Liberty Food Distributors

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Independent herein, are labor organizations within the meaning of Section 2(5) of the Act, admitting to membership employees of the Respondent. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , as detailed above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 4. By refusing to hire applicants who filed charges against it, Respondent has violated Section 8 (a) (4) of the Act. 5, The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Hy Greenspun and Harry Braymes, t/a Liberty Food Distribu- tors and Warehouse Employees Union , Local 730, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 5-CA-0301. September 18, 1963 DECISION AND ORDER On July 11, 1963, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter the Respondents filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint in the present case was issued on December 31, 1962, upon charges filed by Warehouse Employees Union , Local 730, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the 144 NLRB No. 68. LIBERTY FOOD DISTRIBUTORS 645 Union.' As amended at the hearing, it alleges that the Respondents, Hy Greenspun and Harry Braymes, trading as Liberty Food Distributors, committed unfair labor practices affecting commerce within the meaning of Sections 8 (a) (1) and (5) and 2(6) and (7) of the National Labor Relations Act, as amended (29 U.S.C., sections 151 et seq.) by refusing to bargain in good faith with the Union as the duly certified exclusive bargaining representative of an appropriate unit of the Respondents' em- ployees within the meaning of Section 9(a) and (b) of the Act. Specifically, the complaint, as amended, asserts that on and since about May 14, 1962, the Respond- ents "negotiated with the Union in bad faith and with no intention of entering into any final or binding collective-bargaining agreement, by among other acts, unilaterally granting wage increases to employees in the unit, thereby by-passing the collective- bargaining representative and by unreasonably delaying negotiations." In their answer, the Respondents deny the commission of the unfair labor prac- tices alleged by the complaint. They further assert that the Respondents have "bargained with the Union and will continue to bargain with the Union"; that they have "met with the Union when requested and replied to every letter or proposal"; and that "no [wage] increases were given which were not promised prior to the time the Union indicated its interest in organizing these employees and which were not part of an established program." Pursuant to notice, a hearing was held at Washington, D.C., on April 4, 1963, before Trial Examiner William F. Scharnikow. The General Counsel and the Respondents appeared by counsel and the Union by its representatives, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Although advised of their rights to do so, none of the parties submitted oral argument at the hearing or a brief since the hearing closed. 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 The Respondents are a partnership maintaining their place of business in Brent- wood, Maryland, where they are engaged in the wholesale distribution of foodstuffs. During a representative 12-month period, the Respondents transported goods and materials of a value exceeding $50,000 from their place of business to points outside the State of Maryland. I find that the Respondents are engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to entertain jurisdiction in the present case. II. THE LABOR ORGANIZATION AND ITS STATUS AS EXCLUSIVE BARGAINING REPRESENTATIVE OF AN APPROPRIATE UNIT OF THE RESPONDENTS' EMPLOYEES Warehouse Employees Union, Local 730, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union) is a labor organization within the meaning of Section 2(5) of the Act. On December 20, 1961, in accordance with the results of an election conducted by the Board's Regional Director upon the Union's petition and the Respondents' and Union's consent in Case No. 5-RC-3682,2 the Board certified that the Union had been designated and selected as collective-bargaining representative by a ma- jority of the Respondents' employees and was therefore the exclusive bargaining representative of all employees in an appropriate bargaining unit consisting of all employees employed by the Respondents at their Brentwood, Maryland, warehouse, but excluding all office clerical employees, watchmen, guards, professional em- ployees, and supervisors as defined in the Act. Upon the facts and determination thus certified by the Board in Case No. 5-RC- 3682 on December 20, 1961, and upon my conclusion from the evidence that the Respondents refused to bargain with the Union in violation of Section 8(a) (5) of the Act during the year following the Board's certification, I conclude that on and at all times since December 20, 1961, the Union has been, and is, the exclusive bar- 'The charges were filed on November 13, 1962, and served on the Respondents on No- vember 14, 1962. The complaint was Issued on December 31, 1962, and served on January 2, 1963. 2 None of the proceedings in Case No. 5-RC-3682 have been published in the printed volumes of the Board's Decisions and Orders. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining representative of all the Respondents' employees in the aforesaid appropriate bargaining unit, within the meaning of Section 9(a) and (b).3 III. THE UNFAIR LABOR PRACTICES On January 5, 1962, Henry G. Butler, the Union's secretary-treasurer, mailed a form of proposed contract to the Respondents and, in the letter accompanying the form, requested a conference on January 11. In a letter to Butler dated January 19, Morris D. Schwartz, the Respondents' attorney, acknowledged receipt of the form of agreement and informed Butler that "if you wish to discuss the situation of Liberty Food Distributors with me, I would be happy to arrange a mutually satisfactory appointment." On January 26, and again on February 13, Butler met with Attorney Schwartz at the latter's office and discussed the terms of the contract proposed by the Union as well as a list of the Respondents' employees, showing their hourly rates and the hours they worked On February 20, Attorney Schwartz informed Butler by letter that he was "willing to recommend" a 2-year contract "based upon the present wages and hours, health and welfare to cost no more than $400 per year," and providing for five holidays and annual vacations of 1 week or 2 weeks for all employees depending upon whether their respective periods of service with the respondents were less or more than 5 years. Schwartz ended his letter with the statement: "If you can proceed with this proposition, which is the best I am able to make at this time, please let me know and we can get together to work out all the other details " The members of the Union, however, rejected this "proposition" and on March 16 Butler wrote a letter to Schwartz setting forth the following specific counterproposals: (1) a health and welfare plan at an hourly cost of 5 cents; (2) paid vacations of 1 and 2 weeks after 1 and 3 years' service, respectively; (3) eight paid holidays; (4) initial hourly pay rates of $1.82 for truckdrivers and $1.70 for warehousemen, to be increased to $1.99 and $1.86, respectively, on September 12, 1962; and (5) guaran- tees of a 40-hour, 5-day workweek, with overtime computed on a daily or weekly basis, whichever was the higher. In passing, it should be noted that the Respondents' payroll records show that the highest hourly pay of any of the employees in the bargaining unit was then $1.42, and that the Union thus proposed initial pay increases of 40 cents and more per hour. Butler concluded his letter of March 16 by saying: I would appreciate an immediate reply as this proposal is our last proposal and I have been given the authorization by the employees to use every lawful economic measure should the Company refuse this proposal. Please do not accept this as a threat but rather a fact and I trust that your clients will see the wisdom and authorize you to complete the negotiations and sign a contract. After mailing this letter, Butler made several telephone calls to Schwartz. In the first of these telephone conversations, Schwartz said his clients were out of town. On March 27, however, he told Butler his clients returned but "were not in any posi- tion to make a greater offer than the one previously rejected by the members of the union." Butler thereupon suggested calling in "the Federal Mediation and Concilia- tion Service" and Schwartz demurred "because the Federal Mediation and Con- ciliation Service could not pick up the company's losses." Upon Butler's request, Schwartz agreed to contact his clients but said "he felt reasonably sure the [Respond- ents'] offer would not be changed." But the Union received no further word from the Respondents or from Schwartz and, in the second week in May, Butler visited the Respondents' warehouse, in- troduced himself to Respondent Greenspun, and said the Union "wanted a meeting right away . . . to enter negotiation." Greenspun said that the Company "could not afford a union," that Butler "could wait six months and then come back," and, according to Butler's testimony which I credit, "pleaded" with Butler "not to push the issue [because] the men were happy and he could not afford to give any more money but we could contact his lawyer." On June 13, 1962, having had no further word from the Respondents or Schwartz, Butler wrote another letter to Schwartz, stating that the Union was dropping its request for a health and welfare plan and proposing, instead, a 10-cent-an-hour wage increase for the period of a 2-year contract. On the next day, June 14, Schwartz replied to Butler with the following letter: I have your letter of June 13, 1962, advising me that you will accept the proposal in my letter of February 20, 1962, with some minor changes, partic- 3 Ray Brooks v. N.L.R.B., 348 U S. 96; Franks Bros Company v. V.L.R B., 321 U. S. 702. LIBERTY FOOD DISTRIBUTORS 647 ularly an across-the-board increase of 10 cents an hour for the two-year period in lieu of the Health and Welfare. You will recall that my letter of February 20 offered a two-year contract based on present wages and hours and certain specifications relative to vacations and holidays. On March 16, 1962, you replied to my letter of February 20, and after a brief discussion on the phone, you told me you were drafting a contract which could be submitted to cover all the details, and I have been wait- ing for that draft since early April or May. Is your letter of June 13, 1962, a departure from the procedure you suggested or am I still supposed to receive a draft of the proposed contract? On June 15, immediately upon receipt of Schwartz' letter, Butler forwarded to Schwartz a complete list of the Union's amendments of the contract proposal it had originally sent to the Respondents on January 5, including a proposal for a 10-cent- per-hour increase. On June 26, 1962, 11 days later, Schwartz wrote to Butler: Before presenting the amendments you sent me on June 15, 1962, I wish to point out that this proposal varies from my letter of February 20, 1962, in that, although it eliminates health and welfare, it provides for a 10-cent per hour across-the-board increase. I would like to know whether this is firm or negotiable. To this, Butler replied to Schwartz by letter on June 29 that the 10-cent-per-hour increase proposed by the Union was "a negotiable item." Then, hearing nothing from Schwartz, Butler telephoned Schwartz on July 20. Schwartz said "his clients had returned again and [their] offer was no different." On August 29, however, Schwartz wrote Butler an inquiry as to whether "the Union would be agreeable to a 5-cent per hour increase without a health and welfare contribution" by the Respondents under a contract for "six months without automatic renewal." Although Schwartz stated that the Respondents would accept the "arbi- tration clause" set forth in the form of contract submitted by the Union, he rejected the Union's proposals as to hours of work, holidays, vacations, union security, sick leave, checkoff, and the designation of one of the employees as a "shop steward." On September 11 Butler wrote Schwartz, stating that he would recommend accep- tance of a 5-cent-per-hour increase under a contract extending to January 19, 1963, and from year to year thereafter absent a terimnating notice from either party to the other on the preceding November 19. In this letter, Butler also modified the Union's proposals with respect to the other matters referred to by Schwartz in his letter of August 29. On September 14 Schwartz replied to Butler by letter bearing that date and, without any reference to the wage proposal of a 5-cent-per-hour increase, stated that "my clients are not agreeable" to the other elements of the Union's last proposal. On October 2 Butler was informed by one of the employees that the Respondent had given raises to the employees. On the following day, October 3, Butler visited Schwartz at his office and told Schwartz he had just learned that the employees had received increases of from 14 cents to 26 cents per hour and that the Union intended to file unfair labor practice charges unless it could reach an agreement with the Respondents "satisfactory to the employees." Schwartz said he did not think the raises had been "that much" and asked Butler whether, in any event, the raises given "would be considered in any wage increase that [might] be contained in the contract." Butler rejected this suggestion, saying "that any increase granted [in the contract] would be over and above any increase recently granted the employees of Liberty Food." The Respondents' payroll records show that on September 8 wage increases rang- ing from 5 cents to 26 cents an hour had in fact been given to each of the Respond- ents' seven employees in the bargaining unit, and that in some instances guaranteed overtime work had been increased One of the employees was raised 26 cents per hour; 4 one was raised 15 cents per hour; 5 four were raised 14 cents; 6 and the seventh employee, who had returned to work after a 3-month absence, was raised 5 cents per hour.? Thus, without notice to, or consultation with, the Union with whom it was bargaining on the wage issue and whom it had only recently asked whether a 5-cent-per-hour increase would be "agreeable," the Respondents had raised 4 W. Casey 5 John Contee 8 James L Miles, William B Butler , Leroy Snowden , and Thomas 1V Proctor George D. Brown. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the wages of six of its seven employees by more than 14 cents per hour and one of them by 26 cents per hour. Contrary to the allegation of the Respondents' answer, it appears from the testi- mony of Respondent Hy Greenspun that none of these increases had been promised to any of these employees before the Union had begun its attempts to bargain on their behalf. From Greenspun's testimony, it also appears clear that there was no existent practice of granting periodic wage increases which might conceivably have been regarded by the Respondents as requiring the September 1962 increases. And it is also clear, as I have noted, that the Respondents never gave the Union any notice of its intention of granting the increases, much less an opportunity to bargain concerning the amount of the increases. In short, on September 8, 1962, the Respondents unilaterally increased the wages of six of the seven employees in the bargaining unit by amounts ranging from 14 cents to 26 cents per hour although, over a period of more than 6 months of "negotiations," their attorney had succeeded in having the Union reduce its wage request to a 5-cents-an-hour increase. By this unilateral action in excess of any offer made to the Union, the Respondents openly ignored and undercut the exclusive bargaining authority which the employees had given to the Union, obstructed the Union's attempt to bargain on behalf of the employees, and thereby failed and re- fused to bargain with the Union in the good faith required by the Act.8 Further- more, upon consideration of this and all the other facts in the case, it appears that the Respondents, through the conduct of their attorney as well as through Respondent Greenspun's oral remarks to Union Secretary Butler in May 1962, deliberately delayed negotiating on the wage issue and thereby made unlikely any prospect of agreement on any of the bargaining issues by failing to reply within a reasonable time to the Union's written or telephone communications of March 16, March 27, and June 29; by quibbling as to the firmness or negotiability of the Union's 10-cents-an-hour offer of June 13; and, finally, by soliciting and then completely ignoring the Union's 5-cents-an-hour offer of September 11, by which time, inciden- tally, the Respondents had already unilaterally granted wage increases of from 14 cents to 26 cents per hour to six of the seven employees in the bargaining unit with- out informing the Union. Accordingly, I find and conclude that, by thus delaying negotiations as well as by their unilateral grant of the wage increases of September 8, 1962, the Respondents have continuously failed and refused to bargain with the Union in good faith since at least May 15, 1962, and have thereby committed un- fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section III, above, occurring in connection with the operations of the Respondents set forth in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondents have engaged in unfair labor prat-, tices within the meaning of Section 8(a)(5) and (1) of the Act, I will recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Warehouse Employees Union, Local 730, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union) is a labor organization within the meaning of Section 2(5) of .the Act. 2. All employees employed by the Respondents, Hy Greenspun and Harry Braymes, trading as Liberty Food Distributors, at their Brentwood, Maryland, ware- house, but excluding all office clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act, have constituted, and now con- stitute, a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 3 The above-named Union was on December 20, 1961, and since that date has been at all times, the exclusive representative of all employees in the aforesaid ap- 8 N L R B v Benne Katz, d/b/e Williamsburg Steel Products Co , 369 U S. 736 LIBERTY FOOD DISTRIBUTORS 649 propriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing, on and since May 15, 1962, to bargain collectively in good faith with the above-named Union as the exclusive representative of their employees in the aforesaid appropriate unit, the Respondents have engaged in and are en- gaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. 5. 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, it is recommended that the Respondents Hy Greenspun and Harry Braymes, trading as Liberty Food Distributors, their agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment, with Warehouse Employees Union, Local 730, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all employees in the following appropriate unit: All employees employed by the Respondents at their Brentwood, Maryland, warehouse, but excluding all office clerical employees , watchmen, guards, profes- sional employees , and supervisors as defined in the Act. (b) Changing or effecting new wage rates or otherwise altering the working con- ditions of their employees in the appropriate unit without giving notice to and con- sulting with the above-named Union. (c) In any like or related manner refusing to bargain collectively with the said Union as the exclusive representative of all the employees in the appropriate unit. 2. Take the following affirmative action which it is found will effectuate the policies of the Act- (a) Upon request, bargain collectively with the above -named Union as the ex- clusive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at their warehouse at Brentwood , Maryland, copies of the attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondents, be posted by them immediately upon receipt thereof and be maintained by them for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents that said notice is not altered , defaced, or covered by any other material. (c) Notify the Regional Director for the Fifth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps the Respondents have taken to comply herewith.la 91f this Recommended Order be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "A Decree of the United States Court of Appeals , Enforcing an Order" for the words "A Decision and Order." 10 If this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Fifth Region, in writing , within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Warehouse Employees Union, Local 730, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , as the exclusive representative of the employees in the bargaining unit described below. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain collectively with said labor organization as the exclusive representative of the employees in the bargaining unit described below, by changing or effecting new wage rates , or otherwise altering the work- ing conditions of our employees in the appropriate unit without giving notice to and consulting with the said labor organization. WE WILL NOT in any like or related manner refuse to bargain collectively with said labor organization as the exclusive representative of the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment , and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees employed by us at our Brentwood, Maryland, warehouse, but excluding all office clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act. HY GREENSPUN AND HARRY BRAYMES, T/A LIBERTY FOOD DISTRIBUTORS, 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, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any questions concerning this notice or compliance with its provisions. Fort Worth Poultry & Egg Co., d/b/a American Poultry and Egg Company and General Drivers and Helpers Local Union No. 657, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America Fort Worth Poultry & Egg Co., d/b/a American Poultry and Egg Company and General Drivers and Helpers Local Union No. 657, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases Nos. 23-CA-1492 aid 23-RC-1949. Septem- ber 18, 1963 DECISION AND ORDER On June 21, 1963, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that certain of the above unfair labor practices engaged in by the Respondent affected the results of the Board election in the above-captioned representation case and recommended that the said election be set aside and that a new election be held at such time as the Regional Director for the Twenty-third, Region deems that circumstances permit the employees a free choice of a bargaining representative. He further found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint 144 NLRB No. 67.