A W Cullum & Co., Inc.

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A W Cullum & Company , Inc and General Drivers, Warehousemen and Helpers Local 745, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America Case 16-CA-3551 April 20, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On December 31, 1969, Trial Examiner Josephine H Klein issued her Decision in the above-entitled pro- ceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations There- after, the Respondent and the Charging Party filed excep- tions to the Trial Examiner's Decision with supporting briefs, and Respondent filed a brief replying to the Charging Party's exceptions 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 con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner 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, the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations2 of the Trial Examiner TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H KLEIN, Trial Examiner Upon a charge filed against A W Cullum & Company, Inc (Respond- ent), by Dallas General Drivers, Warehousemen and Helpers Local 745, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), on February 25, 1969, a complaint was issued by the Regional Director on April 24, 1969 Pursuant to due notice, a hearing was conducted on the complaint in Dallas, Texas, on June 24, 25, and 26, 1969 All parties were represented by counsel and were given opportunity to present evidence and to examine and cross-examine witnesses The parties waived oral argument and thereafter all three parties filed briefs Upon the entire record, observation of the witnesses, and consideration of the briefs, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTIONAL FINDINGS A Respondent, a Texas corporation with its principal place of business in Dallas, Texas, is engaged in the wholesale grocery business During the past 12 months, a representative period, Respondent, in the course of its business operations, purchased, transferred, and delivered to its warehouse in Dallas, Texas, goods, wares, and merchandise valued in excess of $50,000 which were shipped and transported directly from points outside Texas Respondent is now, and was at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act ' B The Union is a labor organization within the mean- ing of Section 2(5) of the Act II THE UNFAIR LABOR PRACTICES ORDER Pursuant to Section 10(c) of the National Labor Rela- tions 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, A W Cullum & Company, Inc , Dallas, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order ' In the absence of exceptions thereto we adopt pro forma the Trial Examiners conclusion that Respondents proposed protection of rights warehouse security and productivity clauses were all mandatory subjects of collective bargaining Y In affirming the Trial Examiner s recommendation that Respondent not be required to execute a checkoff provision we rely solely upon H K Porter Company Inc v N L R B 397 U S 99 A The Issues The complaint alleges an overall continuing refusal by Respondent to bargain with the Union in good faith In subparagraphs, the complaint sets forth specific areas in which the refusal to bargain was reflected 2 In this Decision the evidence will be discussed in accordance with the specific suballegations of the complaint Howev- er, in keeping with the nature of the complaint and the manner in which the case was presented, the ultimate determination will be made on the basis of the totality of Respondent's conduct (Patent Trader, Inc , 167 ' National Labor Relations Act as amended (61 Stat 136 73 Stat 519 29 U S C sec 151 et seq ) 4 The particular form of the complaint was apparently dictated by the course of the prior proceeding In Case 16-CA-3307 the original complaint was quite general Respondent s demand for a bill of particulars was granted in part and the complaint was then amended to specify particular forms which Respondent s refusal to bargain allegedly took 182 NLRB No 7 a W CULLUM & CO , INC NLRB 842 (TXD), enfd in pertinent part 415 F 2d 190 (C A 2)) In addition to an overall refusal to bargain, the com- plaint alleges, as an independent unfair labor practice under Section 8(a) (5), that Respondent unilaterally grant- ed merit wage increases to a substantial number of unit employees in January 1969 B Background The Union was certified as the collective-bargaining representative of Respondent's warehouse employees3 on December 11, 1967 4 No agreement on a contract having been reached between Respondent and the Union, a strike commenced at the warehouse on April 22, 1968, and the Union filed an unfair labor practice charge alleging an unlawful refusal by Respondent to bargain in good faith (16-CA-3307) A second charge, alleging unlawful refusal to reinstate strikers , was filed (and amended) in August 1968 (16-CA-3399) A hearing on a consolidated complaint was held before Trial Examiner Richard Taplitz on October 22 and 23, 1968 On the latter date the Company and the Union reached an agreement settling the strike Simultaneously , an infor- mal settlement of the unfair labor practice proceeding was reached by the parties and approved by Trial Exam- iner Richard Taplitz and then by the Regional Director on October 28, 1968 5 So far as here relevant, the prior settlement agreement, which was introduced into evidence in the present case ,', provided that Respondent would bargain in good faith with the Union and would post the customary notice for 60 days It further recited "It is agreed that upon compliance the General Counsel will file a motion to dismiss with the Trial Examiner °' No such motion has been filed, with the result that the prior case has never been closed Respondent moved to dismiss the present proceeding on the basis, in part at least, of the earlier settlement Counsel said We also move to dismiss the complaint for the reason that this Respondent did fully comply with its obligation to bargain with the Charging Union as a result of a settlement agreement that was entered into last fall for and beyond the period covered by the settlement agreement , as a matter of fact, several months covered by the settlement agreement and we say therefore that the certification here as extended by the settlement agreement had long since expired and we have no further obligation The unit is not in dispute The Union had also been certified in 1964 However bargaining at that time did not result in a contract i By order dated November 14 1969 I notified the parties that official notice was being taken of the record in the prior consolidated proceeding " Respondent objected to the introduction of the settlement agreement into evidence because in counsel s words it contained the following paragraph Nothing in this agreement shall be considered as an admission of the committing of any unfair labor practice nor may it be utilized as evidence in an) unfair labor practice proceeding ' (Emphasis sup plied ) The italicized portion was misread the actual language being nor may it be used as evidence of any unfair labor practice 17 toward the charging party in this matter and the complaint should therefore be dismissed I certainly recognize that after the agreement to an informal settlement , as we did, we had a duty to bargain for a reasonable period of time, not necessarily 60 days, certainly not-I simply said that we did not only bargain for-we bargained long beyond that period of time and for a reasonable period of time the compliance with the terms of the settle- ment agreement was ruled upon by the Regional Director some months ago I did not urge upon this Examiner the merits of compliance or non-compliance because that was a fact accomplished The Board ruled we had com- plied with the settlement agreement In response to a posthearing order, Respondent sub- mitted photostatic copies of letters by the Regional Director to union counsel dated December 18, 1968, and May 12, 1969 The first of these letters concludes After careful consideration of the position of the parties , I do not feel that the Settlement Agreement has had full opportunity to succeed However, I do hope that negotiations will resume in the very near future As you know, I am most anxious to see the parties negotiate in good faith with the specific objective of solving their labor relations problems Accordingly, I am denying your request to set the Settlement Agreement aside at this time, but I reserve a keen interest in future conduct which may have a tendency to violate the terms of the Settlement Agreement The second letter reads It appears that a remedial order in Case No 16-CA-3551 would adequately remedy all outstand- ing unfair labor practices Accordingly, I deny your request to move to reopen the record in Cases No 16-CA-3307 and 16-CA-3399 It thus clearly appears that there has been no determi- nation that Respondent has complied with the prior settlement agreement for any period of time I according- ly reaffirm my denial of Respondent 's motion to dismiss the complaint In addition , I hold that Respondent's conduct may be considered and judged as of October 29, 1968 , the day after the Regional Director approved the settlement agreement , and continuing thereafter, even though such conduct, if violative of the Act, may also be violative of the settlement agreement, which has not been set aside 7 Compare N L R B v Harris- ' Manifestly no weight can be given to the evidentiary record in the prior case since the hearing was not completed and I thus made no findings or conclusions In the present case the General Counsel disavowed any intention or desire to go behind the settlement and 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woodson Co , 179 F 2d 720, 723 (C A 4) C The Evidence The cast of characters Respondent 's representatives Throughout the negotia- tions M D Sampels, Esquire , was Respondent ' s chief negotiator and spokesman He attended all the negotiat- ing sessions which were held at the offices of his law firm Sampels also served as Respondent ' s principal attorney at the hearing He did not take the stand as a witness Houston E Holmes, Jr , Esquire, who appeared as associate counsel with Sampels in this pro- ceeding , had apparently attended all or most of the negotiating sessions He did not testify at the hearing Charles G Cullum , Respondent 's president, was Respondent's only witness at the hearing He attended all except the first of the negotiating sessions While Cullum actively participated in the negotiations, the evidence establishes that his role was secondary to Sampels Mr Harriston , Respondent' s personnel director , attended at least the one meeting that Cullum missed The Union's representatives Fred 0 Weldon, Jr , Esquire , was the Union's chief negotiator, spokesman, and principal witness He had attended all but one of the negotiating sessions and drafted the Union's contract proposals He did not file an appearance as counsel for the Union until toward the end of the hearing, after he had completed his testimony Shortly before the prior hearing , Weldon had replaced David R Richards , Esquire , who had previously served as the Union 's chief negotiator Also present at the bargaining sessions here involved was Union President Charles Haddock , who testified on behalf of the Union , primarily concerning the one negotiating meeting that Weldon had not attended Other union representatives involved in negotiations with Respondent at various times were Assistant Business Representative C M Roseborough, who testified briefly, and Business Agent Charles Rogers 1 Overall refusal to bargain a Dilatory tactics As reflecting a pattern of refusal to bargain in good faith, the complaint alleges that Respondent "refused to meet with the Union at reasonable times and places for the purpose of engaging in collective bargaining " The following is a chronological summary of the course of the negotiations October 23, 1968 At the settlement meeting, the Union requests a negotiating session and Had- dock, overruling Weldon, accedes to Sampels' request for 2 weeks' grace no evidence was presented which might establish presettlement unfair labor practices November 1, 1968 Richards writes Sampels sug- gesting a meeting during the week of November 1 and requesting specified up-to-date payroll data November 7, 1968 Roseborough writes Cullum requesting a bargaining meeting November 12, 1968 Cullum writes Roseborough that Cullum is forwarding Roseborough's letter to Sampels, who is out of town November 26, 1968 Sampels writes Richards that Sampels tried unsuccessfully to reach Richards by phone (at an unspecified date), that during the week of November 11 Sampels "was out of town and otherwise unavailable" for negotiating, that Richards was out of town the week of November 18, that Sampels has "requested an up-to-date pay- roll but [has] not received same " Sampels suggests that Richards telephone "so we can discuss available dates " November 28 or 29 In a telephone conversation, Weldon requests a bargaining session on December 4, 7, 9, or 11 Sampels says he will check with Cullum and call Weldon back In answer to Sampels' question, Weldon says the Union will offer some concessions December 3, 1968 Sampels writes Weldon that Cullum is serving as acting mayor until early the next week, after which he will be in California and, upon his return, will call Sampels "in order that we may be in contact with regard to an appropriate date for negotiations " December 11, 1968 In answer to a letter of November 4, 1968, Weldon writes to Sulton Boyd, Regional Compliance Officer of the Board, with a copy of the letter to Sampels Weldon's letter details the Union's unsuccessful efforts to secure payroll data and a bargaining session and requests that the Regional Director withdraw his approval of the settlement agreement for noncompliance December 17, 1968 Sampels sends Weldon a letter (with copy to Boyd) in response to Weldon's letter of December 11 to Boyd Sampels says he has still been unable to "discuss dates with Mr Cullum because of his absence from the city" and that payroll data will be presented "at our negotiating session "e December 26, 1968 Weldon writes Sampels requesting a bargaining meeting on December 30 December 30, 1968 Sampels' secretary writes Weldon that Sampels "has been out of the city" and he will be given Weldon's letter upon his return (date of expected return not stated) January 3, 1969 Weldon writes Sampels concern- ing the Union's "continuing request" for payroll data and "for a meeting with [Sampels] or some representative of" Respondent for negotiation 8 On December 18 1968 the Regional Director denied Weldon request that the settlement beset aside See discussion above A. W. CULLUM & CO., INC. January 3, 1969: Sampels writes stating they can meet at Sampels' office at 2:30 p.m. on January 89 January 6, 1969: Cullum writes Haddock that an employee evaluation is in progress for merit wage increases. January 8, 1969: First negotiating session begins around 2:45 p.m. Union representatives reject Sam- pels' request that they postpone the meeting until January 28. At 4 p.m. Sampels leaves to meet a prior unrelated commitment, for which he says he is already late. January 10, 1969: Weldon addresses to Sampels a letter which, inter alia, objects to Respondent's course of bargaining and requests that Sampels or some representative "with authority to bind the Company" meet with the Union representatives once a week for at least 4 hours beginning with the week of January 13. Weldon offers to meet weekends and evenings, if necessary. Weldon also repeats the request for payroll data Richards origi- nally requested by letter of November 1, 1968, and adds a request for detailed information concern- ing proposed merit wage increases. Union requests further notice if Company is in a hurry about the merit increases. January 12, 1969: Merit wage increases are made effective for 24 unit employees. Week of January 13, 1969: Sampels and Cullum out of town. January 30, 196919: Negotiating session is held morning and afternoon, for a total of 4 or 5 hours. Union again requests data relevant to the "pro- posed" merit wage increase and is informed that the increases have already been put into effect. Respondent presents its current" contract proposal and part of the payroll data requested on November 1, 1968. Union agrees to present its contract propos- al before the next meeting. February 4, 1969: Weldon writes Sampels, pur- porting to review the January 30 meeting; again requesting wage and payroll data; objecting to the merit wage increases; and stating that the Union's revised contract proposal, covering matters dis- cussed in the letter "and other modifications" should reach Sampels before the meeting scheduled for February 14. February 14, 1969: Negotiating meeting starts at 10 a.m. Although originally scheduled for all day, the meeting is terminated at noontime because of other commitments on the part of Sampels and Cullum. Respondent rejects Union's renewed request that the Company designate an alternative 9 Weldon's and Sampels' letters of January 3 apparently crossed in the mails 10 This meeting, originally scheduled for January 28, was postponed because of Sampels' unavailability. 11 Both parties had previously made contract proposals which were pending when the strike occurred and negotiations were suspended in April 1968 19 bargaining representative. Respondent provides material concerning the merit wage increases and additional payroll data previously requested. Union does not present a current written proposal. February 26, 1969 : Negotiating session is held.12 Haddock , serving as Union 's spokesman in Wel- don's absence , presents Union 's current contract proposal. Sampels requests adjournment so he can study the Union's proposal , but Haddock states that 95 percent of it is taken from Respondent's. Several disputed items and the Union 's unfair labor practice charge of February 25 are discussed. Respondent objects to bargaining with the pending charge as "a gun at [its] head ." Haddock indicates there would be no apparent reason for proceeding before the Board if the parties execute a contract. March 6 , 1969: Negotiating session is held. Union presents its wage proposal , which was left open in its prior proposal because the Union had just learned that merit increases had actually been grant- ed to about one -third of the unit employees . Several matters are discussed without any substantial agree- ment on disputed matters. Company representatives resist Union ' s attempt to discuss wages and termi- nate the meeting by walking out. March 21 , 1969: Bargaining session is held, lasting about an hour or less. After reviewing , item by item , the major points of disagreement , and ascer- taining that Respondent ' s position has not changed on any of them , Weldon states that an impasse had been reached as a result of Respondent 's refusal to bargain . Sampels says that the Union has declared an impasse and the Company 's representatives are willing to continue negotiations . Union representa- tives then walk out. Weldon testified , without contradiction , that when he complained on several occasions concerning Respond- ent's failure to provide the payroll data it had promised, Sampels took the position that the Union could file a charge with the Board and the parties could then litigate . Weldon also testified without contradiction that on several occasions Sampels had threatened to throw the union representatives out of his office . Because of that , Weldon requested that the negotiations on Febru- ary 14 be held somewhere other than in Sampels ' office, but his request was refused. Cullum had been a member of the Dallas City Council since May 1, 1965. During the period here involved he also served as Acting Mayor of Dallas and on various committees and made numerous speeches . His civic responsibilities consumed a considerable amount of time. He also was absent from the city on business.13 " The length of this meeting does not appear However, Weldon's testimony was uncontradicted that only one meeting (that held on January 30, 1969) was held in both the forenoon and the afternoon 1S Cullum testified "In total, then, during the months of November and December I' had approximately 30 days of business in which I was obligated to the City and/or the County to perform these duties ]During the month of December I also made one emergency trip to California, which was of a business nature " He also made a trip to Florida, but the record does not show the purpose thereof, 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no reason to doubt the veracity of the explana- tions given for Sampels' unavailability for negotiations on various occasions However, because Sampels him- self did not testify, and thus was not subject to either direct or cross-examination concerning his activities, no specific finding is made in this connection Cf Braden- ton Coca Cola Bottling Co 162 NLRB 38, 45, enfd 402 F 2d 84 (C A 5) b Specific contract terms When negotiations broke off and the stnke started in April 1968 there were three major issues in active dispute between the Union and Respondent seniority, union dues checkoff, and employees' right to honor picket lines In addition, the duration of the contract and wage rates had not been extensively discussed However, Weldon credibly testified that no great difficul- ty was anticipated in reaching agreement on wage rates Upon resumption of negotiations following the settle- ment , the same issues appeared as stumbling blocks, together with additional requests by Respondent for contractual provisions concerning employee productivity and shrinkage or pilferage of goods As detailed below, the complaint specifies these items as matters as individ- ual items on which Respondent failed to meet its statuto ry obligation of good-faith bargaining (1) Seniority In its original contract proposal , made before the strike, the Union had included a detailed provision which would make seniority controlling in a broad range of employee rights and privileges Respondent had refused to recognize seniority as the basis for any employee rights It maintained that it was opposed in principle to recognizing seniority rights, believing that the Compa- ny should have complete discretion to encourage superior performance by individual employees regardless of their relative seniority Although the Union had later modified its seniority demand, restricting the scope of its applicability, the Company had yielded only to the extent of agreeing to list "length of service" as one of eight factors consid- ered in the evaluation of employees for merit wage increases and promotions The Company's final prestrike contract proposal provided Article 2 Promotion and Advancement 3 In evaluating employees for merit wage increases or for promotions to higher-paying jobs, the follow- ing factors will be taken into consideration Knowl- edge, length of service, ability, skill, character, effort , teamwork and experience The Company shall be the sole judge in evaluating its employees and its decision shall be final and conclusive and not subject to grievance and arbitration [Emphasis supplied I At the first poststrike bargaining session , held on January 8, 1969 , Respondent said that its position had not changed and that it would never recognize seniority as controlling any personnel matters Sampels stated emphatically that the Company refused to have the word "seniority" in a contract Weldon then sought to discuss the possibility of applying a seniority criterion to individual components of the employment relation- ship, but Sampels said "that he wouldn't talk about it in pieces, he had to have a whole clause before he could consider it " According to Weldon, at the January 8, 1969, meeting Sampels finally agreed to rank employees by length of service," but would not agree to ascribe any effect to such ranking At the second poststrike negotiating session, on Janu- ary 30, 1969, Respondent presented a revised contract proposal Article 2, on promotion and advancement, was the same as that in its prestrike proposal, except that in Section 3, quoted above, the word "training" was substituted for the phrase "length of service" in the list of matters to be considered by the Company in determining merit wage increases and promotions Cullum was unable to explain this change of language, indicated that he had not been aware of it, and finally said it must have been "an oversight " On its face, the change could not have been inadvertent but must have resulted from affirmative editing or revision of the prior proposal Although there is no express evidence to this effect, Sampels undoubtedly drafted Respondent's contract proposals Since Sampels did not testify, I infer and find that he intentionally substituted "training" for "length of service" in the list of factors which Respondent proposed should be controlling as to merit wage increases and promotions 15 At subsequent meetings the question of seniority was raised and Cullum consistently maintained that the con- cept was contrary to the Company's long-established policies It was pointed out that Pantry Foods, a Califor- nia affiliate of Respondent, was party to a collective- bargaining agreement containing a broad seniority provi- sion 11 According to Cullum, Pantry Foods was a member of bargaining association and the seniority provision was in effect when Pantry Foods was acquired by Cul- lum 17 Cullum testified that he had never read the Pantry Foods contract (2) Checkoff The complaint alleges that Respondent refused to bargain in good faith about the checkoff of union dues The Union's demand for a checkoff was, along with seniority, one of the major matters of dispute between the parties before the strike /8 '" Respondent eventually gave the Union a list of current unit employ ees with their dates of hire " On February 14 1969 in response to the Union s request for information concerning the Company s existing merit wage increase program the Company listed the relevant factors as training ability skill character effort teamwork experience and length of service '" Seniority shall be recognized on a company wide basis within the jurisdictional area of the Union covering all employees from the date of employment and shall prevail in reference to vacations transfers layoffs rehiring and promotions as set forth below " The term of the unsigned agreement in evidence is of November 6 1967 through November 1 1970 Cullum acquired Pantry Foods in 1966 i" The complaint in the prior proceeding had alleged a failure to bargain in good faith over wages seniority and checkoff A. W. CULLUM & CO., INC. After the strike, the Union renewed its demand for a contractual provision for checkoff of union dues. When pressed for the reasons for its opposition to a checkoff, on January 8, 1969, Respondent's representa- tives said, in effect, that: (1) the collection of dues is the Union's job; (2) checkoff forces employees to join and remain members of the Union; (3) checkoff creates a conflict of interest between the employees and the Company; and (4) checkoff would require a rearrangement of the Company's bookkeeping methods. Apparently to meet objection (2),• the Union offered to reduce the period of revocability of checkoff authori- zations from I year to 30 days. Respondent still refused to grant a checkoff provision. The Union then suggested that, instead of a checkoff, the Company might agree to pay the employees in cash, rather than by check, one day a month and allow the Union to set up a table at the plant for dues collection that day. The Company replied that the employees' wives would undoubtedly object to any payment of wages in cash. The Union thereupon dropped its request for cash payment, but asked for the right to set up a dues collection desk at the warehouse on one payday per month. The Company rejected those suggestions. Major discussion of the checkoff issue apparently revolved around the Company's complaint as to the expense involved. The Company conceded that it already made deductions from employees' pay for United Givers Fund, insurance,, and the purchase of tools, in addition to social security and income tax. Although Cullum first said that the Company did not make deductions from wages for the employees' credit union, he later said that he had been in error and that 'the Company did in fact honor employees' requests' for such deduc- tions. Respondent requested that the Union undertake to assume at least a substantial portion of the costs to the Company of the checkoff. Company representatives said that they were not concerned primarily with the direct costs of checking off union dues as such but rather with the overall costs of additional deductions which would follow upon the precedent established there- by. Both in the course of the contract negotiations and in testifying at the hearing Cullum maintained that if the Company were to check off union dues it would be met with other similar requests by nonunit employees, such as requests for deductions and transmittal of church, club, or lodge dues and payments to finance companies. The Union said that, upon securing adequate information as to the direct costs of checking off union dues, it would consider defraying these expenses to some extent, possibly in the. neighborhood of 3 cents to 5 cents per, employee per month. The Company never supplied any relevant cost data. Weldon testified that he was never able to understand the Company's position that a checkoff of union dues would create a "conflict of interest" between the Compa- ny and the employees. This contention was not repeated 21 or explained as such by Cullum in testifying at the hearing.'s (3) Shrinkage and productivity clauses In its January 30, 1969, contract proposal Respondent included a provision entitled "Warehouse Security," providing that "the Union shall assist the Company in taking steps to correct . . . shrinkage" if the Compa- ny's shrinkage rate exceeded the national average and "the Union shall be willing to share the responsibility for said shrinkage" if the Company's rate did not come down to the national average within 6 months. The Union rejected this proposal, offering a strong provision for summary discharge or other discipline of employees for theft but maintaining that the Union could not, in effect, become an insurer. Respondent thereupon submitted a revised proposal, reading: When shrinkage in the warehouse rises above the national average for grocery warehouses as reported by the national trade groups, then the Union shall assist the Company in taking steps to correct the shrinkage, including, but not limited to: (1) Utilization of private investigative organiza- tions to determine responsibility for shrinkage; (2) In the event the steps taken pursuant to (1) above are not successful for determination of the responsible individual or individuals for such shrinkage, polygraph examinations conducted under the supervision of the Company and the Union would follow; - (3) In the event that the steps taken pursuant to (1) and (2) above reveal that a member or mem- bers of the Union are responsible therefor, such member or members shall be discharged by the Company, and its action shall be final and not subject to grievance and arbitration pursuant to this agreement; (4) All costs incurred pursuant to action taken as outlined in (1) and' (2) above will be shared equally by the Company and the Union, and the control of shrinkage shall be a joint responsibility of both the Company and the Union. The Union found this alternative even more offensive than the original. The Union pointed out that the Compa- ny's original prestrike contract proposal had provided for lie detector tests but the Company had finally agreed to eliminate that provision because of the Union's opposi- tion as a matter of principle, supported by the refusal of courts in several jurisdictions to admit the results of such tests as evidence. ` B According to Weldon, Cullum argued that union dues checkoff was of benefit only to the Union and not to the employees. One may speculate that such a contention might underlie the "conflict- of-interest " position , with the Company apparently allying itself with the Union as against the employees Weldon maintained the strength of the Union and the employee solidarity arising from the checkoff were of benefit to the employees 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It appears that some time previously the Company had experienced considerable pilferage and several employees had been- terminated after being required to take'lie detector tests. Cullum maintained that pilfer- age increased during union organizing campaigns. He indicated his opinion that employees regarded a union campaign as a protective shield against discipline for misconduct. Considerable evidence was presented concerning a "Productivity" clause included in Respondent's contract proposal of January 30, although the complaint does not allege this as a specific example or element in Respondent's refusal-to-bargain pattern. Since the issue was fully litigated and Respondent has discussed it in its brief, it will be considered here. Cullum testified that, although the Company's equip- ment andfacilities were modern and efficient, its employ- ees' productivity rate was consistently lower than the national and regional averages, as reported by trade associations. Therefore, in its post strike' contract propos- al, Respondent had inserted a provision which would call on the Union to "share the responsibility for" bringing employee productivity up to the national level. The Union said that it could not assume any such financial responsibility. As a possible solution, the Union proposed an incentive pay'plan under which employees would receive additional cooperation for production above specified amounts. The Company rejected this proposed solution on the grounds that: (1) the problem was not at the top of the productive range but rather arose at the average rate; well below the incentive levels; and (2) "incentives" would be adequately provid- ed by the Company's proposal for merit wage increases. No agreement was reached as to either of the shrinkage or productivity clauses.20 The Union contended that the, shrinkage and prod- uctivity problems could be adequately handled under' the suspension and discharge provision, as to which agreement had already been reached. However, Cullum testified that the Company was not interested in discharg- ing or suspending employees, but rather "wanted a way to develop productivity without getting into suspen- sion and discharge and grievance, because this doesn't solve the productivity problem." i (4) "Protection of Rights" The Union's contract proposal contained a provision assuring employees the right to refuse to cross primary picket -lines. Respondent countered with a provision under which employees would be, subject to summary discharge or discipline, without recourse to grievance procedure or arbitration, for any refusal to cross a picket line.21 Then the Company suggested that the 20 In testifying, Weldon accused Cullum of having made racially disparaging remarks about Respondent's employees in connection with the shrinkage and productivity, problems Cullum denied having made the statements attributed to him I 'deem it unnecessary to resolve this conflict` ' ' 21 In his brief, the General Counsel erroneously says that Respondent introduced its proposal "for the first time" on January 30, 1969 There subject be eliminated ^ and the agreement left silent on the picket line issue .21 1 The Company maintained that its "Protection of Rights" clause was necessitated by its experience in 1965 when the Butchers Union had apparently joined the Teamsters Union in picketing Respondent, its retail affiliate and customers. In support of its position, Respondent introduced in its evidence two handbills signed and distributed jointly by the Butchers and the Teamsters locals. Respondent adamantly refused to withdraw its demand for its "Protection of Rights" clause. Union President Haddock, on the other hand, maintained that he' would never sign an agreement containing such a provision. He insisted that either the Union's original opposite proposal be included or that no "Protection of Rights" clause whatsoever be adopted. C. Unilateral Wage Increase The complaint alleges, as an independent violation of Section 8(a)(5), that in January 196923 Respondent unilaterally granted wage increases to employees in the bargaining unit. Respondent concedes that 25 employ- ees,24 about one-third of the unit, had been given raises, but maintains that they were merit increases following a long-established pattern and thus were permissible. On January 6, 1969, Cullum wrote to the Union advis- ing that there was in, process an evaluation of employees for the purpose of granting merit wage increases in "continuation of long-established company policy." At the first negotiating session, held in January 8, 1969, the union representatives requested documentary mate- rial to enable the Union to appraise the Company's claim of a long-established pattern. The Union spokes- men said that, until they received such data, they would be unable to determine whether they would object to''-°" the increases. The Union asked that it be further advised if the Company believed the increases became urgent. The Company agreed to provide the requested informa- tion, along with the other payroll data which union counsel Richards had requested on November 1, 1968. At the next meeting, on January 30, 1969, when the Union asked for the promised wage and payroll data, it was informed that merit wage increases had already been granted to 25 unit employees. According to Cullum, Respondent's established policy is to conduct employee evaluations on a regular quarterly basis .2.1 is no article 25, in Respondent's last prestrike contract proposal as introduced into evidence by the General Counsel However, in the record of the prior hearing, Respondent's proposal contains Respondent's "Protection of Rights" provision as article 25, but it has been crossed out in handwriting 22 Agreement had previously been reached on a "Union Liability" article, containing a no-strike no-lockout clause 13 The complaint alleged • the date as "[oln or about January 25, 1969 " Respondent's records, however, establish the effective date as January 12, 1969 14 Respondent provided a list of 25 employees Of these 20 received increases on January 12, 1969, 3 on January' 13, '1 on January 29 One, J Johnson, appears not to have received' an increase, making the total 24 rather than 25 23 He testified as follows "Generally these things are within the A W CULLUM & CO , INC Each employee is evaluated after his first 6 months' service and at least every 6 months thereafter The merit increase program has never been reduced to writ- ing, but, according to Cullum, an employee handbook refers generally to the Company's policy of rewarding merit The handbook was not produced Cullum also testified that in 196526 he had consulted a representative of the Board who approved the Compa ny's granting merit wage increases Cullum maintained that since that time he had acted in accordance with the advice so given by the Board's agent The record contains no details Cullum further testified that merit increases had been granted, according to the established policy, in February 1968,27 but that the pattern was then disrupted when the strike commenced and an across- the-board wage increase was given ground April 22 1968 According to Cullum, no further increases were given to unit employees in 1968 because of these two and because, during the strike, which lasted through October, there were few, if any, employees in the unit with sufficient length of service to be eligible for merit increases 28 MONTH UNIT EMPLOYEES NONUNIT EMPI OYEES 1963 1964 1965 1966 1967 1968 1963 1964 1965 1966 1967 1968 Jan 0 0 1 0 0 1 Jan 1 2 8 14 3 4 Feb 0 7 6 0 1 23 Feb 1 2 1 0 0 0 Mar 11 2 5 0 16 0 Mar 3 1 1 0 1 3 Apr 0 0 1 18 0 1 Apr 7 6 0 1 2 3 May 0 0 2 5 0 0 May 2 4 18 7 2 1 June 0 0 0 0 0 0 June 4 0 1 0 1 3 July 0 0 1 1 0 0 July 3 5 2 6 4 0 Aug 0 1 4 0 0 2 Aug 0 2 0 1 0 1 Sept 0 1 2 0 12 0 Sept 2 1 0 0 3 2 Oct 0 0 0 1 0 0 Oct 0 3 0 0 1 4 Nov 2 0 15 0 0 0 Nov 13 11 7 11 9 7 Dec 0 0 0 0 0 0 Dec 1 I 1 1 0 6 D Discussion and Conclusions I Refusal to bargain Like most cases alleging a refusal to bargain in good faith, the instant case presents the difficult problem of determining a subjective state of mind Respondent's corporate state of mind must, of course, be inferred primarily from the conduct of its representatives peiiod of four or live weeks after the close of the quartet it would be January or early February April or early May or the July or early August are t It would not he in June We ire in the last month of a quarter now So it will be sometime after the end of June 2" As previously noted the Union had been certified in 1964 and there were some unproductive contract negotiations in 1965 2 Written evidence prepared by Respondent shows 23 increases to unit employees on February 5 1968 28 Documentary evidence shows one merit increase in the unit in April 1968 and two in August 1968 N L R B v Arkansas Rice Growers, 400 F 2d 565 (C A 8), NLRB v Patent Trader, Inc 415 F 2d 190, 197 And the course of conduct is properly viewed in its totality Tex Tan Welhausen Co , 172 NLRB No 93, enfd 419 F 2d 1265 (C A 5) [vacated and remanded on other grounds 397 U S 8191 The chronology of negotiations, as summarized above, shows a pattern of "stalling" by Respondent On October 23, 1968, when the settlement agreement was reached, over 10 months after the Union's second certification, the Union acceded to Respondent's request for a delay of 2 weeks for the first negotiating meeting However, despite continual importuning by the Union thereafter, 2th months elapsed before a first negotiating meeting was held Respondent's representatives then limited that session to 12 hours In all there were only six meetings, for a total of about 12 to 15 hours at most Throughout this period the Union was urging more frequent and longer sessions 23 Cullum testified that the Company "resumed the regu- lar pattern in January of 1969 , and again in April of 1969 " However , no evidence was provided concerning April 1969 increases , and the complaint contains no allegation with respect thereto Cullum also maintained that the Union had been fully conversant with the Com pany's past practice He said that he had notified Rose- borough of the pending evaluation on January 6, 1969 only as a matter of "courtesy " and had not anticipated the possibility of any objection by the Union However, Cullum did acknowledge that at the January 8, 1969, meeting Weldon asked for relevant data, asked many questions , and said the Union could not at that time either approve or disapprove As heretofore set forth, the merit wage increases were actually put into effect, without notice to the Union , before the next bargaining session and before any relevant wage data was provided to the Union The following table shows the number of merit wage increases granted by Respondent in the years 1963 through 1968, inclusive , as disclosed in the data provided by Respondent 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent ' s only exculpatory claim is that Sampels and Cullum were busy with other matters. Respondent refers primarily to Cullum's civic responsibilities , includ- ing service a$ a member of the Dallas city council and during part of November and December 1968, as acting mayor of the city . Praiseworthy as Cullum's public service may be, Respondent ' s employees cannot be made involuntarily to assume the burden thereof. The law imposed ' on Respondent the affirmative duty to bargain with the Union and that obligation could not be met or avoided by Cullum's election to ascribe a higher ' priority to other matters . Nor was Respondent relieved of its affirmative obligation to meet with the Union at reasonable times by the fact that Sampels, its chief negotiator , is a busy ' practictioner who claims to have had other professional commitments which pre- vented more frequent and extended bargaining sessions. N.L.R.B. v. Exchange Parts Co. 339 F . 2d 829 , 832-833 (C.A 5); A. H. Belo Corp . V. 'N.L.R. B., 411 F 2d 959, 968 (C.A. 5); Bradenton Coca-Cola Bottling Co., supra, at 45-46; Skyland Hosiery Mills, Inc , 108 NLRB 1600, 1605. The Union repeatedly requested that, if Sampels and/ or Cullum were too busy to negotiate , Respondent desig- nate Attorney Holmes or other representatives with bargaining authority . Cullum ' s purported explanation for his refusal to designate a deputy was singularly uncon- vincing. 'In this connection it should be noted that Respondent has a full-time personnel director 'While the Union could not , and did not attempt to, dictate who should bargain on behalf of Respondent , the Union did have the legal right to insist that the Company , meet at reasonable times through authorized 'representa- tives. • Because it has been found that Respondent did unduly delay the negotiations , employing dilatory tactics, it is perhaps unnecessary to consider the other allegations of the complaint "[s]ince one such violation is enough to trigger the section 8(a)(5) order ." N.L.R.B. v B. F. Diamond Construction Co., 410 F.2d 462 (C.A. 5), cert . denied 396 U.S. 835 . However , the evidence con- cerning other specific allegations will be briefly discussed because it combines with the chronology to form a total picture of foot-dragging reluctance by Respondent to reach any agreement. While it is a truism that Respondent was not required to make any concessions or to agree to any of the Union's specific demands, the Company's positions on various items give a clue to its state of mind. Tex Tan Welhausen Co. v. N.L.R.B., 419 F.2d 1265, 1268-69, and cases there cited ; Stee'lworke'rs v NI.R.B. (Missis- sippi Steel Corp.), 405 F.2d 1373, 1376 (C.A.D.C.). Respondent ' s attitude toward seniority is most sympto- matic. Seniority was among the major issues separating the parties when negotiations were previously broken off and refusal to bargain concerning seniority was one of the allegations in the prior complaint . After the settle- ment agreement , Respondent's position on seniority stiffened even more . In its poststrike contract proposal, Respondent eliminated "length of service" from the list of criteria it had itself previously adopted for entitle- ment to merit wage increases and promotions. Its "uncompromising attitude" and the increased severity of its position provide considerable "insight into Respondent's lack of good faith in its negotiations with the 'Union." N.L.R.B. v. Tower Hosiery Mills, Inc., 180 F.2d 701, 705 (C.A. 4). And when Weldon sought to break the seniority problem down, to see if the parties might agree to a limited adoption of the principle, applying it to some of the individual components of the employment relationship, Sampels refused to consid- er anything other than a written proposal. Such rejection of Weldon's flexible approach bespeaks a disinclination to engage in productive discussion. Respondent's position concerning the checkoff of union dues similarly evidences a desire not to reach agreement. Respondent maintained that if it agreed to check, off union dues for employees within the unit, it would be required to make deductions for any pay- ments that nonunit employees might request, such as payments to churches, lodges, finance companies, etc. When questioned concerning the Company's existing practice to make deductions for the United Givers Fund, the employees' credit union, insurance, and the purchase of tools, Cullum protested that such employee authoriza- tions were "voluntary" and cancellable at will; he made no reference to the facts that'by law checkoff authoriza- tions must be voluntary and the Union had offered to accept checkoff authorizations cancellable upon 30 days' notice. Cullum also referred to union dues as payments to "an outsider." Manifestly union dues are more intimately connected with the employment relation- ship than is the Community Chest.29 Respondent's failure to provide any data concerning its anticipated costs resulting from a checkoff gives" further reason to doubt the bona fides of its position. Finally, Respondent's rejection of the Union's alternative, reduced demands,,, without making any counterproposals,'further establishes a refusal to bargain on the issue. N.L.R.B. v. Arkansas Rice Growers, supra at 571 The complaint alleges, and the General Counsel argues in his brief, that the "Protection of Rights," "Warehouse Security," and "Productivity" provisions are nonmanda- tory bargaining issues and therefore Respondent violated Section 8(a)(5) by bargaining to impasse over them . In my opinion, each30 of these provisions "regulates the relations between the employer and employees" (N.L.R.B. v..Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349) and thus they all were mandatory subjects for bargaining. While rejecting the General Counsel' s legal position, the Examiner nonetheless finds that Respondent's picket- 11 The General Counsel's present contention that Respondent's refusal to agree to the checkoff was discriminatory and thus constituted an independent unfair labor practice is discussed below in the section of this Decision entitled "The Remedy an The Company's original "Warehouse Security" proposal did not expressly regulate terms or conditions of employment but appeared only to place some responsibility on the Union Whether or not that original proposal would constitute a mandatory subject for the bargaining, Respondent 's revised demand unquestionably did purport to regulate the employer-employee relationship A W CULLUM & CO , INC line shrinkage and productivity demands provide weighty evidence of its bad-faith bargaining Cullum testified that low productivity and shrinkage were longstanding problems, which were most aggravated during union organizing campaigns and contract negotiations, which had occurred in 1964-65 and again in 1967-68 Yet it was not until January 30, 1969 , more than a year after bargaining began , that Respondent sought any reme dial provision for what it now claims were serious contin- uing problems Cf N L R B v Tower Hosiery 'Mills supra at 705 Respondent could not possibly have thought that the proposals here involved would be acceptable to the Union Certainly the Union could not have been expected readily to agree to a provision forbidding the employees from honoring any picket lines , even in situations in which Respondent 's interests were not involved The revised warehouse-security provision reintroduced lie detector tests, which Respondent knew were anathema to the Union and the employees and which , as a "major concession " to the Union , Respondent had previously deleted from another portion of its contract proposal Further , as the General Counsel argues , Respondent's revised "Warehouse Security" provision was probably unlawful in providing restrictive and disciplinary provi- sions applicable only to union members in proposing a discriminatory provision of that sort , Respondent ran afoul of Section 8(a)(5) Southwestern Pipe, Inc , 179 NLRB No 52 (TXD), section II, I, and Conclusion of Law No 4 In sum , Respondent ' s conduct with respect to the "Protection of Rights," "Warehouse Security," and ` Productivity" provisions reflects its determination to avoid meaningful , productive bargaining , while appearing to continue negotiations N L R B v Reed & Prince Co , 205 F 2d 131, 138 (C A 1), cert denied 346 U S 887, Rhodes-Holland Chevrolet Co , 146 NLRB 1304, 1305, Shovel Supply Co , 162 NLRB 460 , 469 That this was Respondent 's intention was finally demonstrated by the alacrity with which its representatives sought to place the onus for the eventual "impasse" on the Union At the bargaining session of March 21 1969, Weldon reviewed, item by item , the major subjects in dispute between the parties As to each, Sampels said the Company ' s attitude remained unchanged Wel don then said that, in view of the Company?s intransi gence, there obviously was no reason to continue discus sions In this connection , Weldon credibly testified I told Mr Sampels that, in my opinion, that he had forced us to an impasse[311 , that there was an impasse and there was no point in going on Mr Sampels said, You did say that there was an impasse " I got up to leave at that point He said, "Now, I am going to write this down You did say that there was an impasse" 31 The transcript is hereby corrected by substituting impasse for empass wherever the latter appears 25 I said, Yes, I did say there was an impasse and furthermore I think that impasse is caused by your refusal to bargain in good faith," and I told him that there was an impasse , I assumed that he would be taking unilateral action, but we were still the bargaining representative and we still insisted on any information preliminary to that i Although Cullum testified that at the March 21 meeting Respondent stated its willingness and desire to continue negotiations , the Examiner finds that Respondent wasp anxious to seize upon a union declaration of an impasse to end negotiations , while Respondent maintained the image of a righteous and victimized party In short Respondent was really engaged in `shadow boxing to a draw' [and ] filibustering from the inception of negotiations through the administrative moils " Tex Tan Welhausen Co v NL RB supra 419 F 2d at 1268 The remaining question on this phase of the case concerns the date on which Respondent ' s refusal to bargain commenced As previously set forth , the com plaint alleges a refusal to bargain commencing on October 29, 1968,32 the day after the Regional Director approved the earlier settlement agreement On October 23, when the settlement agreement was reached , the Union requested immediate resumption of contract negotiations Company representatives , howev- er, said they needed a delay of 2 weeks and Haddock, the Union ' s president , agreed to such postponement, with Respondent ' s representatives committed to getting in touch with the Union to arrange a meeting Had Respondent's representatives met that commitment, the E^ aminer would not have found a refusal to bargain as early as October 29 However , Respondent 's subse, quent delay despite constant prodding by the Union, leads to the conclusion that the initial request for 2 weeks was but the first step in an extended course of delaying tactics Accordingly , I date the commence merit of the refusal to bargain as October 29, as alleged in the complaint 2 The merit wage increases By letter dated January 6, 1969, Cullum advised Rose borough that an evaluation of employees was in progress for the purpose of granting merit wage increases At the first negotiating meeting, held on January 8, 1969, the Union asked for specified data so that it could examine Respondent's contention that the merit wage increases followed a long-established pattern The Union also requested that it be further advised if the Company decided that the increases were a matter of urgency On January 12, 1969, without further communication with the Union, Respondent granted merit wage increases to 24 unit employees The Union learned of the increases only when, at the second negotiating session, on January 30, it asked for the information it had previously request- ed 32 The charge referred to October 23 the date of the settlement agreement That date is a few day,, before the permissible period under Section 10(b) 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eventually, the Respondent provided information con- cerning prior wage increases of the unit employees who received increases on January 12 1969, as well as some data concerning merit increases to nonunit employees The following is a summary tabulation, on a monthly bards of the number of merit increases in the years 1963 through 1967 inclusive and 1968 as shown in Respondent s figures 1963-67, inclusive MON rH LNIT NONLNIT Jan 1 28 Feb 14 4 Mar 34 6 Apr 19 16 May 7 31 June 0 6 July 2 20 Aug 5 3 Sept 15 6 Oct 1 4 Nov 17 52 Dec 0 4 pattern and it submitted no data other than that summa rized above Two facts stand out first, there was no established pattern of regular quarterly merit increases as Cullum maintained was the Company's custom Second in the 6 years, 1963 through 1968,34 only two unit employees received merit increases in January 3I In view of this the timing of the increases in 1969 takes on great signi ficance Just 2 days before the first negotiating session Cullum advised Roseborough that an evaluation was in progress The increases were made effective 4 or 5 days after the meeting, with no further notice to the Union And the evaluation came 3 to 4 weeks earlier than was "customary" according to Cullum See fn 25, supra The grant of merit wage increases to a substantial number of unit employees without affording the Union an opportunity to bargain about them constituted a refus al to bargain in violation of Section 8(a) (5) N L R B v Benne Katz 369 U S 736, Shovel Supply Co supra 162 NLRB at 463-464 While this is not essential to an 8(a) (5) violation (Bierl Supply Co 179 NLRB No 125), I further find that the increases were intentionally timed to undermine the Union and to influence the course of the contract negotiations which were then getting under way The merit increases thus also form part of the course of conduct which has hitherto been found to constitute a violative refusal to bargain 1968 MONTH UNIT NONLNIT Jan 1 4 Feb 23 0 Mar 0 3 Apr 1 3 May 0 1 June 0 3 July 0 0 Aug 2 1 Sept 0 2 Oct 0 4 Nov 0 7 Dec 0 6 While it may be that the data, particularly those concerning the unit employees, are not complete, there is no reason to believe that they are not representative 33 In any event, Respondent had full opportunity to present evidence in support of its defense that the increases on January 12, 1969, conformed to a long-established 99 Cullum testified We did not pick up all of the historical information on all of the bargaining unit people because of the laborious amount of work involved in this CONCLUSIONS OF LAW I The Company is an employer engaged in commerce and the Union is a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act 2 Truckdrivers, truckdriver helpers, order fillers, shipping and receiving clerks, forklift operators ware housemen, checkers, and garage employees, exclusive of office clerks, plant guards, and all other employees and supervisors as defined by the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act 3 At all times on and since October 29, 1968, the Union has been the certified exclusive collective bargain- ing representative of the Company's employees in the unit described in Conclusion 2 4 At all times on and since October 29, 1968, in contravention of Section 8(a) (5) and (1) of the Act, Respondent has refused to bargain in good faith with the Union, such refusal to bargain consisting of the totality of its conduct, including refusal to meet with the Union at reasonable times for the purpose of collec- 74 To the extent that 1968 was atypical as Cullum maintained its nonrepresentative character arose in April when the strike began and Respondent granted an across the board increase I L V Johnson 10 cent per hour increase on January 17 1965 J V Isaacs 15 cent per hour increase on January 29 1968 A. W. CULLUM & CO., INC. tive bargaining ; refusal to bargain in good faith concern- ing the Union's demands for contract provisions covering checkoff of union dues and employees' seniority rights; inflexible insistence upon the Union's totally renouncing the employees' statutorily protected right to honor lawful picket lines ; belated and unreasonable demands for union responsibility for "warehouse security" and employee productivity; demand for an unlawfully discriminatory contractual provision concerning "warehouse security"; delay in meeting the Union's requests for relevant data; and unilaterally granting wage increases to a substantial number of employees in the bargaining unit in January 1969. 5. By granting wage increases to a substantial number of employees in the bargaining unit on January 12 and 13, 1969, without affording the Union an opportunity to bargain thereon , Respondent was guilty of a refusal to bargain collectively in good faith, thereby committing an unfair labor practice within the meaning of Section 8(a) (5) and (1) of the Act. 6. The aforesaid unfair labor practices affect com- merce within the 'meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices, I recommend that an order issue directing Respondent to cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Act, including posting of appropriate notices and bargaining with the Union at its request . The order will not , however , require that Respondent rescind or terminate the January 1969 unilateral wage increases which have been found to have been granted in contra- vention of the Act. In his brief, the General Counsel contends, as an alternative to his primary position, that Respondent's refusal to agree to a checkoff of union dues while making deductions for such matters as the United Fund, purchase of tools, the credit union, and insurance, is discriminatory and thus independently violative of Sec- tion 8(a) (1). He contends that Respondent's conduct was alleged as violative of Section 8(a) (1), as well as of Section 8 (a) (5). However , in the complaint, violation of Section 8(a) (1) was alleged only deriviatively from the 8 (a) (5) violation. In my opinion, Respondent was not put on notice. that its refusal to grant checkoff was alleged to be discriminatory and thus independently violative of Section 8(a) (1). Accordingly, under the complaint, I would,not order Respondent to agree to a checkoff of union dues as a means, of remedying a violation of Section, 8(a) (1) as,such. At the hearing, the Union sought to have added to the formal papers in this case a letter dated May 7, 1969, by Respondent's counsel' to counsel for the Board and for Respondent. The letter set forth 11 "acts evidencing the employer's overall bad faith." I reject the Union's offer. In its brief, the Union urges that 27 I committed error by excluding the letter. The Union appears to argue that if the letter 1 had been put in the record, it would warrant an order requiring the Company to grant the checkoff. As the Union's brief also appears to acknowledge, the letter of May 7, 1969 (which is retained in the file of this case as a rejected exhibit), really adds nothing of substance to the checkoff allegation in the complaint . It does, however , state that the Union will "request an order specifically remedying all violations proved." In my opinion, had the facts warranted it, a mandatory checkoff order could be issued under the present complaint, without the specific "warn- ing" or notice provided by the Union's letter. On the other hand , if the evidence does not warrant such an order , none would be recommended even if the complaint had alleged the checkoff matter as an independent unfair labor practice and had requested a specific affirmative remedy. Accordingly, rejection of the Union's letter was nonprejudicial and I thus decline to reexamine the ruling. Both the Union and the General Counsel request that Respondent be ordered to agree to a checkoff of union dues under the authority of the Porter case.31 In ordering the employer in Porter to "[g]rant to the Union a contract clause providing for the checkoff of union dues ," the Board laid great emphasis on the fact that "Respondent has repeatedly violated Section 8(a)(5)." In the present case , however , no finding can be made of "repeated" violations of Section 8(a) (5). As previously observed, the prior complaint alleging Respondent 's refusal to bargain ended in an informal settlement agreement which expressly disavowed any admission by Respondent or finding of an unlawful refusal to bargain. In response to a posthearing order in the present case, both the General Counsel and the Union conceded that the prior case can have no effect here even though there has been no determination of Respondent 's compliance with the settlement agreement and the prior complaint has not been dismissed. Accordingly, I believe it would be inappropriate at this time to order Respondent to grant a checkoff clause. However, to avoid any misunderstanding, I specifically note that checkoff is one of the issues which Respondent is required to bargain about in good faith. Continued refusal to grant a checkoff clause , without making some compensating substantial concession and/or supplying data supporting its purported objections , mighi well violate the order here recommended and accordingly might constitute contempt of court if the order is enforced by a court. United Steelworkers v. N.L.R.B. (Roanoke Iron & Bridge Works, Inc.), 390 F.2d 846, 853 (C.A.D.C.), cert. denied 391 U.S. 904; United Steel- workers of America v. N.L.R.B. (H.K. Porter Co.), 363 F.2d 272, 276. 31' H K Porter Co , 153 NLRB 1370, enfd sub nom United Steelwork- ers of America v NLRB , 363 F 2d 272 (C A D C ), cert denied 385 U S 851, clarified 389 F 2d 295 (C A.D C ), supplemental decision 172 NLRB No 72, enfd, 414 F 2d 1123 (C A D C) 28 DECISIONS OF NATIONAI LABOR RELATIONS BOARD RECOMMENDED ORDER Respondent A W Cullum & Company Inc its officers agents successors and assigns shall I Cease 'ind desist from (a) Refusing to bargain collectively in good faith con cerning wages hours and other terms and conditions of employment with General Drivers Warehousemen and Helpers Local 745, affiliated with International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America as exclusive representative of all employees in the following appropriate unit Truckdrivers truckdriver helpers order fillers shipping and receiving clerks forklift operators warehousemen checkers and garage employees exclusive of office clerks, plant guards and all other employees and supervisors as defined in the Act (b) Granting any wage increases to employees within the unit described above without notifying the above named Union and giving it an opportunity to bargain collectively about any proposed wage increases APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had the chance to give evidence the National Labor Relations Board found that we, A W Cullum & Company violated the National Labor Relations Act and ordered us to post this notice telling our employees what we have been ordered to do and not to do in the future The Board has ordered us to tell you that WE WILL On request bargain in good faith, in a sincere effort to reach a collective-bargaining agreement with General Drivers, Warehousemen and Helpers Local 745 Affiliated with International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, concerning the wages, rates of pay hours and terms and conditions of employ ment of our- 2 Take the following affirmative action which will effectuate the policies of the Act (a) Upon request bargain collectively in good faith with the above named Union as the exclusive represents tive of the employees in the unit heretofore described (b) Post at its Dallas Texas premises copies of the attached notice marked `Appendix "3' Copies of the notice on forms furnished by the Regional Director for Region 16 shall after being signed by an authorized representative of the Company be posted by it immedi- ately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employ- ees are customarily posted Reasonable steps shall be taken by the Company to assure that said notices are not altered defaced, or covered by any other material (c) Notify the Regional Director for Region 16 in writing within 20 days from the receipt of this Recom- mended Order what steps it has taken to comply here with 11 ' In the event no exceptions ire filed as provided by Section 102 46 of the Rules 'Ind Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order herein sh ill is provided in Section 102 48 of the Rules and Regulations be adopted by the Board 'Ind become its findings conclusions and order and ill objections thereto shall be deemed waived for all purposes In the event that the Board s Order is enforced by a judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the N itional Labor Relations Board shall be changed to re id Posted Pursuant to 'i Judgment of the United States Court of Appe'ils Fnforcing 'in Order of the National Labor Relations Boaid '" In the event that this Recommended Order be adopted by the Board this provision shill be modified to reid Notify said Regional Director in writing within 10 days from the date of this Order what steps the Respondent h is viken to comply herewith Truckdrivers, truckdriver helpers, order fillers, shipping and receiving clerks, forklift operators, warehousemen, checkers and garage employees exclusive of office clerks, plant guards and all other employees and all other supervisors as defined in the Act The Board has ordered us to tell you that WE WILL NOT Refuse to bargain in good faith, in a sincere attempt to reach a collective-bargaining agreement, with the Union concerning the wages rates of pay, hours and terms and conditions of the employees specified above, Make any changes in the wage rates of any of the employees specified above without notifying the Union of what we want to do and giving the Union an opportunity to bargain about it with us A W CULLUM & COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone 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 A W CULLUM & CO , INC 29 Any questions concerning this notice or compliance Office, 8A24 Federal Office Building, 819 Taylor Street, with its provisions, may be directed to the Board's Fort Worth , Texas 76102, 817-334-2921