looking for a strike and remains silent in the face of the Union's repeated accusations that management was not bargaining in good faith and had no desire or intentions of arriving at an agreement, it demonstrates management' s "intent . . to reach no agreement." 18 Respondent contends that the factors which I have considered did not play an important role in the negotiations and that an impasse would have been reached in 17 Nor did Waldron at any time disclose that he was authorized to offer as much as 25 cents an hour, spiead over a certain period, if the Union would yield on certain other -demands. 7s N.L R B. v. Fitzgerald Mills Corporation, supra 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any event because of Fitzgerald 's position on the noneconomic proposals to which Respondent would not accede. I find no merit in these contentions as a defense to Respondent's failure to bargain as required by the Act. In the first place, we are now in no position to determine how important a part any one factor may have played in keeping the parties from concluding an agreement. Indeed, even Fitz- gerald's testimony at the hearing as to what he regarded as must items cannot be taken as conclusive of what might have happened in the give and take of bona fide collective bargaining. In sum, there is just no way at this time of accurately de- termining what might have happened in the negotiations if the Respondent had bar- gained in good faith with a sincere desire and reasonable effort to conclude an agreement. While there is no guarantee that all issues would have been resolved, there is a reasonable likelihood that agreement would have been reached on more items. And as more items are agreed upon , the area which remains in dispute be- comes narrower, thereby increasing the likelihood of final agreement. Moreover, at the time when the unilateral wage increase was given , the union members were in a position where they "may have been more willing to make concessions to com- promise the matters in dispute." 19 By that time, they had been out on strike for almost 2 months, and the strike had proved to be economically ineffective. There is no telling what position they might have taken had Respondent at that time offered the Union the 10-cent-an-hour increase with the promise of an additional 5-cent increase. For, in the last analysis, the union members had the authority to accept Respondent's proposals, with or without Fitzgerald's approval. Finally, the mere fact that the parties might still have reached a bona fide impasse even if Respondent had bargained in good faith with a sincere desire and reasonable effort to conclude an agreement, does not excuse Respondent for its failure to conduct the negotiations in accordance with the statutory requirements. I find that at least since February 9, 1962, the first meeting at which the Union's contract proposals were discussed, Respondent refused to bargain with the Union within the meaning of Section 8(a)(5) and (1) of the Act. C. The strike commencing April 27 After the bargaining session of February 9, the Union held a meeting at which Fitzgerald reported to the membership concerning the progress of the nego- tiations. He told the men about management's wage offer and positions with respect to the various union contract proposals. On at least three or four occasions during the course of the meeting, statements were made by the members to the effect that management had said they were going to bargain but did not have to reach an agreement and that it looked like they did not want to reach an agreement with us. After the bargaining session of March 1 , Fitzgerald again reported the status of the negotiations to the membership at a union meeting held that evening. The members rejected Respondent's offer of a 5-cent-an-hour wage increase. Statements similar to those made at the prior meeting concerning management 's attitude toward the negotiations , were again voiced. Members also expressed the view that management was not bargaining in good faith with them and that they had to do something about it. A strike vote was requested. The men voted by secret ballot to go out on strike. On April 27, the men did, in fact, strike and commenced picketing Respondent's terminal. The strike was still in progress at the time of the instant hearing.20 Upon consideration of the foregoing and the entire record as a whole, I am con- vinced and find that the strike was substantially motivated by Respondent's failure to bargain in good faith and hence was an unfair labor practice strike at all times. The fact that the strike may also have had economic objectives does not destroy or detract from its status as an unfair labor practice strike.21 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in con- nection with the 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 to labor disputes burdening and obstructing commerce and, the free flow thereof. '9 N.L R.B. v United States Cold Storage Corp., 203 F. 2d 924, 928 (CA. 5), cert. denied 346 U S. 818. 20 The findings in this paragraph are based on the credited and uncontradicted testi- mony of Fitzgerald and Olivera 21 See, e g, N.L.R B. v. Fitzgerald Mills Corporation, supra ALMEIDA BUS LINES, INC. V. THE REMEDY 455 Having found that the Respondent has engaged in unfair labor practices in viola- tion of Section 8(a)(5) and (1) of the Act by refusing to bargain collectively in good faith with the Union as the exclusive representative of its employees in an appropriate unit, I will recommend that the Respondent cease and desist from engaging in such unfair labor practices and, upon request, bargain collectively with the Union concerning rates of pay, wages, hours, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. I have also found that the strike which commenced on April 27, 1962, was caused by Respondent's unfair labor practices in failing to bargain collectively in good faith with the Union and hence was an unfair labor practice strike. I will therefore recommend that, upon an unconditional application, Respondent offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who participated in the strike which began April 27, 1962, and have not already been reinstated, dismissing, if necessary, persons hired by Respondent on and after April 27, 1962. McGregor & Werner, Inc., 136 NLRB 1306; Brown Transport Corp., 140 NLRB 954. I will also recommend that Respondent make whole the foregoing employees for any loss of pay suffered, or which they may suffer, by reason of Respondent's refusal, if any, to reinstate them in the above-described manner, by payment to each of them of a sum of money equal to that which each normally would have earned as wages during the period from 5 days after the date on which the employee unconditionally applied for reinstatement to the date of Respondent's offer of reinstatement , less his net earnings, if any, during said period, with backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289, 291-294. Interest at the rate of 6 percent per annum shall be added to backpay to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization within the meaning of the Act 2. All employees of Respondent employed at its New Bedford, Massachusetts, terminal including busdrivers , garage employees , mechanics, greasers, washers, and maintenance employees and ticket sellers but excluding office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since October 27, 1961, the Union has been the exclusive repre- sentative of all the employees within said appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment, within the meaning of Section 9(a) of the Act. 4. By refusing to bargain in good faith with the Union on and after February 9, 1962, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By said conduct the Respondent has also interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent , Almeida Bus Lines, Inc., New Bedford, Massachusetts , its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Amalgamated Associa- tion of Street , Electric Railway and Motor Coach Employees of America , AFL-CIO, as the exclusive representative of its employees in the appropriate unit described below: All employees at Respondent 's New Bedford, Massachusetts , terminal including busdrivers, garage employees , mechanics, greasers , washers, and maintenance em- 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees and ticket sellers but excluding office clerical employees, guards, and super- visors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union, as the exclusive representative of the employees in the aforestated appropriate unit, with respect to rates of pay, wages, hours of employment, or other conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who participated in the strike which began April 27, 1962, and have not already been reinstated, dismissing, if necessary, persons hired by Respondent on or after April 27, 1962. (c) Make whole, in the manner set forth in "The Remedy" section of the Inter- mediate Report, the employees specified in the preceding paragraph for any loss of pay suffered or which they may suffer by reason of Respondent's refusal, if any, to reinstate them in the manner provided. (d) Preserve and, upon request, make available, to the Board or its agents for examination and copying all records necessary to analyze and compute the amount of backpay, if any, which may be due under" The Remedy" section set forth in the Intermediate Report. (e) Post at its terminal in New Bedford, Massachusetts, copies of the attached notice marked "Appendix A.1122 Copies of said notice, to be furnished by the Regional Director for the First Region (Boston, Massachusetts), shall, after being duly signed by a representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the date of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.23 zd If this Recommended Order is adopted by the Board, the word "a Decision and Order" shall be substituted tor the words "the Recommended Order of a Trial Examiner" do the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order" In the event that the Recommended Order be adopted by the Board, this provision shall be modified to read. "Notify said Regional Director in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith " APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an agreement is reached, embody it in a signed contract. The bargaining unit is: All employees at our New Bedford, Massachusetts, terminal including busdrivers, garage employees, mechanics, greasers, washers, and mainte- nance employees, and ticket sellers but excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL, upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority AMERICAN BERYLLIUM COMPANY, INC. 457 or other rights and privileges, to all our employees who participated in the strike which began April 27, 1962, and who have not already been reinstated, dis- missing, if necessary, all persons hired on or after April 27, 1962. WE WILL make each such employee whole for any loss of pay suffered by him as a result of our failure, if any, to reinstate him within 5 days after such unconditional application. WE WILL NOT, by refusing to bargain in good faith, or in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization , to form, 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 other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. ALMEIDA Bus LINES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting,. and must not be altered, defaced , or covered by any other material. Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts , 02108, Telephone No. Lafayette 3-8100, if they have any questions concerning this notice or compliance with its provisions. American Beryllium Company, Inc. and International Associa- tion of Machinists, AFL-CIO, and Local Lodge 1767, Peti- tioner. Case No. 12-RC-19389. May 3, 1963 SUPPLEMENTAL DECISION AND ORDER CLARIFYING CERTIFICATION OF REPRESENTATIVES On November 9, 1961, the Regional Director for the Twelfth Region issued a certification of representatives in the above-entitled proceeding, certifying the International Association of Machinists, AFL-CIO, as the bargaining representative for the following unit of the Employer's employees : All production and maintenance employees including plant clericals and inspectors at the Employer's Sarasota, Florida, plant; and excluding all office and office clerical, professional employees, technical employees, guards, and supervisors as de- fined in the Act. On October 29, 1962, the Petitioner filed a motion for a Decision and Order Clarifying Certification, alleging that the Employer's timekeepers properly belong in the unit as plant clericals, and that, the Employer refuses to recognize that these timekeepers belong in the unit or to bargain with the Petitioner on matters affecting their status. On November 6, 1962, the Employer filed its response to the Petitioner's motion for clarification of the certification alleging that the timekeepers are not plant clerical employees and are not appro- priately part of the bargaining unit. 142 NLRB No. 54.