Fox & Ginn Moving & Storage Co.

FOX & GINN MOVING & STORAGE COMPANY 707 Fox & Ginn Moving & Storage Company and Truck Drivers, Warehousemen & Helpers Local Union No. 340 a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case No. 1-CA-4288. April 7, 1964 DECISION AND ORDER On December 27,1963, Trial Examiner C. W. Whittemore issued his Decision in the above case, finding that the Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recom- mending that the complaint be dismissed, as set forth in his attached Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision sand both the General Counsel and the Re- spondent filed briefs. 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 [Chairman McCulloch and Members Leedom 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 Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon an original and an amended charge filed, respectively, on September 3 and October 10, 1963, by the above-named labor organization, the General Counsel of the National Labor Relations Board issued his complaint and notice of hearing on October 15, 1963, alleging that the above-named Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. On October 30, General Counsel issued an amendment to the complaint. Answers both to the complaint and the amendment were filed by the Respondent, denying the commission of unfair labor practices. Pursuant to notice, a hearing was held in Bangor, Maine, on Novem- ber 12, 13, and 14, 1963, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from the Respondent and General Counsel. Disposition of the Respondent's motion to dismiss the complaint, upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Fox & Ginn Moving & Storage Company is a Maine corporation, with principal office and place of business in Portland, Maine. It maintains -facilities in Portland, 146 NLRB No. 91. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brunswick, Bangor, and Presque Isle, all in Maine, and all involved in these proceed- ings. At its various Maine facilities it is engaged in the business of providing and performing transportation and moving of furniture, machinery equipment, and property of all kinds and related services. It is licensed by the Interstate Commerce Commission. Annually, the Respondent derives gross revenues of more than $50,000 from that part of its operations which were performed as an essential link in interstate com- merce and for various enterprises themselves directly engaged in interstate commerce or essential to the national defense. The complaint alleges, the answer admits,,and it is here found that the Respondent is engaged in commerce within the meaning of the Act. II. THE CHARGING UNION Truck Drivers, Warehousemen & Helpers Local Union No. 340 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting and major issues All issues raised by the complaint arose at and after written notification on June 11, 1963, by the Charging Union to the Respondent Company, of its intention to terminate an existing contract due to expire August 17, 1963. In quick summary General Counsel alleges and the Respondent denies that: (1) Since the notification date the Respondent had refused to bargain in good faith; (2) the Respondent caused and prolonged a strike beginning on August 18, 1963; and on and since September 4, 1963, the Respondent has refused to reinstate 24 named employees (appearing on attached Appendix A), although on or about that date said employees applied for reinstatement. B. The refusal-to-bargain issue before the strike 1. Relevant facts Documents in evidence and credible testimony establish the following facts: (1) On June 11, 1963, an official of Local 340 sent the following letter to Herbert Ginn, the Respondent's president: Please consider this as a notice of our intention to terminate the present contract and negotiate a new Agreement. This sixty day notice is given in compliance with the contract and pursuant to the Labor-Management Relations Act, of 1947. We shall be pleased to meet at anytime [sic] convenient to you for the purpose of negotiations. (2) The Respondent did not reply to this "notice of intention." (3) There is no evidence that any union official made any effort to communicate, in any fashion, with the Respondent from June 11 to August 5, when David Hastings, president and business agent of Local 340, sent the following letter to Ginn: This is to call your attention to the following facts and circumstances: 1. The current Agreement between your Company and the union will expire at 12 midnight August 17, 1963. 2. On June 11, 1963 sixty days notice was served to the Company by certified mail of our intention to terminate the present contract and negotiate a new Agreement. 3. July 11, 1963 the required thirty (30) day notice was mailed (certified) to Federal Mediation and Conciliation Service in accordance with Sec. 8(d)(3) of the Labor-Management Relations Act. 4. The Company has made no reply to said sixty day notice. 5. The Union herewith serves notice to the Company that it does in fact represent a very substantial majority of the Company's employees in Bangor, Brunswick and Portland, Maine and, therefore, herewith demands a responsive answer to the union's requests to bargain. (Proof of majority will be made available, if doubted.) 6. This letter calls to your attention that there is less than two weeks left until contract expiration. 7. The union reserves the right to take .the position of no contract, no work. FOX & GINN MOVING & STORAGE COMPANY 709 8. At request of your employees the union demands to negotiate on the follow- ing proposals: (a) Union Shop is a must. (b) Wages to be patterned on classification and rates now in effect in the Maine General Freight Agreement-negotiable. (c) Sunday work to be paid at 11/z rate, as such. (d) Paid holidays to be the same nine (9) holidays as in General Freight Agreement based on same eligibility rules. (e) Change Insurance and Hospitalization Plan to General Freight Plan becoming effective September 1, 1963. (f) Increase layover expenses. (g) Three year Agreement. Please declare your intentions soon, as I am presently negotiating with several other companies which makes few days available now. (4) On August 8 Ginn replied to the above-quoted letter from Hastings, stating in part: We have received your letter of August 5. It is unfortunate that you have been to [sic] busy to contact us previously. If we had been able to get together seasonably, we might have reached an agreement by this time. We could not see that your letter of June 11 required an answer. You merely advised us that you wished to terminate the present agreement. We presumed that you would advise the changes you desired, and we have been waiting to hear from you. We have been and continue to be prepared to meet with you at any time to discuss a new contract. Since you indicate that you are very busy and may have difficulty in ar- ranging a personal appointment with us, we will answer your proposals in writing at this time. This in no way should be taken as a desire on our part to negotiate by letter only. If you will let us know what dates you have free, we shall be pleased to make appointments to discuss matters with you personally. (5) Also on August 8, before the above-quoted letter had been mailed, Hastings called Ginn by telephone. He told Ginn that all dates before August 15, were "closed in." Ginn replied that he would meet on that date. (6) Negotiations began as thus scheduled at the union office and with a Federal mediator present. As a witness Hastings admitted, in effect, that when Ginn came into his office the employer was confronted by strike signs already prepared which stated that Fox & Ginn Moving & Storage Company was "unfair to Local 340." (7) Before the strike began on August 18 these three individuals met at the union office for "negotiations" from 10 a.m. to 5 p.m., on August 15 and from 10 a.m. to 1 p.m., on August 16. (8) Ginn's testimony is undisputed to the effect that on both days Hastings was intermittently busy with his personal or office affairs, causing the mediator and the employer to await his convenience. "Several times," Ginn said, during the first meeting Hastings "was absent from the conference table.... He had a desk at the other side of the room, and he would go over there and work," Ginn testified, "or he would go into another office that they had there and leave Mr. Creighton (the mediator) and I alone for extended periods of time." (9) The next day, August 16, also according to Ginn's uncontradicted testimony, "Mr. Creighton and I sat at the conference table at one end of the room and for a considerable period of time-I would say at least half an hour-Mr. Hastings sat at the desk and apparently did his own personal business and didn't come to the conference table." (10) While the testimony of both Ginn and Hastings is in general agreement that both parties made certain concessions during the discussions on August 15, their respective versions make it equally clear that at each of the two meetings Hastings maintained the adamant demand stated as the first point in his written proposals of August 5, quoted above: "Union Shop is a must," and that Ginn insisted he would not yield to this demand. (11) Upon this impasse negotiations broke up in the early afternoon of August 16.1 The Union made no further request for meetings until early September, as will be described below. 'As might well be expected, Hastings and Ginn gave somewhat differing versions as to which of the two precipitated the actual breakup of the August 16 meeting. Ginn claimed that Hastings finally declared that he would consider no further offers from the Company unless it included the union shop Hastings contended that Ginn declared that if the Union was so insistent upon the union shop, nothing he could offer would do any good and 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Conclusions There is no dispute that at all material times the Union has been the majority representative of all drivers, packers, helpers, and warehousemen at the Portland, Brunswick, Bangor, and Presque Isle, Maine, facilities of the Respondent, exclusive of certain classifications. Nor is there any dispute that when Union Official Hastings finally got around to ask Ginn for negotiations to seek a new contract Ginn promptly told him he would make himself available on any date desired. The fact that Hastings ap- parently was too busy from early June to a few days before expiration of the current contract to ask for negotiations plainly may not be held against the Employer. On the contrary, the credible evidence supports the conclusion that Hastings fully expected that Ginn would decline to agree to a union shop (as he had declined during the 1961 negotiations) and that he would have to call a strike to get it. That he had made plans for such a strike is readily inferrable from the fact that when Ginn went to the union office for the first meeting on August 15 he was confronted with picket signs already prepared. The Act does not require any bargaining party to make concessions. Ginn's refusal to yield to the strike threat and the demand for a union shop was his privilege under the law. In short, the Trial Examiner is unable to find that the preponderance of evidence sustains the allegations of the complaint to the effect that the Respondent refused to bargain unlawfully from June 11 to the date of the strike, August 18 C. The strike of August 18 At a meeting of union members held on Sunday, August 18, it was unanimously voted to strike. According to Hastings' own testimony the members voted "to reject [the company offer] and strike." Pickets were stationed at Bangor later that day, and on Monday at other locations. Not all employees, however, joined the strike. The Trial Examiner finds no substantial evidence in the record to support General Counsel's allegations that the strike was caused by the Respondent's unfair labor practices. It was clearly an economic strike, designed to pressure the Employer to meet the Union's demands. Since the strike was of an economic nature, the Respondent of course was priv- ileged to hire replacements for the strikers. It proceeded to do so. D. Events between August 16 and September 4 Late in the day of August 16, following the last negotiating meeting before the strike, the Portland terminal manager, Jerome Pedro. and employee Sidney Ames discussed the course of negotiations and the possibility of the impending strike. When Ames said that they were to have a meeting the following Sunday and would probably vote to strike, Pedro voiced the, belief that if the men voted "an open shop" (the quotations are from Ames' testimony) Ginn would probably offer more of a wage increase. Pedro suggested that Ames talk to the other employees and see if they would agree to the open shop. If they would agree, according to Ames' account of the interview, Pedro said, "Then, we will see what Mr Ginn will offer." Also according to Ames he told the manager that "we had got along the last two years with an open shop, and we can probably do it, and I'd talk to the men and see what they said " 2 There is no evidence that Ames took any action prompted by Pedro's suggestion until several days after the strike began and for which be obviously voted on Aoril 18. (He stated that he attended the meeting; Hastings testified that the vote to strike was unanimous.) Some days after the strike began (the precise date is not fixed), Ames told three of his fellow-strikers what Pedro had said concerning the possibility of getting more favorable terms from Ginn if they dropped the union-shop issue. A few days later, he might as well leave No recording having been made of that conference, it would be a superhuman task to determine precisely what was said by either Ginn or Hastings at this point of heated argument. Surrounding circumstances plainly establish the impasse, however, and there is no evidence that Ginn at any time refused to meet or to discuss any point 2 The findings are based upon the credible portions of Ames' testimony and the prob- abilities inherent in circumstances and events later described. The Trial Examiner does not ciedit Pedro's denial that during this conversation (which he admitted occurred) he said anything about wages or "company proposals of any kind." FOX & GINN MOVING & STORAGE COMPANY 711 during the second or third week of the strike employee Johnson, one of the three whom Ames had informed of Pedro's suggestion, went to the home of the terminal manager. According to Johnson's own testimony he told the manager that he was dissatisfied with the way negotiations were going. Johnson testified: "I told him that as long as Herb [Ginn] was in his office and Mr. Hastings was in his office, and nobody was talking to nobody, that we were just going to walk. That I'd like to get something going between the Company and the Union, to try to get us back to work." The next morning Johnson and another striker, Neptune, drove to Bangor and Brunswick to see what the men there would "settle" for. At Bangor, Johnson said, the union steward declared that they would settle for nothing short of a union shop. At Brunswick the union steward said he thought that some of the terms Ames had drawn up might be satisfactory if the strikers could be assured that they would not be fired. When Johnson returned to Portland early that afternoon he told Pedro of his venture, and the manager asked him what "figures" they had come up with, and then said he would take up the matter with Ginn. According to Johnson's own testimony he asked Pedro, after telling him that the Bangor crew would not go along with the proposition, to talk to Ginn, and further suggested that if Ginn would make the offer to Hastings, the union official could put it before a membership meeting for approval. Apparently Pedro arranged to have Ginn at this terminal late that day. Johnson and a group of three or four strikers went in to see him While there is some dispute as to what precisely was said on minor matters by all parties at this meeting,3 the testimony of Johnson and Ginn is in essential agreement to the effect that Ginn declined to discuss or negotiate on matters of wages or any other bargaining subject except return to work. He did warn them that he was hiring replacements and that if they stayed out too long they would be permanently replaced. Ginn told them that he could only offer them the chance to come back to the same jobs at the same rate of pay. They declined and left. Conclusions General Counsel contends that the above-described events between August 15 and the end of the month were in violation of the Act, in that they constituted overt attempts by the Respondent to bypass the Union and deal directly with the employees. The credible evidence, however, including .the testimony of the strikers themselves, in the opinion of the Trial Examiner does not permit agreement with this conclusion. Even if it were reasonable to hold that Pedro was acting within the scope of his authority as a supervisor, in suggesting to Ames on August 16 that he discuss bargain- ing matters with others, testimony of both Ames and Johnson-as well as that of Ginn-establishes that Ginn effectively repudiated Pedro's suggestion that he might raise wages when he flatly refused to talk about such items when the employees finally came in to see him .4 E. The negotiating meeting of September 4 On September 4, the day after Hastings had filed with the Board a charge alleging refusal to bargain, the parties met for the third and final time. According to Hastings' own testimony: I stated the Union's position, that, No. 1, all former employees must first return to work to their former classifications without discrimination. Then, if we got by No. 1, we would talk. We would negotiate on wages: that we would at least want check-off; that we thought the performance bonus should stay in and a ten 9 For example, Johnson testified that Ginn had told them that If they were not satisfied with the union bargaining they could vote the Union out, and if not satisfied then they could vote the Union back in. Ginn denied making any reference to such matters In view of Johnson's own admission that he had voluntarily gone to Pedro the night before and expressed his dissatisfaction with the progress of negotiations, the Trial Examiner cannot find that Ginn, even if he made the suggestion of elections, initiated any move to undermine the Union unlawfully 4 Furthermore, whatever may have been the terminal manager's suggestions on August 16, events proved them ineffective As has been noted, Ames attended the union meeting on August 18 when the strike vote was unanimous. Finally, as the former himself testified, Johnson and Neptune did not visit the other terminals until after he had told Pedro he and others were dissatisfied walking alone, and he was going to do something about it. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cent raise. But first, we must get by No. 1, and the answer was "no." [Em- phasis supplied.] Credible evidence shows that by September 4 a number of replacements had been hired by the Respondent. Since the strike was economic in nature, the Respondent was not required to guarantee taking back all strikers.5 In his brief General Counsel contends that the Union's above-described approval "was an unconditional offer by the Union to return all strikers to work." The Trial Examiner cannot agree. Hastings' language, quoted, plainly shows that the prime condition upon which he would "talk" about other matters was the reinstatement of all strikers. General Counsel further urges that, even if the evidence does not warrant, in the opinion of the Trial Examiner, a finding that the strike was at its beginning an unfair labor practice strike, or was prolonged and converted to such when Ginn met with a group of employees the last of August, the Trial Examiner should find that on September 4 the Respondent "converted the strike from economic to unfair labor practice" by withdrawing its wage increase offer of August 16. Again the Trial Examiner cannot agree. While Ginn was not, as a witness, queried by either counsel as to why he had withdrawn his previous offer of a small increase, it would appear arbitrary to ascribe an unlawful motive to such withdrawal under circumstances existing here. These circumstances include: (1) the overt display of picket signs at the opening of the first negotiating meeting on August 15; and (2) Hastings' equivocal testimony that he could not recall making the threat, which Ginn credibly said he did make, that he could not "fool around" with half-a-dozen members who might or might not pay dues. And contrary to the union representative's denial, the Trial Examiner credits Ginn's testimony to the effect that Hastings declared at the same meeting that if Ginn's "union shop" principles were more important than his business, he would have to call a strike and "ruin his business." In short, the Trial Examiner is not convinced that the preponderance of credible evidence supports either the conclusion that on September 4 an unconditional offer to return to work was made by the Union, or the conclusion that on the same date the Respondent unlawfully refused to bargain, thereby converting the economic nature of the strike. F. The issue of claimed refusal to reinstate strikers The Trial Examiner is unable to find that any striker, listed on Appendix A, was refused reemployment upon his unconditional offer to return at a time when a job opening for him existed. Only a few of those listed appeared as witnesses. As to those who did testify, credible evidence and their own testimony establish the following facts: (1) Moses Neptune asked for reemployment on August 31, and was told to report for work the following Tuesday (Monday being Labor Day). He did return to work the next Thursday. (2) Although it appears that on the same day striker Sidney Ames called Pedro and asked him "if I had a job to come back to" (according to his own testimony), it clearly was not an unconditional offer on his part to return. He admitted that later the same day he was instructed by Hastings "not to go back to work." (3) According to Wallace Johnson, he and others in the small group already de- scribed, were offered work the last of August, but declined. On September 6 he informed management that he was leaving the Respondent's employment. (4) Sometime before the end of August, according to his own testimony, striker Thomas Thibodeau informed Pedro that he was leaving the company employment to seek work in New York. (5) Nothing in the testimony of striker Norman Hooper indicated that at any time since August 18 has he sought reemployment. (6) According to striker Charles Sawyer, in the latter part of August he went to see his brother-in-law, the Respondent's Brunswick terminal manager, and asked, "How about our jobs back9" The manager told him to make an appointment with Ginn. The employee then suggested that an appointment be made for Beaulieu, the local steward, to meet with Ginn. The manager agreed to do so, and the appointment was made and kept. Sawyer, however, did not attend this meeting, and he has made no further effort to go back to work. Beaulieu was not a witness at the hearing. 6 As a witness, Ginn claimed that Hastings' demand for the "guarantee" of jobs was the last item of his proposal that day. The Trial Examiner believes his recollection of the sequence to have been faulty. WELSH CO. 713 (7) Sometime in September strikers John Cutliffe and George Beaton met with Ginn and the Brunswick terminal manager, and asked if they could have their jobs back. According to Cutliffe, they were told by Ginn that they "could come in off the picket line anytime" they "wanted to and go to work, providing there was work available." "Then we asked him," Cutliffe said, "if chances of us coming back to work after the strike was over would be jeopardized by being on strike. He said, ,no, it wouldn't."' (8) Later the same day Cutliffe and Beaton, in company with strikers Kenneth and Roland Eldridge, went to the Brunswick terminal to see Ginn . Both Eldridges were told that their jobs had been filled, but were promised work if these replace- ments did not "work out." Thereafter both Eldridges were offered, in writing, re- employment. Both refused. Cutliffe was also offered his job later, but according to his own testimony he told the terminal manager that he would not go back until the strike was over. G. The issue of promised and granted benefits General Counsel alleges that the Respondent offered and granted benefits in order to induce strikers to return to work. The Trial Examiner finds no credible evidence in the record to support this alle- gation. Although, as noted, Terminal Manager Pedro did on August 16 suggest that Ginn might make a higher wage offer, the suggestion was repudiated by Ginn later. H. Final conclusions Upon the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner concludes and finds that the preponderance of evidence does not sustain the allegations of the complaint. It is concluded that the Respondent has not engaged in unfair labor practices in violation of Section 8(a)(1), (3 ), and (5) of the Act. RECOMMENDATION Upon the foregoing findings of fact and conclusions of law , and upon the entire record in the case, the Trial Examiner recommends that the complaint be dismissed in its entirety. APPENDIX A Sidney Ames Roland Eldridge George Beaulieu Howard M. Flewelling Donald Smith Wallace Douglas Roy Flewelling Carroll Grindle Norman Hooper Wallace Johnson Raymond ! Manley Charles Miller Moses Neptune John,( Cutliffe Reginald Langlais Thomas Thibodeau Charles Separk Edwin Young Richard Wright Robert Coupe Lucien Bourgoin Kenneth Eldridge Robert Higgins Charles Sawyer Welsh Co. and International Brotherhood of Firemen , Oilers, Maintenance, and Production Employees, Local No. 6, AFL- CIO, Petitioner. Case No. 14-RC-4678. April 7, 1964 DECISION ON REVIEW AND DIRECTION OF ELECTION On October 21, 1963, the Regional Director for the Fourteenth Region issued a Decision and Order in the above-entitled proceeding in which he found the proposed unit too narrow in scope and dismissed the petition. Thereafter, pursuant to Section 102.67 of the Board's Rules and Regulations, as amended, the Petitioner filed with the Board a timely request for review of such Decision and Order on the grounds 146 NLRB No. 77.