Southern Transport, Inc.

SOUTHERN TRANSPORT, INC. 305 bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8 (a) (3) of the Act. TOWER IRON WORKS, 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, 24 School Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions.' Southern Transport, Inc. and Truck Drivers & Helpers Local Union #568, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America . Case No. 26- CA-1781. December 16, 1964 DECISION AND ORDER Upon charges duly filed by Truck Drivers & Helpers Local Union #568, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 26, issued a complaint dated June 16, 1964, against Southern Transport, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance that the Union was and is the exclusive representative of certain employees of the Respondent in the appropriate unit certified on September 17, 1962, by the Regional Director, and that on or about March 16, 1964, and thereafter the Respondent unlaw- fully refused to bargain with the Union. The Respondent's answer, filed on June 26, 1964, admits certain jurisdictional and factual allegations of the complaint, but denies the commission of unfair labor practices. Thereafter, all parties to this proceeding entered into a stipula- tion of facts, and requested that the proceeding be transferred di- rectly to the Board for findings of fact, conclusions of law, and decision and order. The request states that the parties have waived their rights to a hearing before a Trial Examiner and to the issuance 150 NLRB No. 20. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a Trial Examiner's Decision. The parties also agree that their stipulation and certain specified documents constitute the entire rec- ord in the case. On August 12, 1964, the Board granted the parties' request to transfer the case to the Board. A brief was thereafter filed by the Respondent and a memorandum argument was filed by the General Counsel. 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 [Chairman McCulloch and Mem- bers Leedom and Brown]. Upon the basis of the parties' stipulation, the Respondent's brief, the General Counsel's memorandum, and the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is an Arkansas corporation engaged in the pur- chase, transportation, and distribution of petroleum and petroleum products within the State of Arkansas. During the 12 months prior to the issuance of the complaint, the Respondent transported and distributed goods that originated outside the State of Arkansas, and which were carried into the State of Arkansas by interstate pipeline, valued in excess of $100,000. The. Respondent admits, and we find, that it is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Truck Drivers & Helpers Local Union #568, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization as defined in Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The Union, which was certified in September 1962 as the bargain- ing representative of the Respondent's truckdrivers, met several times thereafter with the Respondent, but was unable to conclude an agree- ment. Pursuant to charges filed by the Union 1 a hearing was held before a Trial Examiner who, on August 20, 1963, issued his Inter- mediate Report concluding that the Respondent had refused to bar- gain collectively with the Union in violation of Section 8(a) (5) and 1 Case No. 26-CA-1489, the record in which was incorporated by stipulation as part of the record in the present case. SOUTHERN TRANSPORT, INC. 307 (1) of the Act. On December 24, 1963, the Board issued its Decision and Order 2 finding that the Respondent had refused to bargain as required by the Act, by failing "to fulfill its statutory obligation to meet and confer with the Union at reasonable times" ; insisting dur- ing the negotiations upon the continuation in effect of existing com- pany rules while failing to furnish the Union with a copy of. them; failing to notify the Union of unilateral changes in its method of computing wages; and refusing to bargain on wages and economic benefits. On November 18, 1963, after issuance of the Intermediate Report but before the Board issued its decision, the Union wrote to the Respondent and requested resumption of negotiations. The Re- spondent replied by letter dated November 26, 1963, that the parties were in deadlock over a number of items and an impasse had been reached. Shortly after issuance of the Board's decision, the Union again requested bargaining. The Respondent's reply referred to the Union's "inflexible position" in regard to unresolved matters and, in addition, asked what the Union's position was "about having a cer- tified court reporter make a transcript of the proceedings" at the next meeting. On January 7, 1964, the Union wrote to the Respondent that "a change had taken place in the Union's position concerning the items that were still in issue," stated its opposition to the Respondent's request for the presence of a court reporter at future meetings, and again expressed its desire to resume negotiations. The record does not show that there was a reply to this letter. On March 11, 1964, the Union wrote to the Respondent in regard to a specific grievance over a work assignment, and again requested bargaining in compli- ance with the Board's Order. The Respondent's reply, on March 16, discussed the Union's grievance; asserted that the situation had not changed "in respect to the matters that are and have been at an impasse"; but stated that the Respondent was nevertheless willing to meet and negotiate on condition that a qualified reporter be pres- ent to make a record of the proceedings which would be binding on all parties, and that the Respondent would be willing to bear the expense thereof. The Union rejected this condition for the resump- tion of negotiations, and filed its charged in the present case. The General Counsel in his memorandum argument and the Re- spondent in its brief assert that the sole issue is whether the Respond- ent could lawfully require, as a precondition to negotiations, that a reporter be present to make a transcript of the proceedings which 8145 NLRB 615. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be binding upon all parties .3 The General Counsel contends that this demand showed that the Respondent was not in good faith attempting to reach an agreement. The Respondent argues, in sub- stance, that the presence of a court reporter to make a record is conducive to responsible bargaining, that had there been such a rec- ord in. the earlier proceeding, the Board would not have found the Respondent in. violation of the Act, and that, should the Board's Order in that proceeding be enforced by the court of appeals, the Respondent "will be faced with contempt proceedings should it fail to bargain as the law requires." We find merit in the contentions of the General Counsel. In reach- ing this conclusion, we rely on the facts that the Board's findings in the earlier case were largely based on uncontradicted testimony, admissions of the Respondent, and documentary evidence. Indeed, no findings regarding the negotiation meetings were based on a reso- lution of conflicting testimony, and the Respondent does not allege that any of the findings in the earlier case were based upon false testimony. Further, although the Trial Examiner in the earlier case made certain findings adverse to the Respondent on the basis of his resolution of conflicting testimony as to events at bargaining sessions, the Board did not adopt those findings; yet it was not until after the issuance of the Board's decision that the Respondent made the presence of a reporter a condition to the resumption of negotiations. Under all these circumstances, we conclude that the Respondent, in insisting that a reporter be present at future negotiating meetings, was not acting in good faith. Rather, when the Respondent's con- duct herein is viewed as it must be against the background of its conduct as revealed in the earlier` case, it is manifest, and we find, that its insistence on having a reporter at negotiation meetings, de- spite the Union's objections thereto, had as its purpose the continued avoidance of negotiating meetings with the Union. The Respondent, by such insistence, was therefore, now as before, in fact seeking to avoid, delay, and frustrate any meaningful bargaining with the Union. Accordingly, we find that the Respondent, by insisting on a stenographic record of negotiations as a precondition for any future meetings, violated Section 8(a) (5) and (1) of the Act .4 S Although the Respondent thus indicated that the demand for a stenographic record of negotiations was the only issue in this case, it referred in its letters , as noted above, to an impasse in the negotiations , and it stated in its brief that certain bargaining "matters give rise to a genuine impasse in bargaining which still obtains and respondent 's subsequent offers to meet were and are subject to and without waiving that position ." No evidence has been presented , however, in the record in the earlier case or in the instant case, which establishes that the parties failed to conclude an agreement because of a good-faith impasse in the negotiations. 4Reed & Prince Manufacturing Company, 96 NLRB 850, 854, enfd. 205 F. 2d 131, cert. denied 346 U.S. 887. Cf St. Louis Typographical Union No. 8 (Graphic Arts Association of St. Louis, Inc.), 149 NLRB 750. SOUTHERN TRANSPORT, INC. 309 IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act, we shall order that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In view of the nature of the unfair labor practices found to have been committed, the commission of similar and other unfair labor practices reasonably may be anticipated. We shall therefore order that the Respondent cease and desist from in any other manner interfering with, restraining, or coercing its employees in the exer- cise of their rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Truck Drivers & Helpers Local Union #568, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization as defined in Section•2(5) of the Act. 2. All truckdrivers, mechanics, mechanics' helpers, wash, tire, and grease men, and servicemen, excluding all office employees, janitors, night watchmen, any other employees, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 3. The above-named labor organization was on September 17, 1962, and at all times thereafter, the certified representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4: By refusing, at all times since on or about March 16, 1964, to bargain collectively with the above-named labor organization as the exclusive representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Southern Transport, Inc., El Dorado, Arkansas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively concerning wages, hours, and terms and conditions of employment with Truck Drivers & Helpers Local Union #568, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive repre- sentative of all its employees in the following appropriate unit: All truckdrivers, mechanics, mechanics' helpers, wash, tire, and grease men, and servicemen, excluding all office employees, janitors, night watchmen, any other employees, and all supervisors as defined in the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, including the above-named Union, 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. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all employees in the appro- priate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its plant, copies of the attached notice marked "Ap- pendix." 5 Copies of said notice, to be furnished by the Regional Director for Region 26, shall, after being duly signed by the Re- spondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 5In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order". SOUTHERN TRANSPORT, INC. 311 MEMBER BROWN, concurring : I agree with my colleagues that the Respondent violated Section 8(a) (5), but not the basis upon which this conclusion is reached. Rather, for the reasons set forth in the separate concurrence in St. Louis Typographical Union No. 8 (Graphic Arts Association of St. Louis, Inc.)," I find that the insistence upon a stenographic tran- script of negotiations is, by its very nature, a rejection of the bar- gaining duty and undermines the collective-bargaining relationship. 6 Supra. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT, by refusing to bargain in good faith or in any other manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Truck Drivers & Helpers Local Union #568, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, 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. WE WILL bargain in good faith, upon request, with the above- mentioned Union as the exclusive representative of all our em- ployees in the bargaining unit described -below with respect to rate 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 truckdrivers, mechanics, mechanics' helpers, wash, tire and grease men, and servicemen, excluding all office em- ployees, janitors, night watchmen, any other employees, and all supervisors as defined in the Act. SOUTHERN TRANSPORT, 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. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161, if they have any question con- cerning this notice or compliance with its provisions. Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO and The Business League of Gadsden [David Buckner, et al.]. Case No. 10-CB-1362. De- cember 16, 1964 DECISION AND ORDER On March 18, 1964, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in his attached Decision. Thereafter, the General Counsel and the Charging Party filed exceptions and briefs, and the Respondent also filed a brief. 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 entire record, including the Trial Examiner's Decision, the exceptions, and briefs, and adopts the findings and conclusions of the Trial Examiner only to the extent consistent herewith.' The principal facts are detailed in the Trial Examiner's Decision. Briefly, since 1943 the Respondent Union has been the bargaining representative of the employees of Goodyear Tire and Rubber Com- pany at the latter's plant at East Gadsden, Alabama. The collective labor agreement which was in effect at all material times, and, insofar as appears, all earlier agreements, did not contain provisions dis- criminating racially against Negroes in the bargaining unit. In practice, however, the Respondent and the Company construed the contracts as permitting racial job discrimination and racial seniority rosters, so that, to quote the Trial Examiner, "Certain jobs were allocated to white employees and other jobs to Negro employees" and "as to promotion, transfers, layoffs, and recalls Negro employees with greater plant seniority had no rights over white employees with less seniority, and vice versa." In addition, as the Trial Examiner found, racially segregated dining and toilet facilities are maintained i The requests of the Respondent and the Charging Party for oral argument are hereby denied, as the record adequately presents the issues and the positions of the parties. 150 NLRB No. 18.