Martin White, Jr., Inc.

520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin White , Jr., Inc. and Construction Building Material Drivers, Warehousemen and Helpers Union No. 311 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Case 5-CA-3071. June 19, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On January 17, 1967, Trial Examiner Harry H. Kuskin 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 Decision. Thereafter, the Respondent filed exceptions to the 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. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in the case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Martin White, Jr., Inc., Baltimore, Maryland, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 ' Respondent's request for oral argument is hereby denied as the record , exceptions , and brief adequately present the issues and positions of the parties S The address and telephone number for Region 5, appearing at the bottom of the notice attached to the Trial Examiner's Decision, is amended to read : Federal Building , Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 962-2909. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Trial Examiner: This proceeding was heard at Baltimore, Maryland, on July 8, 1965, and April 27, 1966.1 It stemmed from the aborative efforts of Construction Building Material Drivers, Warehousemen and Helpers Union No. 311, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, the certified bargaining agent' of a plantwide unit of employees of Martin White, Jr., Inc., herein called Respondent 3 to negotiate with Respondent a collective-bargaining agreement on behalf of the above employees. The complaint, which was amended at the hearing, issued on May 5, 1965. The question presented is whether Respondent has violated Section 8(a)(5) of the Act by refusing to bargain in good faith with the Union. Respondent does not deny the status of the Union as a labor organization ; in addition, it admits that a unit of all its employees employed at its 4546 Annapolis Road (Baltimore, Maryland) location, as alleged in the complaint, is appropriate, that a majority of its employees in such unit had, on December 28, 1964, designated and selected the Union as their bargaining representative in a secret-ballot election in Case 5-RC-4963 and, in consequence , the Regional Director of Region 5, on January 6, 1965, formally certified the Union as such exclusive bargaining representative; and that it is engaged in commerce within the Act's meaning. However, Respondent denies that it engaged in any unfair labor practices. Upon the entire record, including my observation of the witnesses and after due consideration of the briefs of the General Counsel and Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaint, as amended, alleges, and Respondent admits, that Respondent is a Maryland corporation and has its principal place of business at 4546 Annapolis Road, Baltimore, Maryland, where it is engaged in the crushing, screening, sale, and delivery of cinders; and further, that during a representative 12-month period it sold and delivered products valued in excess of $50,000 to, and/or performed services valued in excess of $50,000 for, enterprises located in Maryland and which annually ship goods valued in excess of $50,000 directly outside Maryland, and/or annually performed services valued in excess of $50,000 outside Maryland, and/or received goods, materials, and products valued in excess of $50,000 directly from points located outside Maryland. I find, upon the foregoing, that Respondent is engaged in commerce within the meaning of the Act. During the hearing on July 8 , 1965, the parties agreed to an informal settlement of the matters involved . Whereupon, I adjourned the hearing sine die. However, the settlement agreement , which was approved by the Regional Director on July 9, 1965, was thereafter set aside by him on March 29, 1966, on the grounds of noncompliance , and a motion was filed by counsel for the General Counsel to reopen the record for further proceedings . On April 8, 1966, 1 granted the aforesaid motion and reopened the record for further hearing to be held on April 27, 1966 2 Although counsel for the Union indicated that since the certification the name of the Union has been changed , that he would take steps to have the Union's name amended on the certification and that I would be advised thereof, I have not been so advised and so far as appears the Union's name on the certification has not been amended 3 The name appears as amended at the hearing. 165 NLRB No. 81 MARTIN WHITE, JR., INC. 521 II. THE LABOR ORGANIZATION INVOLVED The complaint, as amended, also alleges, and Respondent does not deny, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background-Sequence of Events Sometime before December 1, 1964, the Union hand delivered to Martin J. White, Jr., the president and sole stockholder of Respondent, a letter asserting that the Union represented a majority of his employees and requesting recognition. After some correspondence between counsel for Respondent herein and counsel for the Union herein, the Union, on December 1, 1964, struck for recognition and picketed the plant of Respondent. Thereafter, the Union filed a petition with the Regional Director for Region 5 in Case 5-RC-4963. This was followed by a stipulation for certification upon consent election between the parties, approval thereof by the Regional Director, and an election on December 28, 1964, which the Union won. On December 29, 1964, the Union sent a letter to Respondent enclosing its contract proposals. On January 6, 1965, the Union was certified as the exclusive bargaining representative of a plantwtde unit of Respondent's employees. Over the ensuing period down to and including April 19, 1965, the parties met five times for purposes of negotiating a collective-bargaining agreement but no agreement was consummated. There has been further picketing since the Union's certification.` So far as appears, the picketing lasted until January 5, 1966. The picket signs during the postelection period changed the legend from that of refusal of recognition of the Union by Respondent to that of refusal to bargain in good faith.' Also, on March 3, 1965, the charge herein was filed and on May 5, 1965, the complaint issued. The parties had another negotiating session on May 6, 1965. This was the last session before the hearing herein on July 8, 1965. As already indicated, during the course of the hearing on July 8, the parties agreed to an informal settlement of the matters involved and, on July 9, the settlement agreement was approved by the Regional Director. Subsequent thereto, certain steps were taken by Respondent, with respect to counterproposals and a financial statement, in its efforts at compliance with the settlement agreement. No meeting between the parties looking toward bargaining occurred, however, until November 29, 1965. In the interim, on September 25, Martin J. White, Jr., Respondent's president and sole stockholder, died, leaving a will. In consequence of probate proceedings, Spedden, counsel for Respondent, because of the refusal to serve by the coexecutor named with him in the will, became the sole executor of the decedent's estate on November 9. The will provides, in substance, in paragraph 3, that the testator authorizes and empowers the executor, in order to expedite and facilitate the administration and distribution of his estate, to liquidate "within one year after [his] death," the capital stock, inter alia, of Respondent, of which company he is "the sole owner or stockholder," and expressly authorizes and empowers the executor to sell all the assets of Respondent, and especially the plant and property, in fee, known as 4546 Annapolis Road with improvements thereon, and including inventory and stock thereon, the funds thereof to remain as part of the corpus of the estate. The will further provides, in relevant part, in paragraph 4, that pending the sale of the assets of Respondent and "for a period not to exceed one year after [the testator's] death," the testator expressly authorizes, directs and empowers said executor "to continue the operations" of Respondent and "to carry out, complete and fulfill any contracts existing at the time of [the testator's] death" to which contracts Respondent is a party. As already noted, the first meeting after White's death, occurred on November 29, 1965. At this meeting and at subsequent meetings on December 17, 1965, and on April 27, 1966, no progress was made in settling the terms of a contract because Spedden kept raising the question of (1) his authority under the will, in view of the above-recited provisions, to enter into a contract, and (2) his potential personal responsibility, if he entered into a contract and had no such authority. While he vacillated at times, indicating that he might attempt to negotiate, he never did actually negotiate. As of the time of the reopened hearing on April 27, 1966, Spedden had not changed his position. B. The Bargaining Sessions and the Accompanying Eventss 1. The bargaining sessions prior to the informal settlement agreement The first negotiating session occurred on January 6, 1965, in the office of President White of Respondent. Present on behalf of the Union were Cremen and Leo Da Lesio, business manager of the Union; and in behalf of Respondent, White and Spedden, Respondent's counsel herein. The Union went through its proposed contract, Respondent agreeing as to some clauses but leaving most of the contract for future negotiation. With particular reference to a wage increase, Respondent indicated that there would be no raise for employees and gave no reason therefor, although asked to do so by the Union. The date of the next meeting was, at Respondent's insistence, left to Spedden. Due to the hospitalization of White on or before January 8, because of illness, Spedden delayed setting up the next meeting. However, within about a week, White left the hospital. When pressed by Abato to schedule a meeting, Spedden advised that because White was very sick,7 it was difficult to "pin White down." Abato insisted that, if White would not meet, then White should appoint I The extent of the hiatus in picketing , if any, is not apparent from the record 5 Although the complaint alleges that the strike became an unfair labor practice strike, the General Counsel adduced insufficient evidence as to this allegation to warrant any finding thereon. 9 The testimony as to the various bargaining sessions relied on herein was given by witnesses for the General Counsel and was uncontroverted. Robert Milton Cremen, vice president of the Union, testified as to the first three sessions, while Cosimo C. Abato, counsel for the Union herein, testified as to the remaining sessions and as to developments during the periods between each bargaining session At one point in the hearing, 'counsel for Respondent volunteered that the notes on his own copy of the Union's proposed agreement are "almost precisely the same as" testified to by Cremen Both Cremen and Abato impressed me as reliable witnesses and I credit their testimony. r White was suffering from terminal cancer 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD someone with authority to act for him. According to Abato, Spedden replied that White would not appoint anyone with authority to act for him. Thereafter, on January 28, Spedden called Abato to advise that there would be a meeting on January 29 at noon in White's office. The same individuals were present at the second negotiating session. The meeting lasted about 20 minutes. A couple of clauses in the agreement were discussed; but due to the fact that White and Da Lesio "had words" between them, White ordered the Union's representatives out of his office. Spedden indicated at that time that he would get in touch with Abato and arrange for another meeting. Such a meeting, after several telephone calls between Spedden and Abato, which the latter initiated, was set by Spedden for February 12 at White's office. The third negotiating session was held, as indicated, on February 12. Present on behalf of the Union were Albert Evans, International representative, and Cremens; and, on behalf of Respondent, Spedden and one Warren Parker." Spedden explained that White was sick and could not attend and that he was acting for White. Thereupon, each clause of the contract was discussed, with Spedden stating a position on many of the provisions, agreeing as to some, disagreeing as to others, refusing to put in writing certain provisions, although they reflected Respondent's present practice, and leaving others for future negotiation." During this discussion, Spedden indicated that Respondent was opposed to having a union shop steward in the plant as proposed by the Union.10 Spedden also opposed giving the employees a wage increase, but when Evans proposed an increase of 15 cents to be used as the Union saw fit, in wages or health and welfare pension payments, Spedden agreed to take this up with White. At the close of the meeting, Spedden agreed to discuss all these matters with White and to prepare counterproposals thereon over the next weekend and mail same to Abato. He then stated that he was just acting for White rather than on White's behalf. No counterproposals were submitted as of the next meeting, which occurred on February 22. During the intervening period, Abato and Spedden were in telephonic communication and Spedden reported, on February 16, that White had just been operated on and that he had not talked to White, as yet. Although Spedden promised to talk to White and have written counterproposals in time for a meeting on February 19, he appears to have had further difficulty in contracting White and the meeting was therefore reset by Spedden for February 22. At this fourth negotiating session, White, Spedden, and Parker represented Respondent, and Abato and Da Lesio represented the Union. No counterproposals were produced by Respondent, Spedden explaining that he had not prepared them yet. The initial discussion related to the Evans' proposal at the prior meeting of a 15-cent-an-hour increase to employees to be paid as the employees decided. White asserted that Respondent could not afford 15 cents or anything else in the way of money, as he could not change his contracts with his customers or with his suppliers which provided for certain sums, and they just 8 Parker is an independent contractor who does hauling for Respondent B In some instances , there were changes of position by Respondent from that previously taken at the January 6 meeting 10 Spedden stated that Respondent would not have a shop steward "in a small place like that " 11 According to Abato. the statement was not the one shown to could not afford to pay more under those contracts which he could not change. White refused the Union's request for details of his business arrangements with his customers. At this point, Abato demanded a financial statement from White for the year 1964 and brought up to date. Whereupon, White did produce a financial statement which he claimed would support his position that Respondent was not making any money and could not pay any more in wages. Abato looked at the statement, but it appeared to him that the statement did not support White's claims. Abato then asked for the statement but White refused, claiming it was the only copy he had. When White also refused Abato's request for permission to make a copy of the statement, Abato suggested that Respondent could have a copy made and sent to him. There followed an examination of the Union's proposed contract to see where the parties stood. Respondent, in substance, again agreed as to some clauses, disagreed as to others, deferred on still others, and was firm in its rejection of those clauses relating to economic matters and as to having a union shop steward in the plant. At the close of the meeting, Spedden promised again to provide the Union with written counterproposals. As to the request by Abato for financial statements, Spedden indicated that he would get a financial statement from Respondent's accountant. The parties met for their fifth negotiating session on April 16. As of March 2, Abato learned from Spedden, whom he called on the telephone, that White was in the hospital and there could be no meeting until White was available; that he, Spedden, was working on written counterproposals and would send them and the financial statements as soon as he received the latter from Respondent's accountant. At that point, Abato said, "they were sick of waiting around and stalling around" and that he was going to file an unfair labor practice charge with the Board. On March 3, the instant charge was filed. Abato did not hear from Respondent for about a month thereafter. However, on April 9, Spedden called Abato about a meeting, and such a meeting was held at a mutually agreeable time on April 16. At the April 16 session , White, Spedden, and Parker were again present for Respondent; Cremen and Abato were present on behalf of the Union. Spedden furnished a financial statement to the Union and said that Respondent could not give any money when it is not making any, as shown by the financial statement. White added that Respondent was making a profit of only $1,500 a year and had, since the strike, lost five contracts." As to the counterproposals, they were not produced at that time, and Abato pointed out that such counterproposals were the basis for working out any clause. White volunteered that Respondent had asked for the meeting in order to produce the financial statement ; and Spedden added that they also wanted to see if the Union had any questions about the statement , and, if so, the Union should present them by letter to him, and he, Spedden, would get answers thereon from the accountant. No negotiations took place at this meeting. With respect to meeting again , no date was fixed because, as Spedden explained, White had hospital him on February 22 That statement related only to Respondent corporation, whereas this one was a "sort of combined statement" of Respondent corporation and Martin White Company, a holding company He also testified that he asked White to show him where he, White, got the $1,500 profit, but White was unable to do so MARTIN WHITE, JR., INC. 523 appointments for the next two Mondays. Spedden agreed to call Abato the following week in order to set up the next meeting. By letter dated April 19, 1965, Abato wrote to Spedden asserting that the financial statement furnished at the last meeting "was obviously made up for the purpose of furnishing certain information to the Union" and "in no way supports Mr. White's assertion that Martin White, Jr., Inc. made a profit of only $1500 last year." The letter said further that, since this statement is not what the Union requested at the meeting of February 22, he, Abato, was reiterating the request of that date "that [Spedden] furnish to [him] a copy of the financial statement which Mr. White showed [him] on that date but would not let [him] have, and about which he [White] now states that he does not know the whereabouts." The letter concluded by insisting that Respondent discontinue its practice of meeting only twice a month and that, instead, negotiations occur at "reasonable and realistic intervals so that an agreement can be reached." By answering letter of April 22 to Abato, Spedden stated that he resented "any innuendo of falsification" in the letter and defended the statement as one prepared by Respondent's certified public accountant and as a copy of a regular statement given to White by the accountant in the regular course of business. Although this letter indicated that Spedden would arrange for another meeting between the Union and Respondent during the week of April 26, no such meeting was held during that week; Spedden explaining that his plans to hold such a meeting on April 30 were put off because a representative of the Board had made an appointment with him for that date. In accordance with a suggestion in this letter, a meeting was thereafter held on May 6. The sixth negotiating session was attended by White, Spedden, and Parker for Respondent and by Cremen, Da Lesio, and Abato for the Union. Abato apprised Respondent that the complaint herein had already issued.'2 Spedden thereupon examined a copy of the complaint, which copy Abato had in his possession. Spedden then gave the Company's position with respect to the complaint as (1) "no raise was possible, no money in any way," (2) if the Union wanted information on finances it should put its request in writing and he would have the accountant furnish the answer," and (3) there could be no shop steward. Spedden asserted further that since the complaint had already issued and since the Union would not agree to doing without a wage increase, nothing could be gained by talking any further. He agreed to prepare and submit to Abato in about 10 days a memo as to Respondent's position on those articles in the Union's proposed agreement to which Respondent did not agree, and to prepare proposed language in such cases. Abato renewed his request for the copy of the financial statement shown to him by White at the February 22 meeting or, in lieu thereof, Abato wanted to have the Union's accountant audit Respondent's books for 1964 and to date. Spedden responded that he would give Abato Respondent's position thereon in the above-mentioned memo. The meeting adjourned without any negotiations taking place. As of the time of the hearing herein on July 8, 1965, no written counterproposals and no further financial statements had been forwarded to Abato, although Abato had written Spedden on May 28 reminding Spedden of the latter's agreement to do so in about 10 days. 2. The informal settlement agreement and the events subsequent thereto As already noted, although an informal settlement agreement was entered into by the patties during the course of the hearing on July 8, 1965, that settlement agreement was thereafter, on March 29, 1966, set aside by the Regional Director on the grounds of noncompliance. The settlement agreement provided that Respondent would bargain collectively in good faith with the Union in the appropriate unit and would take the following affirmative steps: (1) submit written counterproposals within 21 days of the Regional Director's approval of the informal settlement agreement; (2) meet with the Union at neutral locations; (3) furnish the Union within the same 21 days a financial statement for the year 1964, and any additional financial statements for the period from January 1, 1965, to date; (4) meet with the Union at such reasonable times as the circumstances may dictate; and (5) in the absence of its president, Martin J. White, Jr., designate a representative with the full authority to negotiate a final collective-bargaining agreement. The agreement also included a nonadmission-of-liability clause and provided for the posting of the customary 60-day notices. Although Respondent did thereafter post notices and submit written counterproposals and a financial statement on July 28, 1965, and a further financial statement on September 25, 1965,'" no bargaining has ever taken place. Indeed, so far as Respondent was concerned, its change of position was due to changed circumstances. As appears hereinafter, these consisted of the facts that Martin J. White, Jr., the sole stockholder and owner of Respondent, had died on September 25, 1965, and had made provisions in his will for the executor of his estate (Spedden) to liquidate within 1 year the capital stock of Respondent and had empowered such executor to sell the plant and property involved herein, in fee, with improvements thereon, inventory and stock; and further, pending the sale of Respondent's assets and "for a period not to exceed 1 year after [the testator's] death," the executor (Spedden) was to continue the operations of Respondent and "to carry out, complete and fulfill any contracts existing at the time of [the testator's] death" to which contracts Respondent is a party. The first meeting after White's death occurred on November 29, 1965. This meeting was convened at the Board's Regional office in Baltimore, Maryland. Present were Abato, counsel for the Union; Cutman, counsel for the General Counsel herein; and Spedden, counsel for Respondent and also executor of the estate of Martin J. White, Jr. At that meeting, Spedden expressed doubt as to whether he had the authority to enter into a contract which would burden the estate and indicated that, after checking into his authority to do so, he would advise whether or not he would continue bargaining. On December 17, 1965, another meeting was held between Spedden and Abato. Also present was Cremen, " As heretofore found, the complaint issued on May 5, 1965. " The Union had complained upon receipt of the data on 's As already appears, Abato had already put such a request in July 28 about the inadequacy of the counterproposals in that they writing, but no answer had as yet come forth Abato mentioned were not in the form of a contract and were unclear, and about the this fact to Spedden at this time financial statement in that it was not complete enough. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vice president of the Union. Spedden stated at that time that he did not think he had the authority to burden the estate, that he was in a different position respecting negotiating a contract from that of White during his lifetime, because White had to answer to no one in such matters whereas he had to answer to the beneficiaries of the estate of White. The meeting adjourned without any negotiations taking place, but with the understanding that, if the Union would draft a form of agreement based on Respondent's counterproposals of July 28, 1965, Spedden would consider it. The Union forwarded a new proposed agreement on March 24, 1966. However, on March 25, Spedden met with Gutman, counsel for the General Counsel, and advised him that "he could not enter into a contract which would burden the business or hold up dissolution [of Respondent corporation]." Thereafter, on March 29, 1966, the aforementioned settlement agreement was set aside by the Regional Director on the grounds of noncompliance, and on April 8, 1966, I granted the motion of counsel for the General Counsel to reopen the record. The parties held one further meeting on April 26, the day before the reopened hearing on April 27, 1966. Present were Abato, Spedden, and some union representatives. At this meeting, Spedden, in effect, told those assembled of his meeting with Gutman and of his remarks to Gutman, set forth above. Spedden said further that, in less than 2 months the business would be closed down and "he just didn't have the authority to enter into a a contract.... He could not take it upon himself to sign a contract because then he might be responsible because of this kind of a negligent act and he just wasn't going to take that problem upon himself." Spedden explained that he had not contacted Abato after he received the Union's new proposed contract which was sent him on March 24, 1966, because on March 29, 1966, he received the aforementioned motion to reopen the record herein. So far as appears, there have been no further meetings or communications between the parties. 3. The Regional Director's action of setting aside the informal settlement agreement In passing upon whether or not the Regional Director acted properly in setting aside the settlement agreement, I find it unnecessary to decide whether Respondent adequately complied with that portion of the agreement requiring it to submit written counterproposals and to furnish a financial statement for the year 1964 and any additional statements for the period thereafter. For, it is apparent that the requirements that Respondent meet with the Union at reasonable intervals and at neutral locations and bargain collectively in good faith with the Union were never fulfilled. In this connection, it is the position of Respondent that, although White had unwillingly designated Spedden with full authority to negotiate a collective-bargaining agreement, the picture changed with the death of White. As Spedden himself testified, "the reason that there hasn't been any more done as to specific items in the proposals of White or this contract submitted on March 24th is because I felt that my position as an Executor should be clarified." Indeed, as 15 Cf. Winn•Dtxte Stores, Inc , 147 NLRB 788, and cases cited therein; see also N L R.B. v Royal Plating and Polishing Co , 350 F.2d 191 (C.A. 3), holding that where , under the circumstances, there was no duty to bargain respecting the employer's decision to already found, on March 25, Spedden met with Gutman, counsel for the General Counsel herein, and advised that "he could not enter into a contract which would burden the business or hold up dissolution [of Respondent corporation]." Obviously then, instead of manifesting an intention to comply with the bargaining requirements of the settlement agreement, Respondent has, since the death of Martin J. White, Jr., and the probate of his will, manifested the contract; i.e., an unwillingness to bargain as therein required. Respondent seeks to justify this unwillingness by relying on the alleged altered state of the business operation since White's death. Thus, Respondent's brief sees the issue to be the following: "In view of the fact that the business operations of the Employer have been altered since Mr. White's death and has been conducted solely to fulfill existing contracts, as provided in the will, and that the assets will be sold and the corporation dissolved, and there is no possibility of the business of the corporation continuing, does the executor acting as such and as President of the Employer, have the authority to enter into contracts of any kind or nature?" It is, of course, clear that we are not dealing here with White, qua employer, but with Respondent corporation in that capacity. It follows, therefore, that, unless the corporation was dissolved by operation of law upon the death of White, its sole stockholder and owner, a proposition without legal support and not argued here, the corporation and its operating entity remained intact. Indeed, by his appointment as White's executor under the latter's will, Spedden had the power and duty "to continue the operations" of Respondent, albeit, for a limited period not to exceed 1 year. In this connection, nowhere does it appear that Spedden was charged under the will solely to fulfill existing contracts and not to enter into any new contracts, be it with the Union or with someone else. The very authorization in the will "to continue the operations," would seem to imply the contrary, i.e., the authority to do whatever is required for the good of the business, as well as what is required by law, including negotiating with a union, which is, as here, the bargaining representative of Respondent's employees. And, contrary to Respondent, the plain meaning of the direction to the executor, under White's will, "to carry out, complete and fulfill any contracts existing at the time of [his] death," whether read together with the stated power to continue operations, or read separately, refers to contracts already in existence at the time of his death and does not, in law or in reason, preclude the entry into a labor agreement with a collective-bargaining representative of Respondent's employees. Nor can it be contended that the prospects of the liquidation of the corporation assets, including the plant herein and the dissolution of Respondent corporation, serve to justify a refusal to bargain herein. Assuming, arguendo, that sale of the corporate assets, as well as the dissolution of Respondent corporation, was to be the eventual resolution of the instant situation, the Union had a right, in such premises, to bargain about steps that might be taken to minimize the effect upon employees of the sale of the assets and dissolution of Respondent corporation.15 And the fact that the sole stockholder and owner of Respondent was being represented by the executor under his will does not require a different result. shut down, the Union should have been given an opportunity to bargain over the rights of employees whose employment status will be altered by the managerial decision - MARTIN WHITE, JR., INC. 525 Section 10(a) of the Act empowers the Board "to prevent any person from engaging in any unfair labor practice (listed in Section 8) affecting commerce," and Section 2(l) defines a "person" as, including among others, "legal representatives." 16 It follows therefrom that, as legal representative of the estate of Martin J. White, Jr., Spedden could not legally refuse to meet and negotiate with the Union while he was continuing to operate the business, as he was charged to do under the above will. In support of its refusal based on the claimed limited authority of an executor under a will, Respondent cites several cases decided by State courts and a Board case; i.e., Eastern Iron & Metal Company, 106 NLRB 1261. However, apart from other considerations, it is clear that cases decided by the State courts are not controlling herein, as it is the Federal law that must control. And, as to the above-cited Board cases, that was a representation proceeding in which the employer was an individual doing business under the trade name of Eastern Iron & Metal Company. The issue there was whether the executors of the employer who were then operating the business under his will were the employers of the employees involved. The Board, relying on the fact that the operations and the employees had remained the same during the transitional period caused by the employer's death and on the further fact that there did not appear to be any prospect of imminent dissolution of the operation, found the executors to be the employer of the employees and that there was no obstacle to an election. Respondent reasons therefrom, in effect, that since the Board arguably would have found an obstacle to an election had dissolution been imminent, a holding is warranted here, where assertedly dissolution is imminent, that no bargaining obligation exists any longer. There is clearly a vast difference between a situation where the predicate for a bargaining relationship is sought to be established and where, as here, a bargaining obligation has already been established under Board process and where the proceeding seeks to enforce that obligation during the certification year and thereafter. Thus, so long as Martin White, Jr., Respondent herein, was maintaining its corporate existence and the business enterprise, as was the case here, the Union continued to be the representative of its employees, and the operator of the enterprise had the obligation to recognize and bargain with the Union as such representative. And, if dissolution were to occur so that the employing entity would continue substantially unchanged, the purchaser would also be considered a successor and would have the same bargaining obligation as its predecessor. For all these reasons, I find the abovected Board case also fails to support Respondent's position. In all these circumstances, Respondent failed to comply in material respects with the settlement agreement and the Regional Director was justified in setting it aside." C. Conclusion as to the Allegation of Refusal to Bargain Having found that the settlement agreement was properly set aside, there remains for consideration whether, as alleged in the complaint , Respondent has since January 6, 1965, satisfied its obligation to bargain collectively with the Union herein. 1. The appropriate unit The complaint alleges, Respondent admits, and I find that the following unit in which the Union was certified in Case 5-RC-4963 is appropriate: All employees employed by Respondent at its 4546 Annapolis Road (Baltimore, Maryland) location, excluding all office clerical employees , guards, and supervisors as defined in the Act. 2. The majority status of the Union The Respondent admits, and I also find, that, at all material times, the Union has represented a majority of the employees in the aforesaid appropriate unit. 3. The presettlement bargaining The record establishes and I find that, in at least two respects, Respondent did not fulfill its bargaining obligation under the Act during this period. More specifically; (1) although claiming inability to pay increased wages which the Union was then demanding, Respondent's attempt to substantiate its claim was less than forthright; and (2) although promising to submit counterproposals as to clauses in the Union's proposed contract with which it had differences or disagreed, it failed to do so. 18 As to Respondent's claimed inability to pay, although Respondent produced a financial statement at the fourth negotiating session in response to the Union's demand for such a statement for the calendar year 1964 brought up to date and allowed the union representative to look at it, it refused the Union's request for a copy thereof, giving as its reason that this was an only copy. And when the Union requested permission to make a copy thereof, that was also refused. The Union made the further request that Respondent have a copy made and then forward it to the Union. However, when Respondent did present a financial statement to the Union at the next meeting of April 16, 1965, it submitted a different statement covering a 6- month period to February 28, 1965, with the statement that the Union could submit in writing whatever questions it had concerning the statement and Respondent would get answers for the Union from its accountant. Whereupon, the Union, by letter dated April 19 to Respondent, questioned the adequacy of the statement furnished, '"See N.L R.B. v Kiddie Kover Mfg. Co , 105 F.2d 179, 183 (C.A 6); and Harbor Chevrolet Company, 93 NLRB 1326; cf. N L.R.B. v. Bachelder, Receiver for Hoosier Veneer Co., 120 F.2d 574 (C.A. 7); cert. denied 314 U S. 647 , and Paul Stevens, Reciver of Carolina Scenic Stages, a corporation, 109 NLRB 86. " Spedden testified that part of his hesitancy in clarifying his position as executor was due to the stoke tactics of the Union while White was alive. Such tactics allegedly involved , inter alia, destruction of company property, including its trucks ; threats to picket at a construction project of one of its customers if Re- spondent's employees made deliveries at the project; and picketing at this customer 's premises. In this connection, Spedden testified "how far can I go with knowledge of things going on like that." It is clear, however, that this added reason, even assuming it to be factually so, which I do not and need not decide here, would not detract from the propriety of the Regional Director's action of setting aside the settlement agreement or the obligation to bargain, as found hereinafter. is I find it unnecessary to decide whether, in the circumstances , Respondent also violated the Act, as alleged, by failing to meet and negotiate with the Union at reasonable times and by failing to appoint a representative with full authority to bargain and enter into a final and binding contract with the Union 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pointed out that it was not the statement shown to the Union at the meeting on February 22, and reiterated the request for that statement. Thereafter, at the meeting on May 6, Respondent repeated its posiition that any questions the Union had about the statement furnished should be forwarded to Respondent and it would, in turn, get the answers from its accountant. At this point, the Union indicated that it had done just that by letter of April 19 and that the requested statement shown to a representative of the Union on February 22 had not come forth. The Union asked for that statement again, or, in the alternative, that the Union's accountant be allowed to audit Respondent's books for 1964 and to date. The above request of the Union was repeated in the Union's letter, dated May 28, to Respondent, in evidence as General Counsels's Exhibit 15. However, there were no further developments prior to the settlement agreement herein. It is noteworthy, too, that when Respondent did furnish certain financial statements to the Union pursuant to a provision of the settlement agreement, it did not produce the statement shown to the Union on February 22. Under all these facts and circumstances, I am persuaded that Respondent did not make a forthright attempt to prove its statement of inability to pay, nor did it permit independent verification of such inability to pay and that it thereby refused to bargain in good faith, since on or about February 22.19 With respect to the failure to furnish counterproposals, as promised, the record shows, and I find, that at the third negotiating session on February 12, from which White was absent, Spedden undertook to discuss with White what had transpired at the meeting and then formulate written counterproposals to the Union's demands and forward such counterproposals to the Union by February 15 or 16. Although prodded by telephone calls from the Union thereafter and during the course of each subsequent meeting, no such written counterproposals were proffered by Respondent. While it is true that Respondent did indicate its position with respect to many of the Union's proposals at the various meetings held, this position was never made concrete. Thus, the Union pointed out, at the negotiating session on April 16, that it still had no counterproposals as promised at the February 12 meeting and that this prevented "the work[ing] out of any clauses." And while Spedden promised at the sixth negotiating session on May 6 that he would forward a memo to the Union within about 10 days which "would be on the articles in the contract, one by one, giving the Company's position on each item where there was no agreement, with proposed language on each item where there was no agreement," Respondent had not, as of the time of the settlement agreement herein, furnished such a statement. Under all these circumstances, I am persuaded that the failure to furnish written counterproposals as promised on February 12, 1965, and thereafter, was further proof that Respondent was not bargaining in good faith.20 4. The period following the settlement agreement As already found, no actual negotiations took place during this period for reasons urged by Respondent which I have found to be lacking in merit. It follows, therefore, that Respondent's failure to enter into negotiations with the Union after the death of White on September 25, 1965, for the purpose of consummating a collective-bargaining agreement, contravened its statutory obligations and constituted a violation of Section 8(a)(5) of the Act. In sum, I find that, by its conduct before and after the time of the settlement agreement, whether viewed separately or in combination, Respondent violated Section 8(a)(5) of the Act. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining ,within the meaning of Section 9(b) of the Act: All employees employed by Respondent at its 4546 Annapolis Road (Baltimore, Maryland) location, excluding all office clerical employees, guards, and supervisors as defined in the Act. 4. By refusing on and since February 22, 1965, to bargain collectively with the Union as the exclusive bargaining representative of the employees in the aforesaid bargaining unit, 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. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that Respondent cease and desist therefrom and from interfering in any like or related manner with the efforts of the Union to bargain collectively with Respondent. However, with respect to whether an affirmative order should issue, the following appears: On July 6, 1966, counsel for Respondent filed a motion of employer to dismiss proceedings. In it, Respondent alleged (1) that Respondent "ceased to be an employing unit , its last truckdriver having been discharged, that on June 30, 1966, the Employer fulfilled its last contract and ceased all operations and dealing in matters of commerce of whatever nature ... and on said date all business activities of Respondent were terminated forever . . ."; and (2) as provided in the will of Martin J. White, Jr., sole stockholder of Respondent, the assets of Respondent corporation will be liquidated in the manner prescribed and the corporation will be "dissolved as soon as possible, therefore, the corporation will not be sold as a unit, or a going concern, nor will its capital stock be sold and it will never again become an employing unit." Thereafter, on November 9, 1966, the General Counsel filed herein a cross-motion of General Counsel for issuance of the Trial Examiner' s Decision . In it, the "See N.L.R B v Truitt MJg Co , 351 U.S. 149 inter alia, an employer's failure to submit a counterproposal to a 20 Mitchell Concrete Products Co , Inc , 137 NLRB 504, see also union's request for a dues checkoff, although the employer had Texas Coca-Cola Bottling Company, 146 NLRB 420 (involving , promised to do so) MARTIN WHITE, JR., INC. General Counsel asserts that it appears that Respondent has, as stated in its aforesaid motion , "not had any employees since June 30, 1966," but it has not, as stated, been dissolved in the interim, and further that "Respondent has not been dissolved in accordance with the terms of the Will and its assets have not been liquidated and distributed." The General Counsel, therefore, requested that Respondent's motion to dismiss be denied and that I issue a decision herein , without further delay, finding the violations as alleged and ordering Respondent to bargain with the Union, upon request, if and when Respondent resumes its business. In view of the fact that Respondent, for nondiscriminatory reasons, has seemingly gone out of business entirely with little likelihood that it will ever resume operations, I agree with the apparent position of the General Counsel that there is insufficient justification for the issuance of an affirmative order to bargain now. However, since Respondent, so far as the record shows, still maintains its corporate existence and has not yet been dissolved, and since one cannot say to a certainty that Respondent will not resume operations in the vicinity of Baltimore, the site of Respondent's plant herein, it would seem appropriate to remedy the violation herein by requiring Respondent to bargain with the Union if and when it resumes operations in the vicinity of Baltimore, Maryland,'' and I so recommend." RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, I recommend that Respondent, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Construction Building Material Drivers, Warehousemen and Helpers Union No. 311, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the following appropriate unit: All employees at Respondent's 4546 Annapolis Road (Baltimore, Maryland) location, excluding all office clerical employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining , or coercing its employees in their right to bargain collectively through representatives of their own choosing and to engage in other concerted activities for mutual aid or protection. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) If Respondent resumes operations in the Baltimore, Maryland, area, bargain collectively, upon request, with the above-named Union as the exclusive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Send to each of the employees a copy of the attached notice marked "Appendix."'"' Copies of said notice, to be furnished by the Regional Director for Region 5, after being duly signed by Respondent, shall be sent by mail to employees employed by Respondent prior to its discontinuance of operations at their last known address. 527 (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 24 "See Custom Quilting Corporation, 134 NLRB 51; cf. also N L R B. v Weirton Steel Company, 135 F.2d 494, 498, 499 (C A 3). r Respondent's motion to dismiss is accordingly denied 2' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trail 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 Decesion and Order." 29 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 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 Relations Act, as amended, we hereby notify our employees that: WE WILL, in the event we resume operations in the Baltimore, Maryland, area, bargain collectively, upon request, with Construction Building Material Drivers, Warehousemen and Helpers Union No. 311, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, and hours of employment and, if an understanding is reached, embody such an understanding in a signed agreement. The bargaining unit is: All employees of our 4546 Annapolis Road (Baltimore, Maryland) location, excluding all office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT, in any like or related manner, interfere with , restrain , or coerce our employees in their right to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for mutual aid or protection. MARTIN WHITE, JR., 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-8460, Extension 2100.