Cloverleaf Cold Storage Co.

1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ;Cloverleaf Cold Storage Co: and General Drivers Union Local No. 383, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America. Case 18-CA-2165. September 30, 1966 DECISION AND ORDER On June 13, 1966, Trial Examiner Robert E. Mullin ' issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exaf l- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at he hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, as modified below. We find, in agreement with the Trial Examiner, that Respondent's conduct in laying off and recalling employees from December 17, 1965, to March 1966, without prior consultation and bargaining with the Union, despite the Union's frequent protests that it had not been notified of, or consulted about, any layoffs and recalls, was in viola- tion of Section 8 (a) (5) and (1) of the Act. We further agree with the Trial Examiner that throughout the course of negotiations, Respondent evidenced an attitude that it did not desire to reach a final agreement and, consequently, from and after September 8, 1965, refused to bargain in good faith in violation of Section 8 (a) (5) and (1) of the Act. In so concluding, we rely on the background evidence concerning the Respondent's opposition to the Union during its cam- paign, as found by the Trial Examiner,' plus the Respondent's evi- dent determination throughout the negotiations following the Union's 3 We reject Respondent ' s contention that its conduct prior to a settlement agreement should not be considered as background evidence in assessing the motive or object of Respondent's postsettlement conduct. Joseph's Landscaping Service, 154 NLRB 1384, footnote 1. 160 NLRB No. 116. CLOVERLEAF COLD STORAGE CO. certification to snake decisions unilaterally with respect to seniority; wage increases, and layoffs and recalls.2 [The Board adopted the Trial Examiner's Recommended Order.] 2 In view of our determination herein, we find it unnecessary to pass upon the Trial Examiner's additional 8(a) (5) findings based on Respondent's adamant insistence upon its proposal concerning layoff and recall and its insistence upon granting a 10-cent wage in- crease and thereafter refusing to offer any meaningful contract provision on wages TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed by General Drivers Union Local No. 383, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (herein called Teamsters or Union), against Cloverleaf Cold Storage Co. (herein -called Respondent or Company), the General Counsel of the National Labor Rela- tions Board, by the Regional Director for the Region 18 (Minneapolis, Minnesota), ,on February 24, 1966, issued a complaint and notice of hearing.' This complaint, as amended at the outset of the hearing, alleged that the Respondent had violated Section 8 (a)(1), (3), and (5) of the Act. In its answer and amended answer the Respondent conceded certain facts with respect to its business operations, but denied all alleged unfair labor practices with which it was charged. Pursuant to due notice, a hearing was held before Trial Examiner Robert E. Mul- lin at Sioux City, Iowa, on April 6, 1966. All parties appeared at the hearing with counsel and all were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally at the close of the hearing and to file briefs. The parties waived oral argument. On May 11, 1966, General Counsel and counsel for the Respondent submitted thorough and extremely helpful briefs on the issues herein . A motion to dismiss, made by the Respondent at the conclusion of the hearing and renewed in its brief, is denied for the reasons set forth below. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, an Iowa corporation -with its principal office and place of busi- ness in Sioux City, Iowa, is engaged in the operation of a cold storage plant. Dur- ing the year preceding the issuance of the complaint it shipped in interstate com- merce, goods valued in excess of $50,000 and during. the same period received, from outside the State of Iowa, goods valued in excess of $50,000. Upon the fore- going facts, the Respondent concedes, and I find, that the Cloverleaf Cold Storage Co., is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED The Respondent concedes , and I find, that the Union is a labor organization within the meaning of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of events and contentions of the parties The Respondent concedes, and I find, that all employees at the Respondent's ,operations in Sioux City, Iowa, excluding refrigeration engineer-mechanics, office clericals, guards, and supervisors as defined in the Act, constitute an appropriate ' The original charge was filed on January 3, 1966, an amended charge on January 27, 1966, a second amended charge on February 18, 1966, and a third amended charge on April 6, 1966. 1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. - On August 5, 1965, in a secret-ballot election conducted under the supervision, of the Regional Director for Region 18 a majority of the employees in the above- described unit, designated and selected the Union as their representative for the- purpose of collective bargaining with the Respondent. On August 10, 1965, the- Regional Director certified the Union as the exclusive bargaining agent for the employees in the foregoing unit. On August 20, 1965, the Union requested a bar-- gaining conference and the parties met for the first time about September 8, 1965.2 Seven other meetings were held in the following months, the last being on March 31, 1966. These will be discussed hereinafter. The General Counsel alleged that throughout these negotiations the Respondent violated Section 8(a)(5) of the Act by adopting an adamant and inflexible position as to proposals concerning the layoff- and recall of employees and by refusing to consider union proposals made on the subject. At various times during the months of December 1965 and January, February, and March 1966, the Respondent laid off for periods of a day or more, several of the employees. The complaint alleges that these layoffs were effected unilaterally and without prior notice to, or consultation with, the Union, so that by this conduct. the Respondent further violated Section 8(a)(5) and (1) of the Act. In addition, the complaint alleges that Jon Morton, an employee, was laid off at various times during this same period, because of his union activities, and in violation of Section 8(a)(3) and (1) of the Act. All of these allegations are denied in their entirety by the Respondent. B. The issue with respect to the settlement agreement On December 3, 1965, and subsequent to charges filed by the Teamsters in Case 18-CA-2110 and the issuance of a complaint thereon, the Respondent and the Gen-- eral Counsel entered into a settlement agreement. This provided for the reimburse- ment of six of the employees for backpay, the posting of a conventional notice,- and withdrawal of the complaint in that case. In the present proceeding the General Counsel did not seek to have the foregoing. agreement set aside. He did, however, endeavor to introduce testimony of what had occurred during the period prior to the execution and approval of this agree- ment on the ground that it was essentially background evidence that was necessary, for an understanding of what occurred during the months covered by the complaint. I overruled the objection of the Respondent and permitted the introduction of such testimony for that purpose. Joseph's Landscaping Service, 154 NLRB 1384, Gulf-- coast Transit Company, 135 NLRB 185, 189-190, N.L.R.B. v. Craig-Botetourt Electric Cooperative, 337 F.2d 374, 375 (C.A. 4). C. The period prior to December 1965 and the layoffs here involved The campaign to organize the Respondent's employees began in April 1965. Shortly thereafter David Feiges, general manager of the Company, called a meet- ing of the employees at which he spoke to them on the subject of unionization. Two employees, Jon Morton and Glen Donnelly testified as to the remarks which Feiges made at this meeting. Their testimony was credible and not contradicted by Feiges at any time when he was on the stand as a witness at the hearing. According to Morton and Donnelly, Feiges told the assembled plant work force that among the benefits of not having a union was the fact that all of the Clover- leaf employees received 50 to 55 hours of work every week, whereas if a union were selected, the workweek would be cut to 40 hours. He further stated that although at that time employees were kept on the payroll even during slack periods, if a union organized a majority that practice would be eliminated. Morton spoke up during the meeting to contradict Feiges on two separate occasions. Upon closing the meeting, Feiges sent all of the employees except Morton back to work. There- after, in addition to reiterating what he had said earlier about the benefits available if the employees rejected the Teamsters' attempt to organize 'them, Feiges told Morton that if the Union was successful he would be dropped from fifth to tenth- 2 There was some confusion in the record as to whether the precise date of this meeting was September 7 or 8. Hereinafter the latter date will be used with reference to this conterence. CLOVERLEAF COLD STORAGE CO. 1487 place in seniority. Notwithstanding what appeared as an obvious threat to his tenure, Morton told Feiges that he had joined the Union and that he intended to remain with it. The election was held early in August. In the period immediately prior thereto both Feiges and Harold L. Jensen, the latter being plant superintendent, spoke to the employees in an effort to dissuade them from voting for the Union. Jensen testi- fied that he spoke to almost every employee in the plant on the subject. In conver- sations with some of the employees, Feiges predicted that even if the Union won the election it would be unable to secure any benefits for the men, that he would not agree to any of its demands and that, if a costly strike resulted, he would close the plant.3 Royden Auen, another employee, testified that during the week before the election, Feiges spoke to the employees again on the subject of unions. During this meeting, Auen asked several questions. After the meeting, Feiges bitterly assailed him for having spoken up. When Auen endeavored to make light of the matter, Feiges became very indignant, cuised him, and told him not to move until he had finished speaking. Thereupon Feiges endeavored to impress upon the employee the consequences of his displeasure by telling him "I can have you fired, if I want. I could say that when you loaded a truck . . . you loaded wrong and you cannot prove it, and I can have you fired, and I can make it rough for you in this town so that you can't get a job." 4 As noted earlier, the Union won the election held on August 5. On the following day the Respondent laid off five employees .5 Royden Auen, one of this group, secured other employment almost immediately and returned to the plant on August 8 to submit his resignation to Superintendent Jensen. While there, Auen asked the superintendent why he had been selected for layoff when he stood so high on seniority.6 Jensen declined to give a direct answer to this question but commented "Well, I could see it was leading up to this." 7 Immediately after these layoffs were announced, Frank Santi, business agent for the Teamsters, telephoned Irving Kaplan, president of the Company to protest that the Union had not been consulted about the matter. According to Santi, Kaplan referred him to James Reynolds, the Respondent's labor relations advisor. Santi thereupon voiced his protest about the layoffs to Reynolds, who, according to Santi, told him that there was nothing he would do about it.3 During the month of August there were 11 employees in the bargaining unit. In addition to the five layoffs mentioned above, all effected on the day after the elec- tion, four other employees were laid off at various times during that same month.9 Of these nine employees, four were laid off from two to four times during August. As noted earlier, a settlement agreement arising out of charges filed in connection with these layoffs was executed on December 3, 1965. Thereafter the Respondent resumed its practice of making sporadic and intermittent short-term layoffs of employees in the bargaining unit. Thus, during the months of December, January, 3 Morton testified, credibly and without contradiction, that shortly before the election Felges told him that whereas he assumed that Morton was certain to vote for the Union, he would like for him to change his mind According to Morton, Felges told him that "if the Union was voted in that lie . . . wasn't about to agree to anything that the union wanted and there was bound to be strike and . . . it there was a costly strike he would close the plant up like lie did up at Cherokee." Glen Donnelly, another employee, testified that during the week before the election Felges spoke to him in the same vein Accoiding to Donnelly, Feiges told him "that I knew how he wanted me to vote, and he said we would have to go on strike to get what we wanted and if we did, he would bring men in from -Mankato to work and he could draw money on . . . products that already was in . . . storage . . . . 4 The foregoing quotations are from Auen's credible, undenied, testimony which Feiges in no way contradicted when he was on the stand. 5 These were Royden Auen, Duane Vanlaningham, Willie Nieman, Albert Jones, and Pete Kelly. 6 Auen was senior to all except two other employees at the plant. 7 The quotation is from Auen's credible, undenied testimony which was not contradicted by Jensen when the latter was on the stand. 8 Santi's testimony in this regard was credible and it was not contradicted. Kaplan was never called as a witness and Reynolds did not mention the subject of this conversation when he subsequently took the witness stand. 0 These were Jon Morton, Keith Eyer, Simon Hughes, and Glen Donnelly. 1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February, and March, the following layoffs occurred: Albert Jones was laid off for 14 days,10 Franklin Porter for 11 days,ii Robert Cline for 1 day,12 Glen Donnelly for 2 days,13 Simon Hughes for 1 day,14 Keith Eyer for 2 days,15 and Jon Morton for 7 days.is The Respondent never gave the Union any prior notice as to any of these layoffs. Nor did it notify the bargaining agent before the recall of any of these employees. Apart from the unilateral character of this action, there was evidence that the Com- pany selected for layoff only those employees whom it considered to be strong sup- porters of the Union. Thus, Robert Penn, a supervisor for one of the Respondent's customers, testified that one day during the fall of 1965, he had a conversation with General Manager Feiges in which the latter told him that he had had to layoff sev- eral men and that in selecting those to be laid off he had endeavored to retain on duty those who were for the Company and opposed the Union.17 D. The bargaining conferences At all of the bargaining sessions which were held from September 1965 to March 1966, the Union was represented by Santi, and an employee committee made up of Jon Morton, Glen Donnelly, and Keith Eyer. The Respondent was represented by James Reynolds. The composition of the union representation remained the same throughout the negotiations. At several of the meetings Reynolds was accompanied by various officials of the Company, such as David Fieges, who was the vice presi- dent as well as general manager, but at all times Reynolds remained the principal spokesman for the Respondent. Walter Hopkins, a representative of the Federal Mediation and Conciliation Service, was also present at the bargaining conference held on September 30, and at several of the subsequent meetings. On September 8, 1965, the parties met for their first bargaining session. Shortly after the certification of the Teamsters, Business Agent Santi had mailed the Respondent its proposed contract, a comprehensive 15-page document with 36 num- bered articles. The first meeting was concerned with a general review of this proposal and the parties went over it article by article. Reynolds, the Employer's representa- tive, registered opposition to many of the 36 articles, including article XI on senior- ity. This term of the Union's proposal provided, in substance, that seniority, based on length of service, should govern with respect to filling vacancies or new jobs and in connection with layoffs and recalls. It further provided that any question as to the seniority standing of an employee would be referred to the Union and the Employer for settlement. Another term of the proposal, article XVI, entitled "Minimum Guar- antee, Hours, Classifications and Rates of Pay" provided a basic contract wage rate and had numerous other provisions with respect to a guaranteed minimum weekly wage and classification of jobs. On the subject of wages, Reynolds suggested that all discussion on this issue be held in abeyance for consideration at some later time. On September 17, the parties met again. Santi raised the question of seniority in making layoffs and stated that the members of the Union objected to the Company's practice of laying them off out of seniority as it had been doing since the election. Santi also said that because of this experience on the part of the employees, the Union would strenuously object to any change in the Teamsters' proposal on senior- ity and that the Union would also insist on a provision that it be notified of impend- ing layoffs. Reynolds objected on the ground that the Company had the sole right to select those who were to be laid off. Another subject covered was the Respondent's use of an organization known as Manpower, Inc., for temporary labor. The Union objected to this practice on the ground that the Respondent should no longer resort to the use of an outside supplier of temporary help and that the work which the employ- ees of Manpower, Inc., performed was actually the work of employees in the bar- gaining unit. Reynolds disagreed on the ground that only full-time regular employ- ees should be considered in the bargaining unit. Reynolds also announced at this 10 Jones was laid off on December 18, January 12, 13, 20, 25, February 9, 19, 23, 25, 26, 28, March 22, 23, 24. 11 Porter was laid off on January 13, February 9, 19, 23, 25, 26, 28, March 2, 22, 13 Cline was laid off on December 18 23, 24. 13Donnelly was laid off on December 18 and February 26. 14 This was on February 26. 15 Eyer was laid off on December 18 and February 26. 16 Morton was laid off on December 18, January 13, 20, 25, and February 9, 23, and 26. 17 Penn's testimony was credible and was not denied or contradicted by Felges when he subsequently took the witness stand. CLOVERLEAF COLD STORAGE CO. 1489 meeting that the Company planned to grant all the employees a 10-cent-an-hour increase. He told the union delegation that whereas the Company would like to have their approval, the increase would be instituted notwithstanding any objections raised by the Union. Santa and his committee voiced their opposition immediately on the ground that such action by the Company at that time would have an adverse effect on the Union's bargaining position as to all the other issues. The next bargaining session was held on September 30. At this time, Santi told Reynolds that he had met with the employees on the question of whether to acqui- esce in the Company's plan to put a 10-cent wage increase into effect and that they were opposed to it. Santa went on to state that since the Respondent had asked at the outset of negotiations that the wage issue be held in abeyance and since wages had not, at that point, been the subject of any bargaining he felt that it was inappro- priate for the Company to consider putting the proposed increase into effect. Rey- nolds' only response was the declaration that regardless of whether the Union agreed, the Company would proceed to effectuate the wage raise. On October 11, the Respondent mailed the Union its counterproposal for a collective-bargaining agreement. Article XI of this proposal dealt with seniority. Apart from various sections defining the manner in which seniority was to be com- puted and retained, section 4 of this article read as follows: Sec. 4 The Company recognizes the principle of seniority in connection with layoffs and reemployment after layoffs and in the cases of filling of vacancies to the extent that where, in the judgment of the management, the qualifications of the employees involved to perform the work are substantially the same, the employee having the longer term of continuous service will be given the preference. The counterproposal was completely silent on the subject of wages. Article XVI, entitled "Wages" was followed by a large blank space on the sheet with only the term "To be held in abeyance" appearing thereon. On November 17 the parties met again. Santa told Reynolds that the employees could not agree to the Company's proposal on seniority because the latter would leave to the Employer complete discretion as to the selection of those to be laid off. Reynolds, however, stated that the Company would insist on the right to deter- mine who was qualified to work in case of layoffs or recalls, regardless of seniority. There was no discussion of wages at this meeting. On November 23, however, Rey- nolds wrote the Union that the Company desired to amend its counterproposal so as to provide for a 10-cent-an-hour wage raise to become effective on the date that the collective-bargaining agreement went into effect. On December 3, and before there had been any further discussion of the subject, Reynolds wrote the Union another letter proposing that the 10-cent wage raise go into effect on December 17. The next bargaining session was held on December 16. Santi raised the matter of the wage raise proposed in Reynolds' correspondence and stated that the employees objected to the Company's putting this into effect because there still had been no discussion of the subject at the bargaining table. Reynolds, however, asserted that the Company would effectuate the raise as planned. On the seniority issue, Reynolds reiterated that the Company was standing on the position stated earlier and to the effect that the Employer should reserve to itself the final decision as to who should be laid off and recalled as its counterproposal provided. The company representa- tive further stated that notwithstanding the Union's objections the Respondent would continue to use Manpower, Inc., as a source of temporary labor.18 During the course of the discussion on the Company's proposed wage rate, several of the employee members of the union committee joined in the debate and reiterated the view that the employees should not accept the 10-cent increase, because they felt that they were entitled to a wage rate that was as high as that which employees at other cold storage plants were receiving. When they also objected to the terms of the Com- pany's proposal on discharge of employees, Reynolds stated that any time the Com- pany wanted to get rid of a man, it would find a basis for doing so. At the close of the meeting, Santi told Reynolds that two of the employees had come to him the day 15 The Respondent did, in fact, continue to use Manpower, Inc., occasionally. At the hear- ing Reynolds testified that during the period from December 1965 through February 1966, the Respondent paid Manpower, Inc., approximately $152, for its services. This amount was, however, substantially less than the figure of $564 which was paid to that same organization during a comparable period 12 months earlier. 257-551-67-vol. 160-95 1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before to protest that they had been laid off. Santi repeated his longstanding objec- tion to the Company's practice of laying the men off without notice to the bargain- ing agent and requested that Reynolds take the matter up with the Respondent's management. Reynolds promised to do so, but Santi never heard anything further from him on the matter. On December 17, the Respondent put into effect the 10-cent increase. The notice to the employees read substantially as follows: As of check-in time this morning, December 17, all employees under the super- vision of Harold Jensen will receive a 10 cents per hour increase. This was offered to the employees September 23 and was rejected This was again offered December 3 and was turned down by the Union. We feel that this increase is overdue and that the employees have earned it. The Union will probably file an unfair labor practice.19 On January 3, 1966, the parties held their sixth bargaining session. The Union renewed its objection to the Company's 10-cent wage increase that had been effected the preceding month but to no avail. In a discussion of seniority, Reynolds stated once more the Company's position that it must retain the right to select who should be laid off and who should be recalled. When some of the employee members of the union committee protested that they were entitled to the protection which the union proposal on seniority would give them, Reynolds repeated the statement made at the preceding meeting to the effect that if he or the Company wanted to get rid of any of the men a basis would be found for such action. On January 6, the Company submitted a new counterproposal. However, it retained verbatim the earlier proposal on seniority 20 and it also had a provision on settlement of disputes, identical with one in its earlier proposal, whereby no arbi- trator could question the judgment of the Company in selecting employees for lay- off The Company's new counterproposal also contained, for the first time, a pro- vision on wages. On the other hand, this article only incorporated the 10-cent increase which already had been granted on December 17, 1965, and thereafter set forth minimum hiring rates of pay for three classifications of employees. No con- tract wage rate was proposed and the minimum rates set forth in the article were actually less than the rates which all of the employees were then being paid.21 On February 22 the parties met for the seventh time. Santi protested the provi- sion on wages in the Respondent's counterproposal. He told Reynolds and the com- pany representatives that the employees had turned down the offer on the ground that the rates were substandard, that they were less than the employees were actually getting at the time, and that the language of the proposal vested the Company with complete discretion as to whether the employees would ever get any raise. Reynolds replied that the Company would not give any more than had been proposed. He further stated that the Respondent felt that an economic depression was inevitable and that it could not offer any more than the minimum rates proposed because in the event of a recession, the Company would need "leeway to operate . by reducing the wage rates" from the level then being paid to that set forth in the pro- posed contract.22 One last meeting was held on March 31. The Union again protested the Respond- ent's position on seniority and wages. Numerous other provisions of the proposals and counterproposals were discussed. However, the Company did not modify its position and neither did the Union. Subsequent to this conference the parties did not meet again. Concluding Findings Seniority is a mandatory subject for bargaining. Industrial Union of Marine and Shipbuilding Workers v. N.L.R.B., 320 F.2d 615, 620 (C.A. 3), cert. denied 375 U.S. 984, N.L.R.B. v. The Proof Company, 242 F.2d 560, 562 (C.A. 7). Through- out the entire series of bargaining conferences the Respondent took the unyielding 19 The notice itself was not available at the healing The parties stipulated, however, that the language which appeals above fairly ielocted the wording used in the notice 20 As quoted supra, fi om article XI of the Respondent's counterproposal of October 11, 1966 =' For example, Morton, a warehouseman, was receiving $2 05 an hour in January 1966 The Company's proposal of that mouth, proposed merely it hiring rate of $1 65 for ware- housemen and a rate of $1 75 an hour atter completion of their probationary period 22 The quotation is from Santi's credible and uncontradicted testimony. CLOVERLEAF COLD STORAGE CO. 1491 position that seniority could not be the decisive factor in layoffs and recalls, and that the Company should have the authority to make the final determination on the basis of its own judgment as to which employees were best qualified for reten- tion or recall. This position on the part of the Company must be viewed in the light of the fact that from the very day after the election in August 1965, it initiated a series of sporadic layoffs in none of which it deigned to notify the Union in advance or make an effort to consult with the bargaining agent concerning any aspect of the layoffs. In its brief, the Respondent strenuously defends this practice on the ground that prior to the advent of the Union it had always acted unilaterally with respect to such matters. That, of course, was undoubtedly true, and until a majority of its employees designated a bargaining agent it had no duty to consult with anyone as to such management decisions. When the Union was certified, however, it could no longer enjoy this unlimited freedom, for the Act plainly placed upon the Employer the responsibility of bargaining with the employees' representative before effecting layoffs or taking other actions with respect to its employees' wages, hours, or working conditions. Notwithstanding frequent protests from the Union that it had not been notified of, or consulted about, an impending layoff, fiom the very first occasion when that occurred on August 6, 1965, the Respondent never there- after gave the Union any advance notice prior to taking such action nor did it ever offer to discuss with the bargaining agent any of the issues involved in the various layoffs and recalls here involved. This unilateral action was in itself unlawful and I find that by such conduct from December 17, 1965, through March 1966, the only layoffs and recalls here in issue, the Respondent violated Section 8(a)(5) and (1) of the Act. Aztec Ceramics Co., 138 NLRB 1178, 1179-80. enfd. as to this point, sub nom, International Brotherhood of Operative Potters, v. N.L.R.B., 320 F.2d 757 (C.A D.C.); United States Gypsum Company, 94 NLRB 112, 114-115. By the Respondent's insistence on a seniority clause that left the designation of employees for layoff and recall firmly in its control and by concurrently ignoring the Union with respect to the numerous layoffs and recalls which it effected during the period from August 1965 through March 1966, the Respondent demonstrated to the employees that it did not intend to acknowledge any responsibility for dealing with their designated bargaining agent on such matters. Judged by any standard, the Respondent's proposal on seniority allowed it to retain full control over seniority and offered the bargaining agent nothing. Since the Employer at no time sought to explain its attitude as having been dictated by a compelling business necessity, I conclude and find that the Respondent's firm adherence to this position throughout the negotiations was a manifestation on its part that it did not really care to reach a binding agreement with the Union on this issue. White's Uvalde Mines, 117 NLRB 1128, 1129-30. In so doing the Respondent further violated Section 8(a)(5) of the Act. The Respondent's conduct with respect to the wage issue is on a parallel with the manner in which it treated the seniority question. In the early stages of its negotia- tions with the Union, the Respondent refused to discuss the wage issue on the ground that the matter was one on which all negotiation should be deferred until later. Then, in mid-September it stated that it planned to put a 10-cent wage raise into effect immediately and that it would do so whether or not the Union agreed. Notwithstanding the Union's immediate and continuing objection that the matter of a wage increase should be resolved along with all the other issues involved in finalizing a contract, the Respondent announced in early December that it was putting the raise into effect on December 17. Thereafter the Respondent did so, and made the announcement of this action to its employees in a manner that disparaged and belittled the role of their bargaining agent in the contemporaneous negotiations. The Respondent's unilateral action with respect to this wage increase was in derogation of the bargaining rights of its employees' designated representa- tive and violative of Section 8 (a) (5) and (1) of the Act. N.L.R.B. v. Benne Katz d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 743-747, N.L R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 223-225; May Department Stores v. N.L R B., 326 U.S. 376, 384-385. Whereas the Respondent insisted that this 10-cent increase was necessary to provide its employees an adequate wage, thereafter it refused to agree to any contract wage rate which would guarantee the employees the very wage they were then making. Not until January 6, 1966, did it propose a contractual provision on the subject of wages. Then, its counterproposal of that date merely included an article which purportedly established a minimum wage level. In fact, this level was below the wage rates which all of its employees were then being paid. 1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to wage demands, there is, of course, no requirement in the Act which imposes on an employer the obligation to grant an increase merely because a union makes such a request. American Sanitary Wipers Company, 157 NLRB 1092; Grinnell Company, 153 NLRB 1334; Empire Terminal Warehouse Co., 151 NLRB 1359. On the other hand, the right to refuse to agree to a particular proposal or to make a concession may not be used "as a cloak . to conceal a purposeful strategy to make bargaining futile or fail." N.L.R B. v. Herman Sausage Company, 275 F.2d 299, 232 (C.A. 5). Cf., H. K. Porter Company, Inc. v. N.L.R.B., 363 F.2d 272 (C.A.D.C.). Although at the outset of negotiations the Respondent sug- gested that the subject of wages be held in abeyance, it thereafter proceeded to announce that its employees needed a 10-cent-an-hour increase to have an adequate wage and that regardless of the Union's attitude, it would put such an increase into effect. Having taken this action unilaterally, it thereafter refused to offer any contract provision on wages other than a proposal that would fix an alleged mini- mum starting rate, a rate that, in fact, was below the rates which its employees were currently receiving. In support of this position the Respondent argued that it anticipated an economic recession and, therefore, had to have the leeway nec- essary to reduce the wages of its employees in the event of a depression. Curiously, during this same period, the president of the Respondent was announcing to the public that the Company planned a substantial expansion of its.plant facilities in Sioux City.23 In substance, the Respondent was proposing that the finalized collec- tive bargaining not even require that the Company maintain the status quo, much less provide for a wage increase. In pressing the Union to the point of impasse on acceptance of a wage level even lower than the employees were then receiving, the Respondent must have known that the Union would never agree. The Respondent's attitude in this connection, its consistent rejection of all efforts by the Union to secure a contract wage rate, and its unilateral action with respect to the 10-cent increase that it put into effect in December 1965, cause me to conclude and find that the Respondent maintained this attitude as to wages for the purpose of frustrating agreement with the Union. In so doing, it violated Section 8(a)(5). On the eve of the representation election, General Manager Feiges, told employee Morton that if the Union won "he . . . wasn't about to agree to anything that [it] wanted . . . there was bound to be a strike and . . . if there was a costly strike he would close the plant . . . ." To Donnelly, another employee, he predicated that in the event of a union victory the employees "would have to go on strike to get what [they] wanted and if [they] did, he would bring men in from Mankato to work . . . ." As its principal operating official at the Sioux City plant, Feiges per- sonally participated in several of the bargaining sessions. The opposition to union- ization of his employees, as manifested by Feiges in the preelection period, and the strident foiecasts as to the difficulties which the Union would have in securing any benefits for the men, or even a contract, are relevant background evidence as to the subsequent bona fide character of the Respondent's approach to bargaining with the election victor. Stark Ceramics, Inc., 155 NLRB 1258; Reeves Broadcast- ing & Development Corporation, 140 NLRB 466, 467-468. The performance of the Respondent in its negotiations with the Union during the ensuing months must be viewed in the light of this background. Consequently, I conclude and find that the Respondent's adamant insistence on a seniority clause that vested solely in the management the selection of those who would be laid off or recalled, its unilateral layoffs and recalls of many of the employees throughout the bargaining period, its unilateral effectuation of a wage increase notwithstanding the Union's opposition and, thereafter, its refusal even to agree upon a guarantee that the employees would continue to draw their current wages, all establish that the Company's posi- tion on these subjects throughout the negotiations was motivated by a desire to defeat, rather than to promote, an agreement. N.L R.B. v. Reed & Prince Manu- facturing Company, 205 F.2d 131 (C.A. 1), cert. denied 346 U.S. 887; East Texas Steel Castings, Inc., 154 NLRB 1080. In view of the facts found above with respect to the Respondent's conduct during the negotiations, considered along with the background evidence as to the Respondent's opposition to union organization gen- erally, it is my conclusion that the Respondent's entire course of action through- out the bargaining conferences was lacking in good-faith desire to arrive at a final agreement in its negotiations with the Union. For this reason, I conclude At the hearing, Feiges conceded that President Kaplan had recently made such an announcement. CLOVERLEAF COLD STORAGE CO. 1493 and find that the Respondent's violation of Section 8(a)(5) and (1) commenced on September 8, 1965, the date on which it met with the Union for the first bar- gaining session. Cabinet Manufacturing Corporation, 140 NLRB 576, footnote 2. E. The unilateral lavolJs, including that of Jon Morton; contentions of the parties; findings and conclusions with respect thereto As found earlier herein, during the period from December 17, 1965, through March 24, 1966, the Respondent laid off employees Morton, Eyer, Hughes, Don- nelly, Jones, Cline, and Porter for periods of from 1 to 4 days each. Some of these employees, such as Morton, Eyer, Donnelly, Jones, and Porter were laid off two or more times during those months. It has already been found that the layoffs of this period, unilaterally affected by the Respondent and in defiance of its obligation to accord the majority repre- sentative an opportunity to confer about the problems of the employees there involved, constituted a violation of Section 8(a)(5) and (1) of the Act. If the Respondent had adhered to its obligation to give notice to, and consult with, the Union, as to these layoffs, some of the employees effected might very well not have been laid off. This would almost certainly have been the case if seniority had been followed. Morton and Eyer, for instance, were senior to almost all the other employees in the plant. Yet both of them were laid off more than once in the December to March period in question. Had their bargaining agent been given an opportunity to consult with the Respondent as to their impending layoffs, others might have been selected, assuming, that is, that the layoffs were, in fact, motivated solely by economic considerations. In any event, the penalty for this disregard of the Respondent's statutory obligation should not be borne by the employees, but by the party to this action which chose to ignore its responsibilities under the Act.24 For that reason, in this case, I will recommend that the Respond- ent be required to make whole Morton, Eyer, Donnelly, Jones, Cline, and Porter 25 for any loss of pay which they suffered by the layoffs in question. Rose Printing Company, Inc., 146 NLRB 638, 639; Bethlehem Steel Company (Shipbuilding Division), 147 NLRB 977, 978-979; The Crestline Company, 133 NLRB 256, 258; Aircraft Specialties, Inc., 148 NLRB 1127, 1131; Cities Service Oil Company, 158 NLRB 1204; cf., Royal Plating and Polishing Co, 148 NLRB 545, 548-550. The General Counsel also alleged that the layoffs of Morton in the period from December to March were discriminatorily motivated and thereby violated Section 8(a)(3), as well as Section 8(a)(5). There is support in the record for the allegation that the treatment of Morton was discriminatory. He was a prominent union advocate from the outset of the organizational campaign in the spring of 1965, he was the subject of various con- versations with General Manager Feiges wherein that official endeavored to dis- suade Morton from continuing his adherence to the Teamsters, he was a member of the employee committee that served throughout the collective-bargaining nego- tiations, and he was laid off at times when those junior to him in seniority were retained. In addition, of course, there is the uncontradicted testimony that during the fall of 1965 Feiges stated that in selecting men for layoffs the Respondent considered whether the employee was a supporter of the Union or the Company. Whereas the Respondent submitted some evidence to establish that the layoffs of Morton and the other employees resulted from lack of work, there is no evidence that at such times any serious effort was made by the Company to keep senior employees such as Morton on the job. On the other hand, notwithstanding the evidence in the record that the Respond- ent was discriminatorily motivated in making the various layoffs to which Morton 2' "It is the Board 's customary policy to direct a respondent to restore the, status quo where respondent has taken unlawful unilateral action to the detriment of its employees " General Telephone Company of Florida, 144 NLRB 311, 316, entd . as modified 337 F 2d 452 (CA 5) ^, As found above , Simon Hughes was among those unilaterally laid off during the period in question , having been off for 1 day in February 1966 Hoinevei the General Counsel did not allege that his layoff was a violation of Section 8(a) (5) and (1) Whether this was because Hughes, v ho was a floorleader , had duties of a supervisory nature over and above those of other woiking foremen, does not appear In any event, because the complaint had no allegation as to his particular lavoft , his name is not included in the remedial order that appears hereinafter 1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was subjected during the period in question, it is unnecessary to resolve that issue here The finding that the Respondent violated Section 8(a)(5) and (1) by the layoffs of Morton and that of the other employees during the period in question requires a remedial order compelling the Respondent to make him whole for any loss of pay resulting from this unlawful action. Since this type of remedy provides essentially the same relief as would be accorded with respect to a violation of Section 8(a)(3), if found, no purpose would be served by any further analysis or consideration of this last-mentioned allegation of the General Counsel. C & S Industries, Inc., 158 NLRB 454. 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 Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Since it has been found that the Respondent refused to bargain in good faith with the Union and engaged in various unilateral action in derogation of its employees' rights, it will be recommended that the Respondent be ordered to bar- gain collectively with the Union, upon request. It will also be recommended, for the reasons set forth earlier in this Decision, that the Respondent be ordered to make whole Jon Morton, Keith Eyer, Glen Donnelly, Albert Jones, Robert Cline, and Franklin Porter for any loss of earnings suffered during the periods when they were laid off from December 17, 1965, through March 24, 1966. Such loss of pay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolwo,th Company, 90 NLRB 289, 291-294, with interest thereon at the rate of 6 percent per annum in accord with the decision of the Board in his Plumbing & Heating Co., 138 NLRB 716.26 CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organiza- tion, all within the meaning of the Act. 2. All employees of the Respondent at its operations in Sioux City, Iowa, exclud- ing refrigeration engineer-mechanics, office clericals, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 3. At all times since August 5, 1965, the Union has been the exclusive repre- sentative, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, of all the employees in the aforesaid appropriate unit. 4. By the Respondent's unilateral action in laying off and recalling employees at will without prior consultation and bargaining with the Union, 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. By the Respondent's unilateral grant of a wage increase without prior con- sultation and bargaining with the Union, 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. 6. By refusing to bargain collectively and in good faith with the Union as the certified exclusive bargaining representative of its employees in the aforesaid appro- priate unit on September 8, 1965, and at all times thereafter, 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. - Whereas this affirmative action is found necessary to restore the status quo and remedy the effects of the Respondent's unilateral action as to layoffs and recalls, nothing hciein shall be construed as icquiring the Respondent to rescind the unilateral wage in- crease which it made effective on December 17, 1965 The Press Company, Incorporated, 121 NLRB 976, 981, Crown Tar and Chemical Works, Inc., 154 NLRB 562. CLOVERLEAF COLD STORAGE CO. 14015 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Cloverleaf Cold Storage Co., its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with General Drivers Union Local No. 383, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, as the certified exclusive bargaining representative of all the employees at its Sioux City plant, excluding refrigeration engineer-mechanics, office clericals, guards, and supervisors as defined in the Act. (b) Instituting changes in the terms and conditions of employment in the afore- said appropriate unit, such as wage increases and economic layoffs and recalls, with- out first consulting with and bargaining with the aforementioned exclusive repre- sentative concerning wages, hours , and conditions of employment (c) In any manner delaying or obstructing the efforts of the aforesaid Union to bargain with Cloverleaf Cold Storage Co. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request , bargain collectively in good faith with General Drivers Union Local No. 383 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , as the exclusive representative of the employees in the aforestated appropriate unit with respect to rates of pay, wages , hours , and other conditions of employment , and, if an understanding is reached , embody such under- standing in a signed agreement. (b) Make whole Jon Morton , Keith Eyer, Glen Donnelly, Albert Jones, Robert Cline, and Franklin Porter for any loss of earnings suffered, in the manner set forth in the section of this Decision entitled , "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Recommended Order. (d) Post at its premises in Sioux City, Iowa, copies of the attached notice marked "Appendix." 27 Copies of said notice , to be furnished by the Regional Director for Region 18, after being duly signed by the Respondent 's authorized representative, shall be posted by it upon receipt thereof , and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 18, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.28 n In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in 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." 28 In the event that this Recommended Order is 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 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, as amended, we hereby notify our employees that: WE WILL NOT institute changes in the terms and conditions of employment in the appropriate unit herein without first consulting with and bargaining with 1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Drivers Union Local No. 383, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of such employees. WE WILL make whole Jon Morton, Keith Eyer, Glen Donnelly, Albert Jones, Robert Cline, and Franklin Porter for any loss of earnings suffered as a result of the discrimination against them. WE WILL, upon request bargain collectively in good faith with the aforemen- tioned labor organization as the exclusive bargaining representative of the employees in the following appropriate unit with respect to rates of pay, wages, hours, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees in our plant in Sioux City, Iowa, excluding refrigeration engineer-mechanics, office clericals, guards and supervisors as defined in the Act. CLOVERLEAF COLD STORAGE CO, Dated------------------- By------------------------------------------- (Representative) (Title) Employer. 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 316 Fed- eral Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 334-2618. Tennessee Packers, Inc., Frosty Morn Division and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 405. Case 06-CA-1545. September 30, 1966 SUPPLEMENTAL DECISION AND ORDER On February 27, 1964, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding,' finding, inter alia, that the Respondent had discriminated with respect to the recall after a layoff of Nora Ann Black, Shirley Holt, and Myrtle Lane, in violation of Section 8 (a) (4) and (1) of the National Labor Relations Act, as amended, and directing that the Respondent offer said employees immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings suffered by reason of the Respondent's dis- crimination against them. Thereafter, on May 4, 1965, the Board's Decision and Order was enforced by Decree of the United States Court of Appeals for the Sixth Circuit.2 On November 9, 1965, the Board's Regional Director for Region 26 issued a backpay specification and notice of hearing to which the Respondent duly filed an answer. Upon appropriate notice issued by the Regional Director, a hearing was held before Trial Examiner 1146 NLRB 165. 2 344 F 2d 948 160 NLRB No. 120.