Standard Trucking Co.

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Standard Trucking Company and Chauffeurs, Teamsters & Helpers Local Union No. 391, and Drivers, Chauffeurs, Warehousemen and Helpers Local 71, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America. Cases 11-CA-3883 and 11-CA-3884 June 18, 1970 DECISION AND ORDER MEMBERS FANNING, MCCULLOCH, AND JENKINS On February 2, 1970, Trial Examiner James T. Barker issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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, the briefs, and the entire record in this proceeding, 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 Recom- mended Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed. ' The Trial Examiner found, and we agree, that statements made by Respondent 's agents concerning its bargaining intentions do not suffi- ciently demonstrate that it entered into or conducted collective-bargaining negotiations in bad faith However, the Trial Examiner did not consider whether these same statements might not also constitute independent un- fair labor practices A review of these incidents discloses that all but one of the credited supervisory pronouncements occurred more than 6 months before the charges in the instant case were filed We are precluded , there- fore, by virtue of Sec 10(b), from finding separate violations of Sec 8(a)(1) of the Act based on statements made during the pre-10 (b) period One statement by Supervisor Ezelle to employee Saunders to the effect that Respondent "would never sign a contract " did occur during the critical period We find, however, that this single remark is too isolated to warrant issuing a remedial order TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. BARKER, Trial Examiner: This matter was heard at Charlotte, North Carolina, on October 9, 10, 14, 15, 16, and 17, 1969, pursuant to charges filed in Case 11-CA-3883 on April 25, 1969, and charges filed in Case 11-CA-3884 on April28, 1969.1 On June 30, the Regional Director for Re- gion 11 of the National Labor Relations Board is- sued an order consolidating cases, complaint, and notice of hearing alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, hereinafter called the Act. The General Coun- sel and Charging Parties timely filed briefs with me. Upon consideration of the briefs and upon the entire record in this case2 and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a North Carolina corporation with terminals in Greensboro and Charlotte, North Carolina, where it is engaged in the trucking business at said terminals. Respondent is a motor freight carrier licensed by the Interstate Commerce Commission. During the 12-month period immediately preced- ing the issuance of the complaint herein, Respond- ent derived from interstate aspects of its opera- tions revenues which exceeded $50,000. Respond- ent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Chauffeurs, Teamsters & Helpers Local Union No. 391, and Drivers, Chauffeurs, Warehousemen and Helpers Local 71, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, hereinafter called Local 391 and Local 71, respectively, or sometimes referred to jointly as the Unions, are admitted to be labor organizations within the meaning of Section 2(5) of the Act, and I so find. III. THE UNFAIR LABOR PRACTICES A. The Issues The consolidated complaint, as amended at the hearing, alleges that the Respondent engaged in ' Unless specifically indicated otherwise , all dates herein refer to the calendar year 1969 2 Pursuant to a motion filed by the General Counsel the transcript of the proceeding is corrected as set forth in the Appendix [omitted from publica- tion ). 183 NLRB No. 67 STANDARD surface bargaining with no intention of consummat- ing a collective-bargaining agreement with the Unions and additionally and separately violated Section 8(a)(5) of the Act by ( a) refusing to agree to a realistic and meaningful arbitration clause while insisting on a limitation of the Unions' right to strike; (b) failing to make adequate counter- proposals; (c) failing adequately to consider the Unions ' proposals ; and (d) maintaining a fixed and adamant attitude against granting a dues checkoff. Moreover , contends the General Counsel, Re- spondent violated Section 8(a)(1) of the Act-and separately manifested its lack of good faith in seek- ing to fulfill its bargaining obligations under Section 8(d) of the Act by threatening never to sign a con- tract and by other threats and promises concerning employees ' strike activities . From all of the forego- ing arises the further question of whether the April 22 strike of unit employees was an unfair labor practice strike. Respondent denies the allegations of the com- plaint, and with respect to its alleged failure to bar- gain in good faith with the Unions , asserts , in sub- stance , that it did so throughout 17 collective-bar- gaining sessions and that the failure of the parties to reach agreement was caused by the Unions' own bad-faith bargaining and by their insistence to a point of impasse upon mandatory bargaining sub- jects to which the Company in good faith was un- willing to accede. B. Pertinent Facts 1. Background facts a. The Respondent's operations Respondent is a short line motor carrier with operating rights in North and South Carolina, as well as to three specific points in the State of Vir- ginia. Respondent operates nine terminals, but only the Charlotte and Greensboro, North Carolina, ter- minals are directly involved in the instant case. T. E. Hemby is chairman of the board of directors of the Company and Thomas Carr is pre- sident. C. W. Hemby, cousin of T. E. Hemby, is ex- ecutive vice president and Joseph F. Woodward is a vice president. At pertinent times George Phillips and Harvey Tillman have been terminal managers at Greensboro and R. H. McKinney has been Char- lotte terminal manager. b. The certifications of the Unions Pursuant to an election conducted on August 29, 1968, the Regional Director for Region 11 on Sep- tember 9, 1968, certified Local 391 as the exclusive collective-bargaining representative for employees in the following described unit: 'The meetings were held on the following dates October 15 and 31, November 19 and 20, and December 12, 1968, January 14, 15, 29, and 30, TRUCKING CO. 565 All over-the-road drivers, local drivers, warehousemen , maintenance employees and dispatcher, employed at Respondent's Greens- boro, North Carolina, terminal , excluding of- fice clerical employees , rate and billing clerks, OS&D clerk , salesmen , guards and supervisors as defined in the Act. Following a secret ballot election conducted on or about September 12, 1968 , the Regional Director certified Local 71 as the exclusive representative for the purpose of collective bargain- ing of employees in the following described unit: All over-the-road drivers , local drivers, warehousemen , maintenance employees, dispatchers , the billing carrier, parts man, tire man, and regular part-time employees em- ployed at Respondent's Charlotte, North Carolina, terminal excluding_ office clerical employees , rate and billing clerks, OS&D clerks, chief dispatcher , casual employees, watchmen and supervisors as defined in the Act. c. The bargaining preliminaries Following an exchange of correspondence between the Unions and Respondent, a collective- bargaining meeting was scheduled for October 15, 1968. Between October 15, 1968, and May 27, 1969,3 17 collective-bargaining sessions were held. In the meantime , prior to the commencement of bargaining, Thomas Carr, president of Respondent, had met with C. W. Hemby and Joseph Woodward and had designated them as members of the negotiating committee which was to conduct the collective-bargaining negotiations on behalf of the Company. Hemby was to serve as the principal spokesman for the Company at the negotiations and Hemby and Woodward were to be assisted by R. H. McKinney and George Phillips, terminal managers of the Charlotte and Greensboro ter- minals , respectively. Phillips participated as a member of the Company's negotiating committee until January 1969 when he resigned his position of employment with the Respondent and was suc- ceeded as terminal manager and as a ,negotiating committee member by Harvey Tillman. Hemby sustained an injury between the meeting of Februa- ry 27 and March 13 and was hospitalized until mid- June. Local 71 was represented at the collective-bar- gaining negotiations principally by M. O. Hodge, a business representative, and W. C. Barbee, pres- ident. Bruce Blevins , secretary-treasurer of Local 391, was the principal representative of Local 391 and he was assisted in the negotiations by Ken Bow- man. Throughout virtually all of the negotiations Local 71 was represented by a three-man employee bargaining committee and Local 391 by a two-man February 26 and 27, March 13 and 25, April 9 and 18, and May 20 and 27, 1969 566 employee committee. DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. The preelection letters Prior to the elections conducted at the Greens- boro and Charlotte terminals, respectively, Respondent sent to unit employees letters signed by the principal officers of the Company, T. E. Hem- by, C. W. Hemby, and Thomas Carr. These letters were comprised of six pages and were devoted prin- cipally to pointing up the disadvantages of unionization . The last page of each letter contained the following paragraph: If you will study this whole matter thoroughly, we believe you will surely come to the conclu- sion in your own good judgment:-That you stand to lose if this Union were to get in here and that you stand to gain by keeping it out! e. T. E. Hemby and Lewis converse In late August 1968, Otho Lewis, then serving as assistant terminal manager of the Greensboro ter- minal, conversed with T. E. Hemby, chairman of the board of directors of Respondent. The conver- sation transpired at the Charlotte terminal at the general office of the Company. Hemby asked Lewis "What the boys in Greensboro wanted" and Lewis answered that he did not know. However, Lewis stated that he supposed "they are looking for com- parable rates as to other union carriers." Hemb answered that he could not "pay those type wages and explained that the Company only serviced a two-state area and there had not been a recent in- crease in the Company's tariff. Thereupon, Hemby inquired who the " ringleaders" of the Unions were and Lewis designated six employees by name. Hemby wrote down the names and stated that he would never sign a contract and that anybody who walked off the dock would never come back to work for him.4 f. Statements by supervision Soon after the September 1968 election at the Charlotte terminal, Dewey Shepherd, a dock super- visor,5 stated to employees Alvin Watkins and John Arant as they were conversing together, "[W]ell, I ' The foregoing is based on the credited testimony of Otho Lewis, which is uncontradicted By his demeanor as he testified Lewis impressed me as a credible witness, and he was convincing in his testimony both on direct ex- amination and cross-examination to the effect that T E Hemby stated in specific terms that he would not "sign a contract " I have considered Lewis' testimony to the effect that after terminating his employment with the Company and working for a time in the employ of another trucking firm he contacted Respondent 's president seeking to be reemployed by the Company. During the course of this conversation he informed Respond- ent's president that he would be speaking with the secretary-treasurer of Local 391 Lewis was not in Respondent 's employ at the time of the hear- ing Lewis did thereafter give an affidavit to the secretary -treasurer of Local 391 containing references to the Hemby conversation in August I find nothing in this chain of events to warrant a conclusion that Lewis' testimony was retributive or formulated merely to do harm to the Com- pany reckon you boys know you lost your 15-cent raise by doing what you have done."' In late September or early October 1968, Walter Lewis, a warehousemen at the Charlotte terminal, conversed with Harry Ezelle, whose job title was that of supervisor. Lewis asked Ezeile what "Mr. Hemby" thought about the employees voting for the Union.' Ezelle answered that Hemby had said that the employees "had messed up" by voting for the Union and that they had "turned down a good raise." Ezelle further stated that Hemby said he was not going to "sign nothing. "8 2. The alleged unlawful conduct a. Interference, restraint, and coercion (1) The alleged threat Strong and Hemby Converse Employee H. T. Strong testified that on a morn- ing in January 1969 he spoke with C. W. Hemby in the parking lot at the terminal. Strong testified that Hemby greeted him as he passed by Hemby's au- tomobile. Strong testified that thereafter Hemby stated that anyone who went on strike would be fired and that Strong should "pass the word around to the rest of the men that they wouldn't have any job" if they went out on strike. C. W. Hemby credibly denied having made these or similar statements to Strong. Hemby further credibly testified that after the Unions were certified he issued instructions to the terminal managers to convey to their supervisors that they were not to discuss with the employees the collective-bargaining negotiations which were then imminent.' (2) The alleged inducements to abandon the strike (a) Kinley and Tillman converse In late April, Vernon Kinley, a driver at the Greensboro terminal, made telephonic contact with Harvey Tillman, manager of the Greensboro ter- minal. Kinley was on strike and initiated the telephone call to Tillman because he was consider- ' The testimony of C W Hemby reveals that Shepherd possessed authority sufficient to constitute him a supervisor within the meaning of the Act 6 The testimony of Alvin Watkins with respect to this incident is un- refuted Watkins testified that he had heard from another road driver that a 15-cent-per-hour raise was pending Lewis did not specify the "Mr Hemby" to which he had reference ' C W Hemby denied having informed any supervisor that he would not sign a collective-bargaining agreement T E Hemby did not testify con- cerning this matter but there is no evidence of record to reveal that Harry Ezelle, who appears to be a lower echelon line supervisor, would have oc- casion to speak directly with the chairman of the board of directors con- cerning such a matter s As found, the certification of Local 391 issued on September 9, 1968, and that of Local 71 issued on September 20, 1968 STANDARD TRUCKING CO. 567 ing returning to work and because he was con- cerned over a rumor that striking drivers would be terminated upon their return to work. Upon reaching Tillman by telephone he spoke to Tillman concerning these matters.1° Tillman answered, in substance, that if Kinley decided to come back to work there would be no hard feelings and that he could be employed as long as his work was satisfac- tory." Several days later Kinley and Tillman engaged in a conversation at a drive-in restaurant near the plant. As Tillman was leaving the plant premises in his automobile at the end of the workday, he ob- served Kinley in his automobile and signaled Kinley to follow him. They went to the drive-in and there conversed. No one else was present. During the conversation Kinley broached the subject of his return to work and expressed his concern over the possibility that the Company might employ him and then through subterfuge discharge him merely to get rid of him. Tillman gave him assurances against this and stated that he would not be discharged. Kinley inquired if there would be any difference in his employment status and Tillman assured him that he would return as a driver and that the only dif- ference would be that he would receive a 15-cent- per-hour wage increase which had been put in ef- fect for the Greensboro drivers. Thereupon, the conversation turned to some suspected strike violence which the Company was allegedly experiencing at the Greensboro terminal. Tillman described for Kinley the nature of the events that he said had transpired and stated that he would like to know the identity of the in- dividuals who were performing the acts of property destruction which he had described. Kinley an- swered by proffering several names.12 Tillman an- swered that the "troublemakers" would not be returning to work. When the conversation of some 90 minutes' duration ended, no understanding had been reached with respect to Kinley's return to work.13 (b) Hemby and Ratliff converse In early May, Robert Ratliff, a warehouseman on strike at the Charlotte terminal , spoke by telephone with C . W. Hemby concerning his vacation check. During the conversation Hemby asked Ratliff if he had considered returning to work . Ratliff answered that he did not know and asked Hemby if anything had been done "about the contract." Hemby an- swered in the negative and stated that the Company was "needing good men ." He also observed that Ratliff and his 'brother, who was also an employee on strike , were both "good people ." Hemby sug- gested that Ratliff and his brother talk the matter over. Hemby stated that the Company would like to have them if they desired to come back.14 (c) Ratliff speaks with McKinney Approximately 10 days later, on or about May 22, Ratliff went to the terminal office to obtain his vacation check and while he was there he spoke with R. H. McKinney, terminal manager. Ratliff asked McKinney how long the strike would last and stated that he was endeavoring to decide whether or not to come back. McKinney stated that he could not advise him with respect to this decision 10 Neither Kinley nor Tillman, who testified concerning this conversa- tion , could remember with certitude whether or not Kinley made the telephone call in person or whether a fellow employee, Tuttle, called on Kinley's behalf 11 I have considered the testimony of Harvey Tillman and Vernon Kinsey with respect to the foregoing and rely principally upon the testimony of Tillman The testimony of Kinley in most salient aspects supports that of Tillman However, i do not credit the testimony of Kinley to the extent that it infers that his telephone call was placed to Tillman in response to an earlier effort by Tillman to contact him , nor do I credit Kinley to the effect that Tillman initiated the discussion of Kinley's prospective return to work Rather, I find that this was the purpose of the telephone call to Tillman and that Kinley , or Tuttle, as the case may be, opened the dialogue with respect to this subject matter '=Without identifying them as such, the names proffered by Kinley were those of individuals whom he knew to be prominent in the union move- ment It is clear, however, from Kinley's testimony that he had no informa- tion connecting the individuals named with any picket line or other strike misconduct 1S The foregoing findings are based on a synthesis of the testimony of Harvey Tillman and Vernon Kinley I credit Kinley to the effect that Till- man signaled Kinley to meet with him at the drive-in restaurant and I am convinced that the principal reason that Tillman did so was because he speculated that Kinley might be a source of insight into the identity of strikers who were engaging in strike misconduct Thus, I find that, as Till- man credibly testified, this issue did become a topic of conversation during their meeting and I further find that it was in this context that names of specific individuals were mentioned by Kinley I do not credit the testimony of Kinley to the effect that Tillman urged him to make his decision with respect to returning to work immediately because within a day or two an event of significance bearing on this choice would transpire Nor do I credit Kinley's testimony that Tillman asserted Kinley would improve his seniority standing if he returned to work Tillman convincingly denies having discussed the subject of seniority and when Kin- ley did return to work he appears to have retained his prestrike seniority standing la The foregoing is based upon a composite of the credited testimony of C W Hemby and Robert Ratliff While I find it probable that, contrary to the recollection of Hemby, Ratliff inquired into the status of collective-bar- gaining negotiations, I do not credit the testimony of Ratliff to the effect that Hemby stated in words or substance that the Company was not going to sign any contract For Hemby to have made such a statement would have been contrary to what I find, upon Hemby's testimony, to have been his policy of remaining discreet and noncommittal in his disclosures to person- nel with respect to the subject of collective bargaining 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and stated that Ratliff would have to make up his own mind." (3) Other alleged indicia of bad faith On or about April 18, Edward Sasser, a driver who handled a peddle-run from the Charlotte ter- minal to Gastonia, conversed with R. H. McKinney concerning the need for an additional truck at the Gastonia terminal. McKinney answered that he did not have equipment available for Gastonia because there was a greater need "in the city" than there was in Gastonia. 16 Employee James Saunders testified that in late September 1969 he conversed with Harry Ezelle, described in the record as a supervisor, who stated during a conversation concerning the strike that "Mr. Hemby" would never sign a contract. Saun- ders testified that he told Ezelle that Hemby would either have to sell or sign." b. The negotiations (1) The meeting of October 15 The initial collective-bargaining meeting between the parties occurred on October 15. Present representing the Company was C. W. Hemby, R. H. McKinney, Joseph Woodward, and George Phillips. Representing the Unions were R. V. Durham, W. C. Barbee, Ken Bowman, and M. O. Hodge. Prior to the meeting there had been no exchange of proposals or requests for information on the part of either party. At the outset of the meeting the Unions sub- mitted to the Company the National Master Over- the-Road Freight Agreement, Carolina Supplement; The National Master City Cartage Agreement, Carolina Supplement; and The Carolina Main- tenance Agreement. Additionally, the Unions sub- mitted a brochure pertaining to the central states health and welfare plan and the central states pen- sion plan. The company representatives examined the materials presented by the Unions.18 After studying the documents, C. W. Hemby ob- served that the Company was a "Carolina" opera- tion and that for this reason he did not think that 15 1 have considered the testimony of Robert Ratliff and R H McKinney with respect to the foregoing incident and predicate my findings primarily on the testimony of McKinney which I credit I credit the testimony of Rat- liff only to the extent that it is consistent with the aforesaid findings Specifically, I do not credit the testimony of Ratliff to the effect that during his conversation with McKinney, McKinney stated that the Company had sold 35 trucks and there would be "that many less drivers", or that McKin- ney stated, in this connection, that Ratliff should return to work while there was still an opening for him McKinney denies having made these state- ments He further testified, however, that after the picket line had been established the Company returned certain leased units Preparatory to returning them the Company had scraped the company name from the ex- tenor of the unit He testified also, in substance , that the tractor units were delivered from the terminal premises through the picket line I am con- vinced that through rumor, or from his own personal observation from the picket line, Ratliff became aware of the exodus of the 35 units and was con- cerned over the implications of this in terms of his own job While Ratliff the Company could adopt the national agreement. The Unions asked the Company if the national agreement could be used as a guideline and the Company stated that it would like an opportunity to closely consider the agreements which had been submitted. However, Hemby asked certain clarify- ing questions with respect to references in the con- tract to "moonlighting," jury duty, military leave, and reclassification of drivers. Additionally, Hemby expressed doubt that the Company could agree to the provision in the national agreement relating to transfer of company title and interest. Hemby stated that the Company would not want such a provision in an agreement. During the first meeting the question of the workweek was broached and Durham, speaking on behalf of Local 391, stated that he would not be ad- verse to a 45-hour workweek. Further, there was some discussion of the Unions' dental and health insurance plans. The Company had in its possession at the meeting a booklet containing provisions of the plan and some of the provisions of that plan were compared with counterpart provisions in the Unions' plan. The Company requested an opportunity to further consider the national agreement submitted to it by the Unions at the first meeting and the meeting terminated with a tentative agreement on a date for the next meeting. (2) The meeting of October 31 At the outset of the meeting the application of the national agreement to the operations of the Company became the topic of discussion. Barbee, speaking on behalf of the Unions, observed that the first 38 articles of the national agreement dealt with people" and that the agreement could be adapted to the Company as a single employer. Hemby stated, however, that because the Company was a short line carrier with operating rights limited essentially to the two-state area of the Carolinas, the Company would prefer to have a contract "separate" from the master agreement. In further discussion of the provisions of the master agreement , the Company stated its objec- tion to any provision relating to the transfer of may have made reference to this matter during his discussion with McKin- ney, I credit McKinney's denial that he made any statements implying a threat to the tenure of Ratliff as a warehouse employee is The foregoing is based on the credited testimony of R H McKinney I do not credit the testimony of Edward Sasser that McKinney stated, in ad- dition to the foregoing, that he understood that the employees were going to strike and that if they did so the Company would "just close up " and that there would be "no union " McKinney , terminal manager , testified con- vincingly that after the Union's certification he followed a strict policy of not discussing the Union or collective -bargaining negotiations with em- ployees His denial of the statements attributed to him by Sasser was con- vincing " Saunders did not testify whether Ezelle's alleged conversation had been with T E Hemby or with C W Hemby is The company representatives were not familiar with the contents of the document submitted to them by the Unions and had had no prior bar- gaining relationship with the Unions or the Teamsters international STANDARD TRUCKING CO. company title and interest and raised some questions concerning the application of seniority provisions of the contract in light of the cross-ter- minal bidding seniority practices which prevailed at the Company. The Company indicated its desire to continue this practice while the Unions stated their preference for terminal seniority. There followed a discussion of the effects of the application of com- panywide seniority upon transfers, vacations, and job bidding rights. It was tentatively agreed that a seniority proposal different from that contained in the master agreement would be drafted. During this meeting the Union also stated its preference for a 3-year agreement. The Company did not state its position on this matter. On behalf of the Unions, Barbee suggested that the meeting be adjourned to accord the union representatives an opportunity to draft a proposal which would reflect the parties' discussions to this point. The Company agreed to the adjournment and the meeting terminated. (3) The meeting of November 19 The third collective-bargaining meeting between the parties transpired on November 19. At the out- set of the meeting the discussion turned to the Unions' written proposal containing a preamble and 45 articles. is The proposal had been submitted to the Company by mail on November 7. At the suggestion of the Union it was agreed that the parties would consider the Unions' proposal item by item and when agreement was reached on a section the working draft containing that section would be initialed and dated. Thereupon, the parties proceeded in the agreed-to manner. At the outset of the discussion the preamble and the recognition clause contained in section 1, arti- cle I, were agreed to as set forth in the Unions' proposal. Section 2, article I, relating to transfer of company title or interest was then discussed. The Company stated its objections to the inclusion of such a provision in the agreement. Hemby stated that the inclusion of this provision in any agreement might prove to be a hindrance to a potential sale of the Company or merger. This item was passed and the parties then discussed article II relating to checkoff of dues. The Company stated its objec- tions to a checkoff provision asserting that the ef- fect of this provision would be to reduce the take- home pay of employees which would, in turn, generate a demand for higher wages. The Unions responded that any dues deduction made under this provision would have to be authorized as a result of a voluntary assignment on behalf of the employees and without such an assignment no deduction could be made. No agreement was reached on this article. 19 A subject outline by article is contained in Appendix B [omitted from publication] 569 Article III, section 1, defining the scope of the agreement was next discussed. The Company inquired as to the import of the reference to 75- mile airline radius contained in the provision and the Unions explained that in addition to covering those job classifications specifically referred to in the agreement, the agreement would encompass drivers dispatched on runs, referred to as peddle- runs, up to a 75-mile radius of the terminal.20 The Company explained that due to the nature of the commodity being delivered, or the urgent need of a customer for a given commodity, dispatches are sometimes made beyond the 75-mile zone. The parties further discussed the reference in the proposal to the 15-mile radius defining the city runs and pointed out that in emergency situations it sometimes became necessary to dispatch a city driver on a peddle-run or vice versa. There followed extensive discussion with respect to the impact of this section of the Unions' proposal upon actual operating eventualities that might arise. Further, in connection with this section, the Com- pany pointed out that at its Charlotte and Greens- boro terminals not all of the classifications speci- fied in the section were actually manned. In this latter regard the Unions stated that the section was worded in a manner to be inclusive of all clas- sifications likely to be employed. No agreement was reached on this proposed section. Section 2 of the scope article was next discussed and questions were raised with respect to the limitation upon the interchange between over-the- road drivers, city drivers, and dockworkers. No agreement was reached on this section and section 3, article III, was next considered. This section which, in substance, precluded su- pervisory personnel from performing work covered by the agreement was discussed in some detail by the parties. The Company inquired into the limita- tion that the section might impose upon its utiliza- tion of supervisory personnel for unloading merchandise from an interline carrier arriving at the terminal at a time when no dockworker was on duty; and the utilization of a shop foreman to road test a vehicle being repaired. Following this discus- sion this section was agreed to. Section 4, article III, which provided for a max- imum of 30 days' trial or probationary period for casual employees was discussed. The Company stated that it presently utilized a 90-day probationa- ry period and stated that the shorter 30-day period provided for in the Unions' proposal would not ac- cord it a sufficient period of time to evaluate the work of an employee. The Unions responded that a 30-day period of time was sufficient, with the possi- ble exception of mechanics, and suggested a 60-day probationary period for the latter classification. No 20 A peddle -run is a dispatch or run which operates outside the city limits of the terminal location accomplishing pickup and delivery of freight, usually within a radius of 75 miles 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement was reached on this section. Section 5, article III, was discussed. This provi- sion which extended to the Unions equal opportuni- ty with "all other sources" to provide the Company with suitable applicants for employment was agreed to by the parties. Section 6, article III, was discussed. This section provided that part-time employees employed on a regular and continuing basis would be covered by all of the provisions of the agreement. The Com- pany stated that it had been its past practice not to extend fringe benefits to part-time employees and .that it would prefer to have this procedure con- tinued. The Unions took the position that part-time employees had been included in the bargaining unit and should be accorded all of the benefits accruing under the agreement . This section was not agreed to at this meeting. Article IV dealing with the subject of stewards was discussed in its entirety. The Company stated that it had no objection to the article which, in its overall terms, defined the duties, authority, and job rights of stewards, but the Company raised some question as to the inclusion in the article of the reference to the collection of dues by the stewards. It was agreed to that the subsection containing this latter reference would be left open but that the balance of the article was acceptable. The parties next considered article V dealing with seniority rights. Section 1 of the article provid- ing that "seniority rights shall prevail" was agreed to. The parties then discussed section 2 which specified bases for terminating accrued seniority. Included among the bases set forth was a layoff of more than 3 years and an absence without report for 72 hours after being relieved from duty. The Company stated that in both instances the time specified was too long. In connection with the 72- hour provision the Company described the poten- tial disruptions and delays resulting from the failure of drivers to call in or report for work and charac- terized the 72-hour proviso as a "license for a 3-day pass." The Company requested that the time period be reduced to 48 hours. Additionally it requested that the 3-year layoff reference be modified to specify a 2-year layoff provision. This was taken under advisement and the parties then turned their attention to sections 3 and 4, article V. These sec- tions dealt with the application of seniority and the maintenance of wage scales in the event of a merger of the Company with another common car- rier. These sections were agreed to by the parties. Section 5 of the seniority article was the next topic of discussion by the parties. The proposed section read as follows: Whenever any part of the existing operation is transferred to any new location, either through opening a new terminal or a new branch, the provisions of this Agreement shall apply to the employees at the new terminal or branch. If the new terminal or branch is not a removal but a new and additional operation that does not affect the existing operation then in that event this Agreement shall not become effec- tive at the new operation. The Company sought the Unions' explanation of the meaning and the impact of this proposal. The Unions offered their interpretation of the proposal as drafted and the Company stated that because of changes in freight flow and the economic complex- ion of a given service area there arose need to transfer a portion of an operation from one ter- minal to another. The application of this proposal to such operational exigencies was not resolved and this section was passed. Section 6, article V, which provided for the post- ing of a seniority list and the settlement of con- troversies pertaining thereto through resort to the grievance procedures, was discussed and agreed to by the parties. However, the agreement was made sub et to a modification in language which was to be later supplied. Section 7, article V, which had the effect of ap- plying company seniority only to vacation rights, was discussed. The Company stated that it had been its practice to apply company seniority for all purposes. No agreement was reached on this sec- tion and it was marked "hold." Section 8, article V, which defined terminal seniority, and instances wherein it would be applied, was passed pending a determination by the parties whether company seniority or classification seniority would be applied under the agreement. Considered next was section 8, which in substance defined the extent to which the Company could affect substantive changes in a job to meet operational demands without opening the job to bidding under this section. This invoked some discussion but the matter was not resolved at this meeting. Section 9, article V, relating to the applicability of seniority to city cartage and maintenance clas- sifications was discussed and agreed to as contained in the Unions' proposal. Sections 10 and 11 which, respectively, related to the application of seniority in the event of a reduc- tion in force or a vacancy were discussed but no agreement was achieved with respect to them. Similarly, section 12 which provided for six separate terminal seniority groupings was discussed but no agreement was achieved with respect to it. The parties next turned their attention to a discussion of article VI dealing with maintenance of standards. In response to the Company's request for an explanation as to the intendment of section 1, the Unions responded that it was the purpose of the section to require the Company to maintain in ef- fect incidental conditions of employment which were not specifically spelled out in the agreement. In extending this explanation to the Company, the Unions specified coffeebreaks, rain gear and uniforms furnished by the Company, vending machines, and handtrucks as items to be encom- STANDARD TRUCKING CO. passed within this section of the proposal. The Company stated that there were certain things that it knew it was providing for the employees which could be defined as being included in the section as it was presently drafted. However, the Company was unwilling to accept the section in its draft form and no agreement was reached with respect to it. However, section 2 which bound the Company not to enter into any agreement or contract with its employees in derogation of the terms of the agree- ment was agreed to by the parties. Further, the first of the two paragraphs compris- ing section 3 dealing with workweek reduction was agreed to. The paragraph upon which agreement was reached pertained to the requirement that the Company comply with any applicable provisions of the Fair Labor Standards Act and to do so in a manner which would result in no substantial penal- ty to the employees or to the Company. The parties were unable to agree to the second paragraph of section 3 which provided that in the event the parties could not agree to a solution aris- ing under the first paragraph of the section either party would be free to resort to "lawful economic recourse." This paragraph was passed. Section 4, article VI, pertaining to new equipment was agreed to as contained in the Unions' proposal. This proposal had the effect of protecting the Unions' bargaining rights over rates of compensation for work performed in connection with new equipment or new operations not covered by the agreement. The discussion of the parties then turned to arti- cle VII dealing with grievances and disputes. This article, as contained in the Unions' proposal, was comprised of seven separate sections. Section 1 was agreed to by the parties. This section committed the parties to refrain from resort to strikes or lockouts until "all possible means of settlement" provided for in the agreement were invoked. Similarly, section 2 of article VII was agreed to. This section defined the Union's responsibilities for the acts of its agents, set forth a limitation upon the Unions' legal liability in the event of unauthorized strikes, slowdowns, walkouts, etc., and provided for discharge and disciplinary rights on the part of the Company in the event of unauthorized employee actions. Section 3, article VII, was next discussed and the Company stated its objections to the reference to "arbitrator" which was contained therein. The Company was asked if it objected to the principal of arbitration and C. W. Hemby, speaking on behalf of the Company, stated that it did. Hemby stated that, while the Company was in agreement with the grievance procedures outlined in the first two para- graphs, it preferred a grievance procedure which did not call for arbitration. Hemby stated, in this 21 I do not credit the testimony of Joseph Woodward to the effect that Barbee stated , in substance, that the Unions desired an arbitration provi- sion to "take the burden off" the Unions This reference was not contained in his pretrial affidavit relating to the bargaining negotiations and I am con- 571 connection, that he did not feel that a disinterested party should be making decisions with respect to matters about which he had no insight or familiari- ty. W. C. Barbee, speaking on behalf of the Unions, stated that an open-end agreement without a final arbitration provision could leave their party "open to any lawful economic recourse," such as strikes, lockouts, and tieups.21 The meeting terminated at this point. (4) The November 20 meeting Continuing to use the Unions' proposal as the basis for their discussion, the parties at their meet- ing on November 20 commenced their discussion with article VIII and their deliberations at this meeting carried them through a consideration of all of article XXXIII and a portion of article XXXII. During the course of the meeting the parties reached agreement on article VIII, dealing with protection of rights, including a picket line protec- tion clause; a hot cargo clause; a struck goods clause; and a clause governing grievances filed in connection with violations of the article. Similarly, articles X through XVII dealing, respectively, with the subject of bonds; passengers; compensation claims; military service; equipment, accidents, re- ports; posting of agreements; union cooperation; and union activities were all agreed to. Addi- tionally, articles XIX through XXIV covering the subjects of separation of employment; inspection privileges; separability and savings clause; timesheets and timeclocks; emergency reopening; and piggy-back, barge, etc., were agreed to by the parties. Also agreement was achieved at the November 20 meeting on articles XXVI through XXIX dealing with employee bail; leave of absence; discharge, suspension, or other disciplinary action; and examination and identification fees. Agreement was also achieved on the first paragraph of article XXXI dealing with pay periods. The second para- graph of the Unions' proposal with respect to this article was withdrawn by the Unions. In discussing article IX, Hemby, speaking on be- half of the Company, stated that it was the Com- pany's practice, in the event a driver was involved in an accident causing damage to company equip- ment, to permit the employee to pay for the damage so as not to disqualify him from obtaining a safety award. In some instances, a safety award amounted to as much as $100. The loss or damage provision of article IX, as contained in the Unions' proposal, precluded the Company from charging a driver for loss or damage unless proof of gross negligence was shown. Consideration of this provi- sion gave rise to a discussion of the means of disciplining a driver for accidents. The Unions took vinced that the statement which Barbee made concerning the desirability of arbitration was in the context of an explanatory statement urging the merits of arbitration as a means for avoiding union-called strikes and com- pany lockouts 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the position that layoff would constitute sufficient disciplinary action . No agreement was reached on this item and it was passed. The discussion that developed with respect to ar- ticle XVIII , entitled "Owner-Operators," at the November 20 meeting disclosed that at the Greens- boro terminal the Company utilized no owner- operators . However, at the Charlotte terminal owner-operators were used and it was agreed between Local 391 and the Company that the Unions would submit language covering this matter at a future time. The parties reached agreement on section 2, arti- cle XVIII, as contained in the Unions' proposal. This section specified that the Company would not require "as a condition of employment that any em- ployee purchase a truck , tractor, tractor-trailer or other equipment." In connection with the discussion of article XXV dealing with subcontracting, the Company ex- plained that the Company did not utilize subcon- tracting. Hemby stated that the only instances of subcontracting had been in connection with the en- forcement of the warranty provisions covering new equipment purchased by the Company. However, with respect to this provision, the Company raised the question as to the applicability and effect of the term "leased" as contained in the proposed language covering subcontracting, upon the Company s practice at the Charlotte terminal of utilizing owner-operators . At the request of the Company, this article was left open. Partial agreement only was reached at the November 20 meeting with respect to article XXX, dealing with lodging . Article XXX in its original form was comprised of five paragraphs. The parties agreed to three paragraphs of the article and one paragraph was deleted at the Company 's request. The final paragraph of the article was passed over because of company objection to the requirement contained therein that construction of new com- pany-owned dormitories be subject to approval by the "Carolina Bi-State Committee ." It was the Company 's position that the Bi-State Committee had no role in the relationship between the Com- pany and the Union. The discussion of article XXXII , paid-for time, which transpired near the end of the November 20 meeting, generated a suggestion by W. C. Barbee, on behalf of the Unions , that as the subject matter of this article was essentially monetary in nature it be deferred . It was Barbee 's suggestion that all monetary items be discussed at one time . The Com- pany agreed to the suggestion. However, the article was discussed in general terms and the company representatives raised cer- tain questions with respect to the effects upon operating procedures of certain provisions con- tained in this article . Hemby pointed out with respect to section 4 dealing with layovers that the Company did not presently pay drivers for delays, which were in his opinion adequately covered by the mileage rate allowance. In conjunction with the general discussion, the Unions raised questions con- cerning the Company's dispatch procedure. M. O. Hodge, on behalf of the Unions, inquired if the dispatch procedure had been reduced to writing. Joseph Woodward, on behalf of the Company, stated that so far as he was aware there were no written dispatch procedures and that no one in- dividual in the Company was possessed of informa- tion concerning all facets of this procedure. With article XXXII still under discussion the parties agreed to meet again on December 12 and the meeting terminated. (5) The meeting of December 12 The discussion at the meeting of December 12 commenced with a consideration of items con- tained in article XXXII. Sections 6, 7, and 8 of arti- cle XXXII covering pay for deadheading, bobtail- ing, and time off were discussed and agreed to. The discussion then turned to article XXXIII, entitled "Vacations." The article as contained in the Unions' proposal was comprised of six sections. In essence, section 1 provided that an employee who worked 60 percent or more of the total working time during any 12-month period would receive paid vacations on the basis of 1 week after 1 year's employment; 2 weeks after completion of 3 years' employment; 3 weeks after 10 years; and 4 weeks after 15 years. Sections 2 and 3, article XXXIII, dealt with formu- las for computation of eligibility. With respect to the length of the vacation, the Company responded that it was its present practice to give 1 week's vacation after 1 year of employ- ment; 2 weeks after 3 years' employment; and 3 weeks after 15 years. The Company stated that it was not favorably disposed toward the granting of 4 weeks' vacation. There followed a discussion of sections 2 and 3, article XXXIII, with respect to the proration and accrual of vacation under the 60-percent-of-total- working-days formula set forth in the Unions' proposal. After some discussion these sections together with section 1 of the vacation article were passed over, as they were essentially monetary items. However, consideration was given to sections 4 and 5, article XXXIII, dealing with scheduling of vacations and notice to employees. Agreement was reached on those sections. No agreement was reached on section 6 which established the basis or formula for calculating vacation pay of road drivers. The discussion then turned to article XXXIV, en- titled "Holidays." This article was comprised of eight sections. Section 1 of the article provided for seven paid holidays with compensation to be on the basis of 8 hours at the regular hourly rate of pay of the employee. The proposal designated New Year's Day, Memorial Day, Fourth of July, Labor Day, STANDARD TRUCKING CO. 573 Thanksgiving Day, Christmas Day, and the em- ployee's birthday as the holidays to be observed. Moreover, the proposal provided that within the ju- risdiction of Local 391, Easter Monday would be observed in lieu of Memorial Day in the absence of mutual agreement to the contrary on the part of the Company and Local 391. The ompany countered with the suggestion that the employee's birthday would be substituted for Memorial Day in the area of Local 71 and for Easter Monday in the jurisdic- tion of Local 391. Moreover, one of the company representatives observed that under present com- pany practice the employee was given the option of taking a day off on any day of the week in which his birthday occurred. The Company stated its desire to retain six paid holidays. No agreement was reached at this meeting on section 1 of article XXXIV. Discussion next dealt with section 2 which pro- vided for a minimum guarantee of 6 hours' pay and compensation at two times the regular rate of pay to employees, except road drivers, called to work on a designated holiday. The Company stated that it did not follow a practice of guaranteeing em- ployees a minimum under such circumstances. It was further stated that it was present company practice to compensate employees called to work on holidays at straight time only. The Company stated its desire to adhere to this practice. No agreement was reached on section 2. Sections 3, 4, and 5 were next considered and were agreed upon by the parties. Section 3 would grant to an employee an additional day's vacation pay when a holiday falls within his vacation period; section 4 provides that an employee must work either the day preceding or the day following a holiday to qualify for holiday pay; and section 5 ex- cludes probationary employees from holiday entit- lement. No agreement was reached on section 6 which would grant holiday pay to regular em- ployees if a holiday should fall within the first 30 days of absence due to illness or nonoccupational injury, or within the first 6 months of absence due to occupational injury. However section 7 dealing with the calculation of eligibility for holiday pay of laid-off employees was approved as was section 8 which, with modifications, provides for the com- pensation of employees when a holiday falls on his day off. Thus, sections 1, 2, and 6, article XXXIV, were passed over. Articles XXXV and XXXVI dealing, respective- ly, with funeral leave and jury duty were discussed and agreement was reached on these articles. The discussion then turned to article XXXVII dealing with health and welfare. The discussion of this article combined with a discussion of article XXXVIII pertaining to pension fund. The Unions' proposal with respect to these articles was as fol- lows: Article XXXVII: The Employer agrees to maintain a Health & Welfare plan for its employees and their dependents at no less than is outlined in the Company booklet including sick leave and salary continuation at no cost to the employee. Article XXXVIII: Central States, Southeast and Southwest Areas Pension Fund to be negotiated. With respect to the subject of health and welfare, the Company stated that it did not favor a plan which required the Company to absorb the entire cost . Barbee stated that Local 71 desired to adopt the central states health and welfare plan while Blevins asserted that Local 391 would be willing to accept either the central states plan or the in- surance plan then in effect at the Company. This led to a discussion of the cost of the Company's present plan and, in response to a question by a representative of the Unions, Woodward replied that he did not know the exact cost but would en- deavor to determine this so that this matter might be considered in conjunction with other monetary items. The pension fund was next discussed and the Unions requested that the parties adopt some form of the central states, southeast, and southwest areas pension fund. The Unions made no attempt to specify the level of the pension under the Unions' pension plan. Hemby, speaking for the Company, stated that the Company desired to retain the Com- pany's existing profit-sharing plan and article XXX- VIII, like companion article XXXVII, was passed over. Articles XXXIX and XL, meal period and sanita- ry conditions, respectively, were discussed and agreed upon. Consideration then turned to article XLI, entitled "Workday, Workweek." This article was a detailed one comprised of 13 sections. Con- sideration was given at this meeting to the first 5 sections. The first three sections provided, in substance, that the workweek shall consist of 5 consecutive days and the workday of 8 consecutive hours; that time worked in excess of 8 hours in any given day shall be compensated at a rate of time and a half; that any hours worked in excess of 40 in a single workweek shall be similarly compensated; that work on the sixth consecutive day or on an em- ployee's day off shall be compensated at the rate of time and a half; and that work on the seventh con- secutive day shall be compensated at double time. Speaking on behalf of the Company, Hemby stated that the Company was operating on the basis of a 9-hour day and 45-hour week based on 5 con- secutive days. Hemby stated the Company's desire to retain this workday and workweek. Hemby further stated that, with respect to section 2, the Company paid no daily overtime and paid overtime to drivers only after 45 hours per week. Addi- tionally, Hemby stated that it was the policy of the Company to pay $1 per hour above hourly scale to 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers who worked on Saturday. Hemby stated that he desired to maintain this policy in effect. Sections 1, 2, and 3 of article XLI were passed over. Section 4, providing that the Company would not maintain split shifts, was discussed and the sec- tion was adopted. Section 5 which proved that overtime would not be used in making up the weekly minimum guaran- tee for regular drivers, a topic encompassed by sec- tion 6, was passed over in light of the absence of any agreement on overtime. However, in discussing section 5, Hemby stated on behalf of the Company that the Company was using the equivalent of over- time in meeting weekly minimum guarantees with respect to peddle drivers, city drivers, and road drivers and would like to continue this practice. The meeting of December 20 ended with this discussion and the parties next met in collective- bargaining session on January 14. (6) The meeting of January 14 At this meeting the parties resumed their con- sideration of article XLI and there was extensive discussion concerning sections 6 through 13. In discussing section 6, the parties gave extensive consideration to the types of employee absences which would render inapplicable the weekly guarantee provided for by other sections of article XLI. Agreement was reached on this section. Attention was given to section 7 of article XLI dealing with the compensation of employees as- signed to work tasks in classifications other than their own. There was a detailed discussion of the ef- fects of varying instances wherein an employee might be assigned to a job task normally performed by an employee in a classification receiving either a higher or lower rate of pay. These discussions were essentially exploratory and informative in nature and no determination was reached at this meeting with respect to section 7. The other provision given consideration during the morning session of the meeting of January 14 was section 8, article XLI, dealing with employee interchange and layoff during slack periods. Sub- stantial agreement was reached with respect to this section, but minor language changes were made at a later meeting. Section 9, article XLI, authorizing the use of 15 percent of the newest segment of the employee complement as "unassigned employees" was agreed to at this meeting. Agreement was achieved after the Unions clarified certain language contained therein and after some minor changes in wording were made. Agreement was also reached on section 10, arti- cle XLI, which provided for a guarantee of 4 hours' compensated work for regular employees called back to work after completing their regular work- day and/or regular workweek. In discussing this ar- ticle the Company pointed out that it had no guarantee as provided in section 10 of the Unions' proposal. However, after discussion the Company and the Unions agreed to section 10 as it was con- tained in the Unions' proposal. Section 11 was next considered but no agreement was reached with respect to it. This section pro- vided that, except with respect to regular peddle- run drivers, the Company had no obligation to compensate an employee by overtime or premium pay once the employees' weekly guarantee had been satisfied. With respect to the peddle-run drivers, however, the section provided that these drivers must be allowed to "stay with their runs five (5) days a week." The Company raised the question of the applicability of this section to a hypothetical situation wherein a peddle-run driver had completed 40 hours of work in 4 days' time. The question was raised whether, as was the then current practice, a peddle-run driver could be used on the fifth day for only 5 hours, or less than a full day's work. This question was not resolved and this section was passed over. Section 12 was next discussed and agreement was reached on subsections (a), (c), and (d). Subsec- tion (a) recognized the right of the Company to use casual employees under prescribed procedures and obligated the Company to guarantee a minimum of 4 hours' work to each casual employee called to work and to maintain records with respect to their use. Further it required the Company to utilize regular employees in lieu of casual employees when certain designated conditions had been fulfilled. Subsection (c), in effect, was a limitation upon the formula to be employed for the computation of "days worked" by casual employees. Subsection (d) provided that casual employees working at a "com- bination terminal" shall be paid at the "combina- tion rate." Subsection (b) which provided that casual em- ployees working in excess of the designated work- day or workweek would receive applicable premi- um rates was not agreed upon. The Company, which hired regular part-time employees but not casuals , raised the question whether this section would necessitate separate records being kept for casuals. The Unions deleted section 13, article XLI, and it was agreed that article XLII, wages; article XLIII, mileage and hourly rates for road drivers; and arti- cle XLIV, safety awards and/or bonuses, would be passed over because they were monetary items. However, with respect to article XLIII, the Com- panyy raised the question with respect to section 5 dealing with mileage determination. The question was directed to instances wherein drivers might take routes other than the prescribed routes to complete a run. The parties resolved this issue by substituting the following language for language contained in the draft proposal: "Where a dispute involving mileages between terminals arises, the Employer and the Union shall jointly log the mile- STANDARD TRUCKING CO. age in dispute." With this change the parties reached agreement on section 5. The parties next discussed article XLV, entitled "Termination," dealing with the term of the agree- ment. The Unions again expressed a desire for a 3- year agreement and the Company stated that it preferred a 1-year agreement. The discussion between the parties then turned to the wording of the article, leaving for subsequent determination the question of the length of the agreement. The language of all three sections of article XLV was agreed to at this meeting. At this point in their discussion the parties then turned to the beginning of the agreement and con- sidered those items upon which agreement had not yet been reached. The first item so considered was section 2, article I, transfer of company title or in- terest. The position of the parties remained the same with respect to this section and the discussion then turned to article II, checkoff of dues. Hemby stated that the Company had a very strong feeling with respect to the checkoff of dues, and Barbee, in answer, stated that the Unions had a similarly strong feeling. Hemby stated that if em- ployees chose to belong to a labor organization they should have sufficient loyalty to make dues payments themselves. Hemby also stated that the Company did not favor dues checkoff because it had the effect of reducing the employees' take- home pay and of causing "dissatisfaction at home" which, in turn, had the effect of causing the em- ployee to look to the Company for more money. In response, Barbee stated that the dues checkoff provision was in most labor agreements and that it was "a way of life in the labor movement." No agreement was reached on this item and the discussion then turned to article III, scope of the agreement. The positions of the parties with respect to sec- tion 1 remained essentially the same and no agree- ment was reached on this section. However, agree- ment was reached with respect to section 2, after some language changes to meet questions raised by the Company with respect to its latitude in utilizing city drivers in performing dockwork. Section 4, article III, probationary and casual em- ployees, was next discussed.22 The Company stated its preference for a 60-day probationary period and after some discussion the Unions suggested that, while they would be amenable to a 60-day proba- tionary period for maintenance employees, they desired a 30-day probationary period for drivers. The language of the proposal was ultimately agreed re Joseph Woodward testified that section 3 , article Ill, was discussed at the January 14 meeting and that the section was marked "hold" at that meeting This is in conflict with his earlier testimony that agreement was reached on this section at the November 19 meeting While I credit Wood- ward's testimony that at the November 19 meeting there was an extensive discussion with respect to certain operational circumstances under which utilization of supervisory personnel became mandatory, and that an oral 575 to, with an understanding between the parties that the probationary periods proposed by the Unions at the bargaining table on that day would be opera- tive. Further, an oral agreement was reached with respect to the disciplinary rights of the Company, during the agreed-upon probationary period, with respect to employees who had falsified their em- ployment applications. As the meeting of January 14 neared its end, Hemby requested that OS&D clerks (over, short, and damage) be permitted to perform certain warehouse duties. The Unions took the position that they could not accede to the Company's request because the National Labor Relations Board in the representation proceeding had ex- cluded OS&D clerks from the bargaining unit, rul- ing adversely to the Company's request in this respect. The meeting of January 14 ended at this point and the parties met again the following day. (7) The meeting of January 15 At the outset of the meeting the parties turned their attention to subparagraph 2 of article IV which described as a duty of the job steward the collection of dues. Upon the representation of the Unions that the applicability of this subsection would be dependent upon the agreement reached with respect to the subject of dues checkoff, the parties reached agreement on this item. The parties then returned to their consideration of the sections of article III. Section 6 was first discussed and the Company stated its desire to have part-time employees excluded from participation in the fringe benefits which were being considered for inclusion in the collective-bargaining agreement. It was the position of the Company that the regular part-time employees were paid at a lower hourly rate, did not presently participate in any of the fringe benefits offered by the Company, and were not guaranteed any minimum number of hours. The Unions, on the other hand, contended that the regular part-time employees had been included in the bargaining unit in the representation proceed- ing and should be covered by the the terms of the agreement as provided in section 6, article III. The identity and duties of the regular part- time em- ployees then in the employ of the Company were discussed. No agreement was reached with respect to this section and it was left open. Section 2, article V, was next discussed. This sec- tion provided that seniority would be broken only by discharge, voluntary quit, a layoff of more than understanding with respect to the utilization of supervisory personnel in those circumstances was achieved at the November 19 meeting, I do not credit Woodward's testimony that as of January 14 the entire article was still open While some discussion of the section may have transpired at the January 14 meeting, I find , based on the testimony of M 0 Hodge, con- strued in light of Woodward 's own testimony, that agreement was achieved on this section at the November 19 meeting 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 years, absence without report for 72 hours, non- compliance with leave-of-absence provisions, and failure to observe the requirements or terms of re- call after layoff. The Company requested that a 2- year provision be substituted for the 3-year layoff reference and that 48 hours be substituted for the 72-hour absence provision of the proposal.23 Thus, agreement on this section was reached. In conjunction with consideration of Section 5, article V, which was the next item considered, the Unions offered new language to be substituted for the language in the written proposal. The new lan- guage to be offered under section 5, to be headed "new terminals etc.," was as follows: When any part of the existing operation is transferred to any other location, the em- ployees affected shall be given an opportunity to follow such work in accordance with their seniority and shall carry with them all company seniority for all benefits at the new location. Subsequent to the meeting of November 19 at which this section was first discussed, the Company had explored the effect of the Unions' original sec- tion 5 proposal upon economic exigencies arising from changes in freight flow and the influx of new business . Under the Company's practice as it then existed, it was not the Company's policy to in- variably transfer personnel from one terminal to another to staff changes in operations necessitated by prevailing economic influences. The amended section 5 language was offered by the Unions to meet the Company's objections. At the meeting of January 15 the new language comprising section 5, article V, was adopted. Moving to section 6, article V, the Unions of- fered some amplifying language to be incorporated in section 6. This was in response to the inquiry of Hemby raised at the meeting on the previous day concerning the necessity of maintaining two separate seniority lists . This language was as fol- lows: There shall be two seniority lists, one for main- tenance employees and one for all other em- ployees covered by this agreement. There shall be no interchangeability between the two lists. This modification was agreed to by the parties. The parties, having agreed that company seniori- ty would prevail reached agreement on section 7 of article V. Agreement upon section 8 of the article was achieved after certain additions and deletions in language were accomplished to more accurately reflect company practice of delineating between employees on the basis of maintenance and non- maintenance personnel, and not by separate job a Joseph Woodward so testified and I credit him. The testimony of M. 0 Hodge to the effect that Barbee on behalf of the Unions proposed this modification is not credited I find it more likely that the Company would have been the moving force in seeking this modification because, as Wood- classifications. For the same reason section 10 of article V was similarly modified, and was agreed to as modified. Sections 11 and 12, the only two sections of arti- cle V to which the parties had not agreed, were withdrawn by the Unions. Consideration was next given to section 1, article VI, dealing with maintenance of standards. Hemby, speaking on behalf of the Company, stated that the Company did not understand what the Unions sought to have included within the scope of this provision which, in substance, required the Com- pany to maintain all general working conditions in effect at the time of the execution of the agree- ment. Discussion then turned to such matters as the inclusion of uniforms and rain gear. No agreement was reached on this section. The parties then turned to consideration of sec- tion 3 of the grievance proposal, article VII. As this section, like sections 4 through 7 of this article, re- lated to the role of an arbitrator in the grievance procedures, Barbee, speaking for the Unions, inquired if the Company objected to some form of arbitration. Hemby, on behalf of the Company, stated that the Company was still objecting to ar- bitration as a means of determining unresolved is- sues between the parties. At the meeting of November 19, when this provi- sion was first discussed by the parties, the Com- pany, as found, had stated its objections to having a `third party" who was unfamiliar with the underly- ing details render a decision on matters in dispute. The Company stated that as "reasonable men dispute. the Union and the Company could resolve any misun- derstanding that would develop. Moreover, the Company stated its objections to the cost aspects of engaging in arbitration and the unpredictability, despite the costs incurred, of the decision to be handed down. The Unions stated at the November 19 meeting, as found, that the position of the Company, in ef- fect, was to create an "open end" procedure with respect to grievances and that such a provision in- vited economic recourse by the Unions, in the form of a strike, to resolve disputed matter. At the January 15 meeting, the Company ad- hered to its previous position with respect to ar- bitration and Barbee, speaking on behalf of the Unions, stated that it would not be fair to the em- ployees to have an agreement which did not pro- vide for ultimate determination of dispute. He further stated that he was requesting the Company to reach agreement on some form of arbitration. Barbee asserted that he would not sign any agree- ward testified , the Company was seeking , to the extent possible, to limit the provision 's incursion upon the dispatch freedom of management Thus I conclude that the Company suggested this change and the Unions acquiesced in it STANDARD TRUCKING CO. 577 ment which left the final decision on unresolved is- sues strictly up to management.24 Having reached no agreement on the principal of arbitration, the parties next considered article IX, loss or damage As he had done earlier, Hemby stated that the company policy was to allow drivers to pay for damage to vehicles rather than to lose accruals toward a safety award. Barbee, on behalf of the Union, suggested a language change in the Unions' proposal which would, in substance, meet the wishes of the Company. With this language the sec- tion was agreed upon. By striking, at company suggestion, references in the final paragraph of article XXX to the "Carolina By-State Committee" the parties reached agree- ment on all elements of article XXX. There followed brief discussions with respect to articles XXXII, XXXIII, and XXIV.25 After some brief discussion of paid-for time, which was the sub- ject of article XXXII, the parties agreed that this was essentially an economic issue and that it would be passed. With respect to article XXXIII dealing with vacations, the Company restated its previously articulated position that it desired to adhere to its existing vacation schedule. The parties then briefly discussed article XXIV covering holidays: Hemby stated specifically that the Company was in agree- ment that New Year's Day, Fourth of July, Labor Day, Thanksgiving Day, and Christmas Day would be recognized as holidays. However, Hemby again advanced the suggestion that within the jurisdiction of Local 391 the employee's birthday be substituted for the Easter Monday holiday proposed in the Unions' draft and that in the jurisdiction of Local 71 the employee's birthday be substituted for Memorial Day. No agreement was reached on this and the article was marked "hold." Representatives of the Company suggested that the discussion move on to consideration of wages, but the Unions inquired if the Company had not in- dicated its agreement that the workweek should consist of 5 consecutive days. The Company responded in the affirmative and as a consequence the first paragraph of section 1, article XLI, defin- ing the workweek as 5 consecutive days was ap- proved. The Unions then inquired if the Company had its counterproposal on wages ready for submission. Hemby stated that the Company did not desire to make wages retroactive to September 15. However, Hemby specified the hourly wage range of dock and warehouse employees and of drivers, and stated the Company's willingness to increase the hourly wage rate of all employees in those catego- ries by 15 cents per hour. In addition, the Company proposed that the wages of switchers and shop em- ployees be increased by 15 cents per hour. Further, the Company proposed that the mileage compensa- tion of line drivers be increased one-half cent per mile.26 The rates which the Company specified to the Unions as forming the basis for the 15-cent-per- hour wage increases were those which were in ef- fect at the Charlotte terminal on January 1, 1969.27 No reference was made at this meeting to the wage scales in effect at the other terminals of the Com- pany. In answer to the Company's counterproposal, the Unions asserted in their wage proposal they had specified September 15, 1968, as the effective date because the Unions had been informed that the Company had granted wage increases on Sep- tember 15 to employees at all terminals except Charlotte and Greensboro The Company responded that no wage increase had been put into effect at the latter two terminals because of the proximity of September 15 to the representation election which had been conducted at those ter- minals, and the apprehension of the Company that to have granted the wage increases at those ter- minals would have been construed as an unfair labor practice. The Company further stated that it would not agree to a retroactive wage proposal but that it would be willing to put the wage increases into effect at the Charlotte and Greensboro ter- minals on the effective date of the collective-bar- gaining contract. The Unions stated that they would take the Company's proposal to the membership but that the proposal would not bear the recom- mendation of the negotiating committee. The parties then discussed the final article of the Unions' proposal dealing with the term of the agreement. Hemby stated that the Company favored a 1-year agreement. The meeting ended at this juncture and a meeting was scheduled for January 29. "The testimony of M 0 Hodge attributes to C W Hemby, both at the November 19 and January 15 meetings , a direct statement to the effect that the Company wanted all unresolved disputes left to the ultimate resolution of management The testimony of Joseph Woodward and C W Hemby lends no support to the testimony of Hodge and I am not convinced that the Company at the bargaining table stated , in terms, that this ultimate decisional authority should rest with management Rather, the testimony of Woodward and Hemby convinces me that at the bargaining table the Com- pany took the position that without the interposition of a third party the Unions and the Company could resolve disputes which might arise ss Joseph Woodward so testified but the testimony of M 0 Hodge does not reveal any discussion of these articles Moreover , I credit Woodward to the effect that these articles did receive some attention at the January 15 meetin . 46 The line drivers tall into two categories , the regular line driver and the wild line driver The latter is a driver who is domiciled at a given terminal but may be dispatched from one terminal to another without returning to his terminal of domicile "The prevailing wage scales at Charlotte as stated by Hemby at the meeting were warehousemen , $2 25 per hour to $2 65 per hour, city drivers, $2 65 to $ 3, switchers , $2 75, shop personnel (undesignated), maximum of $3 per hour, line drivers, 9 cents per mile, and wild drivers, 9.25 cents per mile That Hemby specified the Company 's wage scale at the January 15 meet- ing, in response to an inquiry by Barbee, is testified to by M 0 Hodge and substantiated by the testimony of Joseph Woodward on direct examination 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (8) The January 29 meeting After certain preliminary matters were disposed of and after certain clarifying questions and ex- planations had been rendered with respect to items upon which agreement had been reached '21 the parties discussed article VI, maintenance of stan- dards and the principal of arbitration as it related to article VII. There was no change in the position of either party on these proposals. 9 Article XVIII, owner-operators, was then discussed and orally at the meeting the Unions of- fered language which, in effect, left the Company free to enter into equipment lease agreements but provided also that all drivers of any leased equip- ment would be covered by all provisions of the agreement. The Company responded that the lease operators would have to be consulted with respect to this proposal in that there were cost and other economic considerations implicit in the provision. Moreover the Company stated that article XXIX dealing with subcontracting involved lease opera- tors. As a consequence these articles were passed. The subject of vacations was next discussed and, as a counterproposal to article XXXIII, the Com- pany stated that it would desire to continue its present vacation policy of granting 1 week's vaca- tion after 1 year of employment; 2 weeks after 3 years' employment; and 3 weeks after 15 years' em- ployment. However, the Company offered to grant 4 weeks' vacation after 20 years' service. The Unions did not accept the Company's proposal and countered with a modified proposal of I week's vacation after 1 year of employment; 2 weeks after 3 years; 3 weeks after 12 years; and 4 weeks after 16 years.30 No agreement was reached on this matter. However, after some discussion of section 2 of the vacation article the parties agreed to section 2. In agreeing to this section Hemby stated that the provisions were "pretty much" in line with com- pany practice. Additionally, the parties discussed section 3, arti- cle XXXIII, and the Unions' proposal was adopted. With respect to section 6 of the vacation article, the Company stated, that it was its practice to com- pensate road drivers for vacation pay based on a 28 Harvey Tillman, newly designated terminal manager of the Greens- boro terminal , replaced George Phillips as a bargaining committee member at this meeting and at the outset of the meeting asked clarifying questions relating to article III " The testimony of M 0 Hodge does not reveal that these articles were discussed, but the testimony of Joseph Woodward is to the contrary and I credit Woodward Further, M 0 Hodge testified that at the outset of the negotiations on January 29, the Company requested that dispatchers be carried on a separate seniority list Although Woodward does not refer to this discus- sion in his testimony I credit Hodge The Unions stated that, except for the chief dispatcher , the dispatchers had interests in common with the other unit employees and that the Board had ruled on this question Accordingly the Unions denied the Company's request 90 The testimony of M 0 Hodge concerning this offer at this meeting suggests that the Unions' modified proposal provided for 4 weeks' vacation 1,500-mile guarantee . The Company stated its desire to adhere to this practice and this section was passed . The discussion than turned to sections I and 2 of article XXXIV, the holiday proposal. With respect to those sections the Company stated it desired to grant 6 holidays and to guaran- tee a minimum of 6 hours ' pay to employees who were called to work on a holiday . However, in con- trast to the Unions ' proposal which called for com- pensation at two times the straight hourly rate, the Company stated its preference to pay straight time. The Unions did not agree to this proposal and these sections were marked "hold." Section 6 of the holiday article was next discussed and an understanding was reached that, under the terms of this section , the Company would grant holiday pay to an employee -who becomes en- titled to it during a period when he is absent from work due to illness or occupational injury . Pay was to be granted on the basis of the difference between his normal straight-time pay and any sick pay or workmen 's compensation that he may be drawing. With this modification section 6 of the Unions' holiday proposal was adopted. The parties next turned their attention to articles XXXVII and XVIII dealing with health and welfare and the pension fund . The Unions' representatives, Messrs . Barbee and Blevins , conveyed to the Com- pany the desire of the employees and of the union negotiators to obtain some level of the central states health and welfare plan. The Unions agreed to drop their request for the adoption of the central states pension plan. The union representatives stated that the Company 's present profit-sharing plan was not adequate . Further with respect to the Company 's insurance plan, the Unions stated that the employees were dissatisfied with this coverage. Woodward, on behalf of the Company, stated that the Company was now giving consideration to an improved health and welfare plan and was assessing the costs . He stated that he would like to present the plan to the Unions for their consideration. Ac- cordingly, these articles were passed.31 Upon reaching the workday-workweek article, which was set forth in the Unions' written proposal as article XLI, the Unions requested a caucus. The caucus was held and , after returning to the bargain- after 16 years However , the testimony of Joseph Woodward is to the effect that entitlement to 4 weeks' vacation would accrue after 18 years In the total context of the record testimony, and in light of Woodward's sub- sequent testimony that at the February 27 meeting the Unions again modified their proposal to provide for 4 weeks' vacation after 18 years' ser- vice, I credit Hodge " The reference to the Company's consideration of improved health and welfare benefits and the proffer of this plan for future consideration is based on the testimony of M 0 Hodge Joseph Woodward did not testify to this occurrence at the January 29 meeting and, in fact, testified merely that Hemby , speaking for the Company , stated only that the Company desired to adhere to its existing health and welfare plan Upon considera- tion of subsequent events concerning this proposal, I credit Hodge that at the January 29 meeting Woodward did make the observation and proffer testified to by Hodge STANDARD ing session, the Unions stated that the Company's wage offer and overtime proposals had been presented to the employees and had been rejected by them. The Unions stated, however, that in lieu of their written proposals on workday-workweek they desired to present substitute proposals. The Unions proposed that, except for peddle drivers, each employee would have an 8-hour guaranteed workday , with compensation at the rate of time and one-half after 9 hours' work per day, or for all hours worked in excess of 44 hours per week dur- ing the first year of the contract . During the second year of the contract all terms would be the same ex- cept that time and one -half would be paid after 43 hours of work per week. Further, during the third year of the contract all terms would be the same ex- cept that employees would be compensated at time and one-half after 42 hours per week. With respect to peddle drivers a daily guarantee of 8 hours per day would prevail and there would be in effect no daily overtime. However, a peddle driver would be compensated at time and one-half for all work performed in excess of 45 hours per week in any given workweek. Hemby, on behalf of the Company, stated in response that the Company desired to adhere to its present workday and workweek. The Unions stated that this was unacceptable. The parties then discussed section 3, article XLI, and the Company took the position that, because of work of an employer on the sixth or seventh day of any given workweek was voluntary, he should not be compensated at the premium rates provided for in this section . No agreement was reached on this and the parties next considered section 12, sub- paragraph (b), of this article. No agreement was reached on this matter. During the course of this meeting , the term of the agreement was discussed. The Unions observed that in view of the Company's wage proposals it was in- ferrable that the Company was requesting a 1-year agreement . Hemby replied that this was an accurate evaluation and that the Company was proposing a 1-year agreement. (9) The January 30 meeting The parties met again on the following day, January 30. As suggested by the Unions, the parties again discussed those items upon which agreement had not been reached. Article I, section 2, relating to transfer of com- pany title and interest, was the first item discussed but the position of neither party had changed. This item was passed and consideration was then directed to article II dealing with the checkoff of dues. The Company stated that there was no change in its position concerning checkoff and Woodward stated, in substance, that the Company did not favor deductions from employees' pay. The Unions inquired if insurance and Christmas savings TRUCKING CO. 579 and similar items were not already being deducted from the employees ' paychecks. The Company an- swered that this was so and stated that this was the source of the difficulty , in that state , Federal, and social security taxes, and the like, were already being deducted. No agreement was reached and the parties turned to consideration of section 1, sub- paragraph A and B, of article III. After discussion of these subparagraphs the parties agreed to them. They then turned to discussion of article V dealing with seniority rights. At an earlier meeting the Company had requested a separate seniority list for dispatchers. In response to this, the Unions at the January 30 meeting offered , in essence , to modify article V, section 9, to add the following language : "The posi- tion of dispatchers shall not be subject to bid. The company shall have sole discretion in appointing the dispatchers." This modification was agreed to as an addition to section 9, article V. In connection with this addition to section 9, the Unions proposed that the dispatcher be compen- sated at the same rate of pay as had been proposed by the Unions for city drivers . Hemby stated that he did not think that the dispatcher could be covered under the wage and hour provisions of this agree- ment because they fell within the purview of the Federal wage and hour law. Further , the Company contended that the dispatcher job contained at- tributes similar to that of office personnel and should be compensated on the basis of a 40-hour week. The Unions ' representatives agreed to in- vestigate the matter and the issue was held in abeyance for future consideration. Section 1 of article VI dealing with the main- tenance standards was discussed . Woodward, on behalf of the Company , stated that the area of dis- agreement seemed to resolve into a dispute as to whether or not the Company would continue its practice of furnishing uniforms and rain gear. The Company took the position that these were matters to be considered in conjunction with the total cost of the money items contained in the Unions' proposal and accordingly this item was passed over. As the meeting progressed , the Company stated that its position had not changed with respect to those sections of the grievance and dispute article dealing with the concept of arbitration . No agree- ment was reached on this article. With respect to article XXXIII dealing with vaca- tions, the Company restated its offer of 1 week's vacation after 1 year of service; 2 weeks' vacation after 3 years ; 3 weeks ' vacation after 15 years; and 4 weeks' vacation after 20 years ' service. The Unions countered with the suggestion that the Company modify its proposal so that 3 weeks' vaca- tion would be granted after 12 years ' service. The Unions stated that if the Company would modify its proposal in this regard this would be presented to the membership with recommendation for its ap- proval . However, no agreement was reached on this 427-258 C-LT - 74 - 38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter at the meeting. Section 1 of the holiday article was then discussed and the position of neither party changed. The Company then raised certain questions per- taining to the health and welfare article. Hemby stated that the Company would like to compare the Unions' central states health and welfare plan and to determine whether the Company could devise a comparable plan. Hodge, on behalf of the Unions, stated that if the Company could do so he would present the plan to the membership. With this ob- servation the health and welfare article was passed. The Unions then reiterated their statement that they were willing to withdraw their request for the central states southeastern pension fund and that the Unions would be willing to accept the Com- pany's profit-sharing plan. Hemby inquired how long the profit-sharing plan would remain in effect and the Unions asserted that it would be for the life of the contract. The Unions then returned momentarily to a discussion of the health and welfare article and requested that the Company obtain cost figures for the Company's plan both with and without depen- dent coverage. Hemby stated that the Company would endeavor to do so. Article XLI, workday-workweek, was discussed and there was no change in the position of either party with respect to sections 1, 2, 3, and 4. How- ever, section 7 of article XLI was discussed and agreed to as was section 8. The latter section was adopted by the parties after certain clarifying changes in language were made. However, after discussion of sections 11 and 12(b) of article XLI, the parties were unable to reach agreement and these were passed. During the meeting the parties discussed article XLII with specific reference to the wage scale proposal for local and maintenance employees, and the effective date of September 15, 1968, con- tained in the Unions' wage proposal. In their discus- sions of this article the Unions were preparing a separate wage scale for class A mechanics, class B mechanics, and mechanics' helpers. Under the Unions' proposal, there would be no range or distinction made within the classification to reflect length of service. Hemby sought to clarify this, ob- serving that within the shop there were many dif- ferent pay scales based on job content and ability. The Company took the position that within each job category the scale should be graduated so that a starting employee who was inexperienced would not receive top pay. The Unions responded that the job classifications or categories with respect to mechanics and mechanics' helpers would have to be worked out but that with respect to drivers the wage scale would be uniform throughout, re- gardless of length of service or experience. Hemby answered that a new driver would not be familiar with the Company's procedures and consequently should not be started on a wage basis equal to that of a driver who had been with the Company a period of time. Further exploratory discussion en- sued with respect to compensation of employees who were interchanged between warehouse and driving duties. The Unions sought, in this connec- tion, to determine the practice of the Company in compensating new hires. The question was posed whether the Company started dock employees at the top pay level or at a lower level. The Company answered that dock employees were hired at the lowest graduated level and their scale increased after 6 months. The Unions reiterated that under their agreements the pay scale was uniform for each classification covered therein. The Company asked the Unions' representatives if they had any agreements in existence with short-haul carriers. Hodge, speaking on behalf of the Unions, stated that there was a contract with a contract carrier. This evolved into a discussion of the difference in the operations of the various types of carriers. This discussion led to a consideration of the manner in which road drivers were compensated. In connec- tion with this Hodge stated that the Unions had "quite a bit of work to do" to determine the manner in which road drivers and line-haul drivers were compensated. Hodge further stated in this connection that the membership of the Unions would accept 15 cents an hour from September 15 until the contract was agreed to and that upon agreement a new pay scale would go into effect. The Unions stated they would like to have a package counterproposal at the next meeting and would request that this proposal include one on wages and on all items upon which agreement had not been reached. Article XLIV was then discussed. This article, dealing with safety awards and bonuses, evoked the comment from Hemby that the Company did not know how the employees felt about this section. Hodge responded that the employees who benefited from them were in favor of them. He observed further that the dock employees did not benefit from those awards and bonuses and those who did not benefit did not like the concept. Woodward asked Hodge if he knew of any company that gave bonuses to drivers and nondrivers alike. Hodge stated that he did but again asserted that dock em- ployees at the Company were dissatisfied with the awards' plan of the Company. The meeting of January 30 ended with the parties agreeing tentatively to meet in mid-February. Woodward agreed to contact Hodge to confirm the mid-February date tentatively specified for the meeting. Woodward subsequently contacted Hodge by telephone and a date of February 19 was set for STANDARD TRUCKING CO. the next meeting . However, after subsequent com- munications between the parties the meeting oc- curred on February 26.32 (10) The rescheduling of the mid-February meeting By telegram dated February 17 the Company requested that the collective-bargaining meeting scheduled to be held on February 19 be postponed until February 26 due to weather conditions. The following day, February 18, the Union responded by telegram as follows: TEAMSTERS LOCAL 391 AGREED TO A RESCHEDULING OF NEGOTIATIONS FOR WEDNESDAY, FEB. 26, 1969 AT 10 A.M. HOWEVER WE WOULD REQUEST THAT YOU COME PREPARED TO MAKE YOUR FINAL OFFER AT THIS TIME WE WOULD REQUEST THAT 2 CONSECUTIVE DAYS BE SET UP FOR FEB. 26 AND 27 1969. Meetings were held between the parties on Februa- ry 26 and 27.E (11) The meeting of February 26 Woodward opened the February 26 meeting by introducing an insurance agent for the purpose of explaining the insurance aspects of the health and welfare program which the Company had devised. The program as outlined at the meeting by the agent included life insurance, accidental death and dismemberment, out-of-work benefits, and hospital and major medical coverage. The life insurance coverage under the plan extended only to the em- ployee, but the employee and his dependents were to be covered under the other features. A payroll deduction in the amount of $3 per month was to be made to finance the dependent coverage. Under the proposed plan the olicy would provide for no coordination of benef is as between it and any other insurance coverage which the employee might have. The provisions of the program outlined at the meeting provided for life insurance in the amount of $5,000; accidental death and dismemberment of $5,000; and out-of-work benefits in the amount of $60 per week to commence with the first day of any accident and the sixth day of any illness to a maximum of 15 weeks, except in case of a female employee who missed work due to pregnancy. In that event the maximum benefit would extend for 6 weeks. The program also provided for hospital room benefits of $35 per day for a maximum of 31 days; az The foregoing findings concerning the occurrence at the meeting of January 30 are based on a composite of the testimony of M 0 Hodge and Joseph Woodward Each testified credibly concerning some discussions which the other did not touch on in his testimony . However, I do credit the testimony of Joseph Woodward to the effect that at the January 30 meeting Hodge, on behalf of the Unions, again verbally proffered language which would modify the existing proposals of article XVIII pertaining to owner- operators Both Hodge and Woodward testified credibly that this language was offered at the meeting of January 29 and I consider it most unlikely 581 miscellaneous hospital expenses to a maximum of $300; surgical benefits to a maximum of $300; a flat rate for a pregnancy and delivery of $200; and X-ray and laboratory expenses to a maximum of $50. The major medical provisions of-the proposed plan contained coverage up to $15,000 with a $100 deductible feature for each 12-month period for each individual covered by the plan. After the presentation by the insurance agent, the Unions posed several questions concerning the plan. Blevins inquired what contributions the em- ployees made toward the Company's present in- surance plan and was informed that an employee with no dependents made no contribution but that an employee with one dependent contributed $1.77 per week while one with two or more dependents contributed $2.59 per week. These were con- tributed by way of payroll deduction. Additionally, Blevins inquired how the proposed out-of-work benefits compared with the out-of- work benefits presently in effect at the Company. Woodward responded that an employee with less than 5 years' service would draw 60 percent of his salary for 13 weeks; an employee with 5 or 10 years' service would draw 75 percent of his salary for 13 weeks; and that an employee with 10 or more years' service would draw full salary for 13 weeks. Next was the discussion of the health and welfare proposal terminated by the Unions inquiring if this plan represented the Company's counterproposal to the Unions' own proposal on this subject. The Company answered in the affirmative. The Unions stated that they would take this plan under con- sideration along with other cost items in the Unions' counterproposal which was to be submitted at the meeting. In due course at the meeting the Company's counterproposal was submitted to the Unions. It was a written document containing 30 pages and 45 articles. After the document was distributed, the Unions suggested that the parties take an extended lunch period to facilitate study of the proposal. It was agreed that the meeting would resume at 2 p.m. When the parties assembled at 2 p.m., Blevins, acting as spokesman for the Unions, stated that the Unions had reviewed the Company's proposal and had found that much of the language in the proposal with respect to those items upon which agreement had been reached had been changed. Blevins asserted that he had understood that the Company had been bargaining in good faith on the Unions' proposal but that, in his opinion, if the that the Unions would again the following day advance this change to which the Company had voiced no specific objection Rather , the Com- pany had asked for time to consult owner -operators concerning this matter and it is most improbable that the Unions would broach the subject again the following day as 1 find upon the credited testimony of Joseph Woodward and other evidence of record that severe weather conditions developed in the area of the Company 's operations during the week of February 17 with consequent disruptions in dispatches and deliveries 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company was insisting upon the language con- tained in its counterproposal the Company was not bargaining in good faith. Woodward informed Blevins, who had not been present at the previous meeting on January 30, that he understood that Hodge's request had been that the Company present a package proposal. Wood- ward stated that this is what the Company had done in presenting the counterproposal before them. Blevins again asserted that he understood that the Company had "no problem" with the provisions on which agreement had been reached and that the parties were in disagreement only on certain specific items. Blevins further observed that he was not aware that the Company was now requesting the parties to go back and "start all over again." The discussion of the parties concerning the vari- ance of the Company's proposal from that of the Unions' proposal led to a discussion of the pay scale as set forth in the Company's proposal. As this discussion evolved, Blevins again asserted that the Unions had been bargaining in good faith and had understood that the parties had reached agree- ment in areas other than economic. Blevins ob- served that the employees were "getting upset because nothing had been settled" and he again as- serted that the Unions had been bargaining in good faith. As the discussions progressed, Woodward in open meeting asked Hodge if he had not asked the Company at the previous meeting to present a package proposal. Hodge answered in the affirma- tive and observed that there must have been some misunderstanding on the part of the Company as to what the Unions were requesting. Thereupon, Woodward added that the Company had been bar- gaining in good faith and that the Company had un- derstood that the Unions wanted it to make a "package proposal." Blevins then suggested that the parties should go back to the original proposal made by the Unions and try to reach agreement on sections that were still open. Barbee agreed with Blevins . Woodward requested a brief opportunity for the Company to caucus and the caucus was held. After the Company had completed its caucus it requested that, because of disagreement within the company committee, the meeting be adjourned until the following morning. The Unions acceded to the Company's request. However, before the parties departed, Woodward stated that the Company was willing to put into ef- fect a 15-cent-per-hour wage increase at the Char- lotte and Greensboro terminals. Woodward stated that the effective date of the increase would be February 22. The Unions answered that the em- ployees felt strongly that the 15-cent-per-hour in- crease should be made retroactive to September 15. There followed some discussion concerning 3i The testimony of M 0 Hodge attributes to the Company a statement of willingness to accept the language of those items already agreed upon retroactivity. The Unions demanded retroactivity but this matter was not resolved. The meeting thereupon terminated. (12) The February 27 meeting The meeting commenced with Woodward advis- ing the Unions that the Company was willing to continue the discussions on the basis of the Unions' proposal and to endeavor to reach agreement on those items which were still open. Woodward stated, however, that the company representatives had both the interest of the Company and those of the employees to consider and "could not rush into the contract if both of these interests were not satisfied." The parties then proceeded to consider the open items contained in the Unions' original proposal.34 The parties then proceeded to a discussion of ar- ticle I, section 2, and article II. Blevins inquired if section 2, article I, was a "big issue" with the Com- pany and Woodward responded that it was impor- tant because it was potentially restrictive of the Company's ability to transfer ownership or to effect a possible merger. Blevins responded that the Unions were in a position to offer to withdraw that section of article I if the Company would grant arti- cle II pertaining to the checkoff of dues. Woodward responded that the Company would take this matter under consideration but further stated that the Company's position with respect to checkoff had not changed. Woodward then inquired if the Unions would consider extending the probationary period pro- vided for under section 4, article III, from 30 days to 90 days for regular personnel and 60 days for shop employees. Blevins observed that this section had already been agreed to but Woodward stated that the Company needed some relief as to the length of the probationary period. Blevins answered that if the Company would show some signs of giv- ing relief on other matters he felt that the Unions would, in return, give some relief. There was no disposition made of the Company's request. The parties then turned their attention to section 6, article III, which pertained to the coverage under the agreement of regular part-time employees. The Unions offered some additional language which had the effect of excluding regular part-time employees from the fringe benefits which would be included in any agreement reached. With the proffer of this amendment, the section, as amended, was agreed to by the parties. Article VI, maintenance of standards, was next considered. Woodward sought to elicit from the Unions an explanation of the items which this sec- tion was intended to encompass. Blevins answered by inquiring what the Company was most con- cerned about. Woodward, in reply, specified the except for "some minor changes " Hodge testified that the "minor chan- ges" referred to were not specified by the Company STANDARD TRUCKING CO. 583 maintenance of vending machines and applications of proceeds therefrom, and the continuation of the awards and safety pin programs. The Unions an- swered that the Company was expected to continue to furnish vending machines but that the disposition of the profits of the machines was a company prerogative. He stated further that, because the proceeds had been utilized for the benefit of em- ployees in previous years, this did not bind the Company to a similar disposition of the profits in the future. Moreover, the Unions informed Wood- ward that the awards and safety pin program was a matter for company decision and was not encom- passed within the section under consideration. As the discussion evolved it became clear that still at issue was whether or not the Company would furnish hand trucks to certain employees and would furnish shop uniforms and rain gear. Woodward stated that these matters would have to be con- sidered in conjunction with other economic items. However, Woodward again sought to elicit from the Unions a specification of items covered by the proposal. This was not achieved and the discussion then turned to article VII dealing with grievances and disputes. When this article was reached, Blevins asked the Company if it had a counterproposal with respect to arbitration. Woodward, speaking for the Com- pany, stated that the Company did not favor ar- bitration. Blevins responded that some form of ar- bitration would have to be included in the agree- ment or there could not be a no-strike, no-lockout clause . Woodward responded that the Company still had "one more avenue" to explore before giv- ing the Unions a final answer on this matter. Wood- ward did not specify the nature of the other ap- proach the Company was considering. The parties then turned to a consideration of article XVIII deal- ing with owner-operators. When this article was reached, Blevins inquired if the Company had had the opportunity to consult with the lease operators concerning the modified language which had been earlier offered with respect to this provision. Woodward responded that he had contacted all but one of the operators and desired time to accomplish this. This item was then passed.35 The subject of paid-for time , article XXXII, was discussed . The parties reached agreement on the language of section 1 , contingent upon the resolu- tion of certain issues pertaining to the other sec- tions of article XXXII. With respect to section 2 of this article , call-in time , Woodward stated that there was no area of substantial disagreement but that the Company desired to work out some dispatch rules. Blevins, speaking on behalf of the Unions, stated that the Unions would be happy to work out some mutually agreeable dispatch rules. With respect to the defini- tion of "sufficient time" as used in the section, the Company requested that the reference to 1 hour in the provision be modified to specify 2 hours. No agreement was reached on this section and the con- sideration of the parties then turned to section 3, entitled "Run Around." There was no agreement reached on this section and the subject of layovers, included in section 4 of the article, was next discussed. The Unions offered some modifying language to this proposal designed, in essence, as a quid pro quo for company acceptance of the guarantee of 8 hours' earning opportunity provided for in this sec- tion. Woodward stated that he saw no "large area of disagreement" pertaining to this matter. How- ever, after consulting with the terminal managers who were members of the bargaining committee, Woodward stated that the modification suggested by the Unions might cause some problems at one of the Company's terminals and that, in light of this, he would like to investigate the implications of the modification proposed. This item was passed over. Section 5 of article XXXII dealing with break- downs and impassable highways was next discussed. Woodward made certain inquiries regarding the ap- plication of the Unions' proposal and conferred with a member of his bargaining committee con- cerning any problems that this proposal might create. While this consultation was in progress Blevins studied the Company's written counter- proposal on this matter and offered the Company's proposal as a substitute for the Unions' proposal with certain liberalizing modifications. The Com- pany agreed to the substitution. The article on vacations was next discussed. With respect to section 1 thereof, the Unions offered to modify their proposal by extending to 18 years in lieu of 16 years employment period necessary to qualify for a 4-week vacation. The Company stated that it would take this proposal under considera- tion. Section 6 of the vacation article was considered next and the Unions offered an amendment to that section which had the effect of modifying the for- mula for the computation of vacation pay for road drivers. This section as amended was adopted. Article XXXIV, entitled "Holidays," was discussed next. The Unions offered an amendment to their original proposal to the effect that, in the first year of the contract, the employee's birthday would be observed as a holiday in lieu of Memorial Day in Charlotte and Easter Monday at the Green- sboro terminal. This proposal was made upon con- dition that one additional holiday be granted during the last year of this agreement. Woodward "Joseph Woodward testified , in effect , that at this meeting Blevins of- fered some amending language to this provision and that he, in turn, requested time to consult the owner -operators concerning this I am con- vinced that Woodward was in error in placing this action as having oc- curred at the February 27 meeting Accordingly , the findings with respect to the discussion of art XVII are based on the credited testimony of M 0 Hodge 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responded that the Company would take this proposal under consideration. Section 2 of the vacation article was next discussed and the Company stated that it desired to continue its present policy of paying straight time to employees who were required to work on a designated holiday. However, the Company offered to augment this by the payment of an additional 1 day's pay. The Unions proposed to modify their de- mand for double time on holidays to a request for compensation at 1-1/2 times straight pay. The Company agreed to take this proposal under ad- visement. The articles on health and welfare and pension fund were next considered. The Unions stated that they would agree to the Company's health and in- surance program as outlined at the previous meet- ing if, during the first year of the agreement, the contribution of the employee for dependent coverage be $2 instead of the $3 proposed; that during the second year of the agreement his con- tribution would be $1 per week; and during the third year of the agreement the Company would as- sume the entire cost of dependent coverage. Addi- tionally, the Unions included as elements of this offer the requirement that the Company continue its sick leave pay based on the percentage that was allowed under present practice; and that the Com- pany continue in effect its present profit-sharing plan. The proposal as outlined by Blevins also pro- vided that if this proposal was agreed to the Unions would withdraw their request for the central states health and welfare plan and for the central states pension plan. Woodward, speaking on behalf of the Company, stated that the Company would take this proposal under consideration. Article XLI, entitled "Workday-Workweek," was next discussed. The position of the Unions and the Company with respect to the definition of a work- day and a workweek remained unchanged. At this meeting, section 12, subparagraph (b), was withdrawn by the Unions. The parties next discussed the subject of wages. Speaking on behalf of the Unions, Blevins proposed that the Company pay 15 cents per hour to em- ployees for all hours worked between September 15, 1968, and the effective date of the contract. Blevins further proposed that the Company grant an additional 15-cent increase in wages upon the effective date of the agreement and that 15-cent- per-hour increases be granted in each of the remaining 2 years of the agreement. Further, with respect to wages, the Unions proposed that the mileage compensation of line- haul drivers be at the rate of 10 cents per mile dur- ing the first year of the agreement, 10-1/2 cents per mile during the second year, and 11 cents during the third year. The Unions' proposal also contained 38 Joseph Woodward testified that as the meeting adjourned Blevins ob- served that the Unions had applied for strike benefits and further observed the requirement that wild drivers be paid one- quarter cent per mile over and above that paid to line-haul drivers. No agreement was reached on the subject of wages and the meeting adjourned with an agree- ment between the parties that the next meeting would be held on March 13.31 (13) The meeting of March 13 The Unions opened the negotiations at this meet- ing by inquiring if the Company had any response to its suggestion that article I, section 2, dealing with transfer of company title and interest be withdrawn in return for the grant of a checkoff provision, as provided in article II. The Company responded that it would not accept this proposal at this time and stated its objections to a checkoff of dues. Woodward, speaking on behalf of the Com- pany, again stated the Company's position that there were already too many deductions from em- ployee paychecks and that such deductions had the effect of causing employee dissatisfaction. No agreement was reached on these matters and they were marked "hold." At this point in the meeting, Woodward, speak- ing on behalf of the Company, again mentioned the Company's desire for a longer probationary period than that provided in article III, section 4. Blevins, speaking on behalf of the Unions, again stated that the parties had reached agreement on this provision and again mentioned the Unions ' willingness to give relief on this item if the Company would do so on some other items. The Company stated it would consider the suggestion and the discussions turned to article VI, maintenance of standards. In discussing this article, the Company sought to have the items to be covered by this section specified in detail. The parties were not successful in this and the Company stated that because this was a "cost item" it would have to be considered along with any wage offer that the Company might make. The discussion then turned to article VII dealing with grievances. The discussion of the grievance article centered around the Company's objection to binding arbitra- tion. Woodward, speaking on behalf of the Com- pany, inquired if there was some manner in which the agreement could be reopened if a contract were reached and a provision of the agreement proved unworkable. He stated that he was inexperienced in collective-bargaining matters and was seeking guidance. Blevins, speaking on behalf of the Unions, stated that it would not be impossible to reopen the agreement but that it would be quite ir- regular. This led to a discussion of approaches other than a binding arbitration provision and Woodward broached the concept of mutual agree- that while he did not want to "threaten the company " the negotiations had "dragged out " STANDARD TRUCKING CO. ment as an alternative grievance settlement ap- proach . In response , Blevins stated that if the Com- pany was suggesting a "mutually -agreeable arbitra- tion " concept that he thought the parties could draft some appropriate provision . They endeavored to do so . For approximately the next hour, the parties worked on a draft of language . 37 The draft that resulted from this effort read as follows: If no majority decision is reached by the com- mittee, then the matter may be submitted to an impartial arbiter by a mutual agreement between the company and the Local Union within 10 days from the date of failure of the committee to reach a majority decision. If the parties cannot agree on arbitration , then either party may resort to any lawful economic recourse , including the right to strike or to lock out, notwithstanding any provisions to the contrary contained in this Agreement. Using the Unions ' proposal as the reference point, it was suggested that sections 6 and 7 of the Unions ' proposal be deleted and that the draft lan- guage be substituted therefor. After the draft had been completed Blevins inquired if the parties had agreement on this article and Woodward answered that he thought this would "probably be the answer " but that the Com- pany desired to be given time to consider the new language. The article was passed over. The subject of owner-operators , as contained in article XVIII, was next considered. In the discus- sion that transpired with respect to this provision, the Unions stated that in event of vacation or illness the owner could drive in place of his own employee driver. Moreover, regarding this provision, the Company again stated that it had not been able to discuss with all of its owner-operators the provi- sions pertaining to the subject of owner-operators which were before the parties . This article was passed. Consideration then turned to article XXXII, paid-for time . With respect to section 1 thereof the Company inquired as to the meaning of the terms "all time spent in the service of the Employer," and by "delay time." The Unions stated that a line-haul driver would receive his straight hourly compensa- tion for delays and, in addition , would be paid 50 cents for each trailer drop or each hookup. The Company responded that the 50-cent provision had not previously been mentioned by the Unions and that a short-line carrier could not withstand this level of compensation. The Company quoted statistical data contrasting the average freight bill of the Company with the average bill of long-line freight companies and interline companies. The data revealed that the average freight bill of the Company was substantially less than that of the " The testimony of M 0 Hodge is to the effect that both parties, work- ing in conjunction, contributed to the draft The testimony of Joseph Woodward is to the effect that the draft was the product solely of the union representatives While I am convinced that the Unions' representatives by 585 other types of carriers compared. The Company further stated that delays were an unavoidable at- tribute of the type of operation in which the Com- pany was involved. At this point the company representatives caucused. After the caucus had terminated the Unions of- fered a provision which would grant 30 minutes of free time, not to exceed 2 hours' total in any driver's tour of duty, as an alternative to their exist- ing proposal. The Company stated that as this was a cost item, it desired time in which to consider the proposal, and the discussion turned to section 4 of this article. With respect to this section Woodward stated that the Company had not had sufficient opportuni- ty to consider the cost implications of the modifica- tions proposed in this section. Accordingly, the parties passed this item. The next article discussed was article XXXIII dealing with vacations. The Company again stated its proposal that it would offer I week s vacation after 1 year's service; 2 weeks after 3 years' service; 3 weeks after 15 years' service; and 4 weeks after 20 years' service. The Unions inquired if this was the Company's final proposal on this matter and the Company stated that it was at this time. The article was marked "hold." Article XXXIV, dealing with holidays, was next considered. With respect to this article, the Com- pany stated that it was adhering to its proposal of six -paid holidays and that, under section 2 of the holiday article, it would offer a 6-hour minimum guarantee but that it would compensate employees working a holiday only at regular straight-time pay, plus 1 day's pay. This article was also marked "hold." The health and welfare and pension fund articles, articles XXXVII and XXXVIII, respectively, were next discussed. The Company proposed adoption of the Company's insurance plan as outlined at the previous meeting. In response thereto Blevins requested the Company's answer to the Unions' proposal that employee contributions to the health and welfare plan be phased out over the 3 years of the collective-bargaining agreement. The Company responded that it was its position at this time that the employees should continue to pay for depen- dent coverage. However, the Company stated that it would accept the Unions' proffer of the withdrawal of the central states southeastern pen- sion fund. The Unions declined this and the articles were passed over. Article XLI, workday-workweek, was the next subject of discussion between the parties. The Company stated its acceptance of the proposal that the workweek should consist of 5 consecutive days, but that it was the Company's proposal the work- reason of their greater experience in collective-bargaining methodology and terminology made the major contribution , I find that the draft was a product of discussions and redrafting to which the company representa- tives made some contribution 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day would consist of 9 consecutive hours and the workweek should be comprised of 45 hours. The Company further stated that it was its position that overtime compensation for dock and warehouse employees commence after 45 hours of work in any given workweek. The position of each party was unchanged with respect to section 5 pertaining to the use of over- time work in calculating the minimum guarantee for regular employees. Article XLI was passed over and the article deal- ing with wages was next discussed. The Unions requested that the Company respond to their wage proposal. Woodward answered that the Company would grant a 15-cent-per-hour wage increase effective on the date on which the agree- ment was signed . Woodward inquired if the Unions would accept a lump sum payment to cover retroactive pay. There followed a caucus and after the caucus had terminated the Unions stated that retroactive pay in the amount of $175.50 should be granted to each employee regularly employed by the Company since September 15, 1968. Blevins stated that this sum was calculated on the basis of 15 cents per hour, based on a 45-hour week beginning September 15, 1968. He calculated that 26 weeks had passed since the wage increase was granted. In response, the Company proposed a payment in the amount of $75 to cover retroactive pay for all employees who had been on the payroll on a con- tinuous basis since September 15, 1968. The Unions responded that the Company had granted September 15 wage increases at other terminals for a "definite reason" and stated, in substance, that the Company should be willing to treat the em- ployees at the Charlotte and Greensboro terminals in like manner. Woodward produced records which he stated, in substance, established that the wage increases tnat had been granted were in keeping with the pattern of past periodic wage increases. The Unions stated that the Company's wage proposals would be presented to the employees along with all other company proposals and posi- tions. However, Blevins stated that he hoped that future negotiating meetings would not be under "additional pressure." In conjunction with this statement, he made reference to the possibility of a strike vote being taken.38 The Company stated that its offer with respect to mileage rates for drivers remained the same. The parties then considered article XLV dealing with the length of the agreement. The position of the parties on this proposal remained unchanged and the meeting ended at this point.39 38 The testimony of M 0 Hodge makes no reference to any statements by the Unions that the Company's wage proposals would be presented to the membership or to the possibility of a strike vote However, the record reveals that, in point of fact , strike authorization was granted by the mem- bership of both locals a few days after the March 13 meeting In all of the circumstances , I credit the testimony of Joseph Woodward with respect to the mention of this potentiality at the March 13 meeting (14) The meeting of March 25 At the commencement of the March 25 meeting the Company submitted to the Unions a draft of proposed language on the subject of grievances and disputes. The language submitted read as follows: If the parties so agree, they may submit to ar- bitration any matter which they have been una- ble to resolve by means of the steps above pro- vided for. If and when it is agreed that there shall be such an arbitration, the arrangements therefore and the exact question or issue to be submitted to arbitration shall be at the same time determined and settled upon. The Unions accepted the Company's submission and stated that the Unions would take into con- sideration the Company's proposal. There was no further discussion with respect to this matter at this point in the meeting. Thereafter Blevins stated that a strike vote had been taken by the membership and Blevins in- formed the company representatives of the result of the vote. Woodward thereupon asked Blevins if the Unions were interested in bargaining or in striking. The parties then proceeded to a consideration of the proposals upon which no agreement had been reached. The first articles considered were those relating to transfer of company title and interest and to checkoff of dues. The position of each of the parties remained the same and consideration then turned to article IV, maintenance of standards. With respect to maintenance of standards Wood- ward acknowledged that the principal dispute per- tained to the obligation of the Company to furnish uniforms and rain gear, but Woodward stated that these were tied to the wage proposal and stated his desire to defer this item until decision had been reached with respect to wages. As a consequence the parties moved to a consideration of article VII, grievances and disputes. When this subject was reached, the Company submitted to the Unions a proposal which read as follows: If a grievart" or grievances have not been satisfactorily settled by the procedure provided for in this Article, the Union shall have the right to strike with respect to the same, but only upon the following conditions and subject to the following limitations. If the Union desires to strike with respect to such grievance or grievances, then within thirty (30) days after Step 3 of the aforesaid grievance procedure has been concluded, the Union shall give written notice that it intends "Joseph Woodward testified that during his participation in the negotia- tions, C W Hemby, who, as found, was hospitalized because of an ac- cident following the February 27 meeting, had stated with respect to the Company's preference for a I-year agreement that as the Company was en- gaging in its first bargaining experience it desired a I-year agreement so that "[it] would know what it had " STANDARD TRUCKING CO. 587 to strike with respect to such grievance or grievances. At the expiration of sixty (60) days from the giving of such written notice, and only at the expiration of such period, the Union may strike, and if it desires, also engage in lawful picketing, on account of the grievance or grievances, as to which notice has been given, but not for any other cause or reason. Once the Union has given notice of intention to strike, it may not give another such notice until the expiration of one hundred twenty (120) days from the date of the preceding notice. Except for such striking or picketing as is here provided for, the Union and the em- ployees shall adhere and conform to the provi- sions of the article of this Agreement, entitled "No Strikes-No Lockouts." In case the Union chooses not to strike at the end of a sixty (60) day notice period, as provided for above, then the grievance or grievances, as to which such notice of strike was given, shall be considered as settled and ended, and the same shall not thereafter be the subject of any strike or other action prohibited by the article of this Agreement, entitled "No Strikes-No Lockouts." Further the proposal contained a provision that, except as above provided, there would be no "con- certed action of any nature which has as its purpose or effect the interruption of or interference with the Company's operation." The Unions stated that the Company's proposal was not acceptable to the Unions as a substitute for the language which had been worked out on the matter of arbitration at the previous meeting. Moreover, the Unions stated that the Company's proposal was not acceptable to the Unions as a means of final settlement of grievances and disputes. Blevins stated, however, that the Unions would accept as a method of settling the issue with respect to arbitration the language which had been worked out at the previous meeting. Blevins inquired if the Company's proposals in- dicated their final position on the matter and Woodward stated that it was at this time. The article relating to the owner-operators was next considered. The Unions inquired if the Com- pany had completed its consultation with all lease operators concerning the language previously sub- mitted concerning this issue. The Company stated that it had but noted that there were a few modifi- cations which it desired to make in the draft. The Unions agreed to the modifications suggestion by the Company and during the bargaining session the parties went over the entire wording of the proposed section 1 and reached agreement with respect to it. Paid-for time was next considered and the Unions sought a statement of position from the Company with respect to its most recent proposal on delay time at the terminals. The Company stated that it did not now pay for terminal delays and would not do so. Section 3, dealing with run-around time, was discussed and it was the consensus of the parties that agreement could be reached on this item providing dispatch rules could be worked out. There followed some further discussion with respect to section 4 pertaining to layovers and the Company stated that it had checked out the problem deriving from proposed amendments of- fered by the Unions with respect to layovers and could not agree to amended language. As a consequence of the agreement entered into on section 4, article XXXII, drivers were guaran- teed an 8-hour earning opportunity at his hourly rate of pay. Under the Company's existing practice there existed no earning opportunity based on hourly pay in the event of layover and the driver's protection in this circumstance derived from the 1,500-mile-per-week guarantee accorded him by the Company. Article XXXIII relating to vacation was next con- sidered. The positions of the respective parties remained unchanged and they then moved on to the subject of holidays. Each of the parties adhered to its previous position regarding this matter and no agreement was reached. Article XXXVII dealing with health and welfare was then discussed. The Company again outlined its proposal relating to hospitalization, sick pay, salary continuation, and dependent coverage. It urged that its proposal with respect to these matters be accepted. However, the Unions stated that their position had not changed with respect to the health and welfare proposal and this matter was passed. Workday-workweek was next considered and the Company stated that its position with respect to this provision had not changed. Blevins inquired if the Company was stating its final position on this issue and Woodward stated that it was at this time. The parties then moved to a consideration of wages. The Unions asked if the Company had a counter- proposal with respect to wages and Woodward, speaking on behalf of the Company, stated that the Company was offering a 15-cent-per-hour increase for all hourly paid employees, effective on the date of the signing of the agreement; one-half-cent-per- mile increase for road drivers and wild drivers; and that it would not propose $100 lump sum payment in lieu of a 15-cent-per-hour retroactive pay in- crease requested by the Unions for Charlotte and Greensboro terminals' personnel. The Unions reiterated their demand for 26 weeks of retroactive pay at the rate of 15 cents per hour for each employee at the two terminals. No agree- ment was reached on the matter of wages and the discussion turned to the subject of safety awards. There was no agreement andl the parties next con- sidered the length of the agreement. The Company stated that it was still proposing a 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1-year agreement. At this point in the meeting the Unions requested time for a caucus. The Unions caucused privately and after the union personnel had returned to the meeting room Blevins stated that the Company's proposal on arbitration was not acceptable. He then read a written statement to the Company which had been prepared by the Unions' negotiating personnel during the caucus. In substance, the statement was to the effect that the Unions saw no need at this time to schedule a further meeting in that the parties had made little progress in the meeting which was then transpiring and in the meeting that had taken place theretofore. The statement addi- tionally asserted the Unions' readiness to meet at any time that the Company would be "in a position to show some movement." Thereupon Woodward requested that Blevins read the statement again and Blevins did so. Woodward answered that in his opinion the parties had made progress. However, Blevins replied that there had been "very little" progress in the recent meetings and that the at- titude of the Company in the last few bargaining sessions had indicated to him that the Company was not making an effort to reach an agreement. Woodward answered that the Company was "sor- ry" that the Unions felt that way and the meeting adjourned. (15) The Company's April 1 letter By letter dated April 1, the Company by letter in- formed the Unions of its desire to put into effect for unit employees a 15-cent-per-hour wage increase and the health and welfare plan as offered at negotiations. In pertinent part the letter also read as follows: As you realize the 15 cent per hour wage in- crease is already in effect for the employees at our Terminals which are not represented by your Union. The improved insurance benefits and coverage itemized above, we plan to put into effect, for the employees at the Terminals not represented by your Union, on May 1. It seems to us that the employees at the Charlotte and Greensboro Terminals deserve this wage increase and these improved in- surance benefits and coverages, and we would like to go ahead and make these effective for the employees at these two Terminals. These matters have been fully discussed and bargained between us. We do not know of anything further to be discussed on these sub- jects. Unless we hear from you to the contrary right away, we will go ahead and put the 15 cent per hour wage increase into effect beginning with Monday, April 7. The earliest we can get the improved insurance benefits and coverages into effect will be May 1, but we will likewise plan to do this unless we hear from you to the contrary. Our taking these steps will, of course, be without prejudice to your continuing to bar- gain, if you wish, for further wage increases and further improvements in insurance benefits and coverages - as on all other matters in- volved in our present negotiations. By telegram dated April 3 the Unions informed the Company that they considered the Company's proposal to constitute an unfair labor practice and to constitute further proof of the Company's inten- tion to undermine employees' support of the Unions and the Company's continued bad-faith bar- gaining. The telegram contained a demand for "im- mediate and continuous negotiations to begin on April 4, 1969." The Unions requested an im- mediate reply. By reply telegram dated April 3 the Company stated its willingness to negotiate further with the Unions concerning matters dealt within its letter of April 1 and all other matters. It suggested that a meeting be held on April 9. The Company stated. however, its doubt that continuous negotiations were either "practicable or possible." The Unions responded by telegram dated April 4 to the effect that the April 9 meeting date was ac- ceptable to them. (16) The meeting of April 9 As a result of the telegraphic exchanges between the parties, they met in collective-bargaining ses- sion on April 9. In attendance at the meeting was a representative of the Federal Mediation and Con- ciliation Service. The meeting commenced by Woodward stating that the Company desired to put into effect the 15-cent-per-hour wage increase and the insurance plan outlined in the Company's letter of April 1.40 Woodward stated that May I would be the anniversary date of the plan. Blevins stated that the Unions were opposed to the Company's proposed action and stated that it would constitute an unfair labor practice. For the benefit of the mediator the parties then listed the items upon which agreement had not been reached. They were: transfer of company title and interest; checkoff of dues; maintenance of stan- dards; grievances and disputes; paid-for time; vaca- tions; holidays; health and welfare; workday-work- week; wages; milegage and hourly rates for road drivers; safety awards and/or bonus; and termina- tion of the agreement. It was then suggested that each of the parties select the four items which it considered most im- portant in terms of reaching agreement. During the course of the meeting that followed the Unions 'As of the close of the instant hearing no 1969 wage increase had been granted employees at other terminals and the health and welfare plan had not been instituted STANDARD TRUCKING CO. 589 designated wages, which included paid-for time; mileage and hourly rates; health and welfare; grievances and disputes; and checkoff. The Com- pany listed wages; insurance; workday-workweek; and paid-for time. In designating for the benefit of the mediator the items that remained open, Woodward, on behalf of the Company, stated in summary form the position of the Company on each of these items as it had been articulated at previous meetings. During the day's meeting the mediator met separately with each of the parties. The separate discussion between the Company and the mediator lasted for approximately 40 minutes. During the course of the day's session both Woodward and Blevins stated their conviction that progress could be made on the items still open. At the close of the meeting it was agreed that the Federal mediator would set the date for the next meeting. Woodward stated that the Company would have its final proposal on open items ready by April 11. The meeting ended with agreement that the Company would contact the Federal mediator and he would then set a date for the next meeting. (17) The April 18 meeting The parties next met on April 18. Present at the meeting was the Federal mediator who had ar- ranged the meeting. The mediator commenced the meeting by asking the parties to state their respective positions con- cerning the items that were still open. The Unions responded by stating that their position had not changed with respect to any of the items. Wood- ward responded on behalf of the Company. He out- lined the Company's position with respect to each of the open items . In essence, the position of the Company as stated by Woodward at this meeting reflected the position the Company had taken with respect to each of the items when they were last discussed in negotiations between the parties. With respect to the health and welfare article, Woodward stated that the Company was prepared to put the new hospitalization insurance proposal in effect on May 1 and desired to incorporate the sick pay plan in accordance with the formula last presented by the Company. He stated that the Company would continue its present salary con- tinuation plan to which the employee made con- tributions. With respect to safety awards and/or bonuses, the Company stated that it would present the awards for calendar year 1968 but would discon- tinue the awards thereafter in light of the fact that all employees did not benefit from the awards. Woodward stated the Company would continue the presentation of safety pins and would consider a new award plan if one covering all employees could be devised. With respect to maintenance of standards, Woodward sought to have defined all items which would be encompassed within this article. Barbee stated that the parties would be "sitting around the table all day" endeavoring to list everything covered. After Woodward had completed the Company's summary of position, the mediator inquired if the Unions desired time to formulate their response. Blevins stated that he did not need time because he could not take the Company's offer back to his membership and recommend its approval. Barbee indicated his concurrence with Blevins. Thereupon the mediator requested the company committee to leave the meeting room to facilitate a caucus between the union representatives and himself. The Unions then caucused with the mediator. After the caucus had ended the Company returned to the conference room and Blevins stated that the Company's proposal was not acceptable but that the Unions would be available for further meetings . Barbee agreed. Woodward stated that the Company also would be available for further meetings and the meeting ended at this point. (18) The April22 strike The evening of March 16 the members of Locals 71 and 391 met in separate meetings at their respective meeting halls in Charlotte and Greens- boro. The meeting of Local 71 was attended by 129 members and 52 members attended the meet- ing of Local 391. The meeting of Local 71 was presided over by W. C. Barbee, president of the Lo- cal, and that of Local 391 was under the direction of Bruce Blevins, secretary-treasurer. At their respective meetings Barbee and Blevins discussed with the employees the progress of col- lective-bargaining negotiations. At the meeting of Local 391 M. O. Hodge gave a detailed description of the bargaining positions of the parties with respect to each of the articles contained in the Unions' proposal. A similar extensive explanation was undertaken at the meeting of Local 71 by Bar- bee. At each of the meetings there was considera- ble discussion from the floor concerning the collec- tive-bargaining negotiations. In due course, at the separate meetings, both Barbee and Blevins stated to the membership that, in substance, in their opinion the Company was not negotiating in good faith and had no intention of executing a collective- bargaining agreement. At each of the meetings ac- ceptance of the Company's proposal was put to a vote and was overwhelmingly defeated. Thereafter, at each of the meetings a strike authorization vote was taken and it carried by a wide majority. On April 22 picket lines were established at the Charlotte and Greensboro terminals. Pickets patrolled and carried picket signs with the legend: "Standard unfair to its employees on strike Team- sters Locals 71 and 391." 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (19) The telegram concerning wages On April 23 the Company sent the following tele- gram to the Unions: ON APRIL ONE WE WROTE YOU STATING OUR WILLINGNESS AND DESIRE TO GO AHEAD AND PUT A 15 CENT PER HOUR WAGE INCREASE INTO EFFECT AT CHARLOTTE AND GREENSBORO TERMINALS, WE POINTED OUT THAT THE MATTER HAD BEEN FULLY DISCUSSED AND BARGAINED BETWEEN US. NEVERTHELESS YOU OBJECTED TO OUR PUTTING THE INCREASE INTO EFFECT AND WE REFRAINED FROM DOING SO SINCE THEN WE HAVE HAD TWO MEETINGS IN WHICH THIS SUB- JECT HAS BEEN FURTHER BARGAINED AND DISCUSSED YOU DO NOT SEEM TO HAVE ANYTHING FURTHER TO SAY OR SUGGEST ON THIS SUBJECT. NEITHER DO WE. THEREFORE FOR THE REASON PREVIOUSLY EMPHASIZED WE WILL PROCEED TO GO AHEAD AND PUT THIS WAGE INCREASE INTO EFFECT THIS IS OF COURSE WITHOUT PREJUDICE TO OUR FURTHER BARGAINING ON ADDITIONAL WAGE INCREASE AS ON ALL OTHER MATTERS (20) The May 20 meeting The next meeting was held at the offices of the Federal Mediation and Conciliation Service on May 20. The parties gathered in the morning but met in separate offices. The mediator met first with the unions' negotiators who indicated a desire to modi- fy some of their proposals. Time was alloted to the Unions to accomplish this task and no negotiations between the parties transpired during the morning. The first meeting between the parties occurred after the lunch hour and during the afternoon. At the outset of the joint meeting, Woodward, responding to a question by Blevins, stated that the Company had no new position to present on any of the open items. Blevins stated that the Unions did have a new offer to make concerning these issues. Then, in open meeting, Blevins read to the com- pany representatives the Unions' new proposals stating that they were being offered as a "package." The Unions' proposal, as read by Blevins, was to the effect that the Unions would withdraw their request for transfer of company title and interest; their position with respect to checkoff remained unchanged; the only unresolved issue under the maintenance of standards proposal related to uniforms and rain gear; with respect to arbitration the Unions would accept the language worked out by the parties in prior negotiations; 1 hour of ter- minal delay could be incurred without cost to the Company provided no work was performed during the delay but that drivers would be compensated at their hourly rate for all time worked; the Unions would accept the Company's vacation proposal; the Unions would accept the six holidays that the Com- pany was presently observing provided that one ad- ditional holiday would be added in the third or final year of the agreement; compensation on holidays would be at one and one-half times the hourly rate, with the Unions abstaining from the guarantee for the minimum number of hours worked on a holiday; the Unions would accept the Company's health and welfare plan and out-of-work benefits as proposed by the Company at the meeting of April 18, provided employee contribution for benefit coverage be reduced to $1.50 per week for the life of the contract; the Unions would agree to a 9-hour day and 45-hour workweek, with overtime compen- sation after 9 hours in any 1 day or 45 hours in any I week for all hourly paid employees; all time worked by hourly rated on the sixth or seventh day would be compensated at one and one-half times straight-time rate; if the Company accepted section 11, article XLI, the workday-workweek provision, dealing with minimum weekly guarantees, the Unions would assure the Company against any "problem" as far as peddle runs were concerned; with respect to wages, the Unions would accept a flat sum of $200 for all employees who had been employed at the Charlotte and Greensboro ter- minals at the time the wage increase was placed in effect at other terminals; with respect to employees employed since September 15, 1968, a flat rate of $6 per week for all weeks they had worked would be accepted in lieu of retroactive compensation; the Company would increase wages 30 cents per hour effective with the date of the contract for the first year of the agreement; in the second year of the agreement wages would be increased an addi- tional 15 cents and in the third year of the agree- ment an additional 10 cents; the mileage rate for line drivers be 9-3/4 cents per mile the first year, 10-1/4 cents per mile the second year, and 10-3/4 cents per mile the third year; the mileage rate for wild drivers be 10 cents per mile the first year, 10- 1/2 cents per mile the second year, and 11 cents per mile the third year; hourly rates for drivers be $3.25 per hour the first year, $3.40 per hour the second year, and $3.50 per hour the third year; the Unions would draw their proposal for safety awards and bonuses; and the contract be for a 3-year term. After Blevins had completed his presentation of the Unions' proposals he inquired if the Company were willing to accept them. Woodward requested that the Company be allowed some additional time to consider the proposals, whereupon Blevins stated that the Unions desired to negotiate and requested that the Company do the same. Blevins requested that the parties meet the following day in an effort to resolve the issues that confronted them. Blevins inquired if Woodward had authority to negotiate on behalf of the Company and Woodward assured Blevins that he did. However he reiterated his desire to further study the proposals of the Unions. Blevins again requested that the parties meet again the following day and Woodward replied that it would be impossible for the committee to meet and asserted that the Company would be in touch with STANDARD TRUCKING CO. 591 either Blevins or the mediator to set a date for the next meeting. The meeting ended at this point.41 (21) The meeting of May 27 At the outset of this meeting, Blevins inquired if the Company would state its position with respect to the Unions' proposals presented at the previous meeting. Woodward responded by restating the Company's position with respect to each open item and by asserting that, as the Unions' proposals had been presented as a package proposal, the Com- pany could not accept it "as such at this time." Blevins stated that the Unions had been dealing in good faith and requested that the Company show a similar good faith in negotiations by considering the Unions' proposals and showing "movement" by giv- ing a counterproposal on any open item. Wood- ward responded that the Company had no counter- proposal.42 Blevins charged the Company with negotiating in "bad faith' and called the attention of the Company to the fact that unfair labor prac- tice charges had been filed with the Board. The meeting ended on this note with both Woodward and the Unions' representatives offering to meet again if there was a change in the position of either party. There had been no subsequent collective-bar- gaining negotiations and no exchange of proposals or counterproposals. C. Analysis and Summary The Unions' effort to consummate their initial collective-bargaining agreement with the Company on behalf of the employee complements at the Charlotte and Greensboro terminals began on Oc- tober 15. At that meeting, for the first time, the Company was presented with the national and bi- state agreements in effect in a segment of the trucking industry represented by the Teamsters. While a degree of sophistication in labor relations contractual matters may reasonably be imputed to C. W. Hemby, deriving from his long managerial experience in the trucking industry, Joseph, Wood- ward, and the respective terminal managers, R. H. McKinney, and George Phillips, were not ex- perienced negotiators. Thus, the meetings of Oc- tober 15 and 31 were exploratory meetings. The Unions tested the receptivity of the Company to the national agreements, as applied to the Company's operations, and the Company sought explanations as to the meaning, scope, and impact of certain provisions of the national agreement. From the first two meetings certain principal guidelines emerged. By reason of the short-haul nature and limited geo- graphic area of the Company's operations, the Company declared the national agreement inap- propriate as instruments for controlling the labor relations of the Company and the Unions; the Com- pany articulated its opposition to a limitation upon its freedom to transfer company title and interest; seniority and its application in job bidding, trans- fers etc.. was disclosed as being a principal con- cern of the parties; the -Unions announced tneir desire for an agreement of 3 years' duration; and a proposal applicable to the Company's operations was to be prepared and submitted by the Unions. Thus, it was at the third meeting of November 19 that attention turned to specific Unions' proposals, reduced to writing in one comprehensive docu- ment. The proposal submitted by the Unions at the third meeting was comprised of 45 separate articles and numerous sections and subsections. The 15 meetings which followed were, for the most part, devoted to a consideration of the Unions' proposal under an agreed-to procedure whereby each sec- tion and article was considered separately. By the end of the fourth meeting, which trans- pired on November 20, the preamble and 22 arti- cles of the Unions' proposal had been agreed to in toto and with a minimum of discussion. These dealt with the following subjects: Protection of rights Bonds Passengers Compensation claims Military clause Equipment, accidents, reports Posting of agreement Union cooperation Union activities Separation of employment Inspection privileges Separability and savings clause Timesheets and timeclocks Emergency reopening Piggy-back, barge, etc. Employees bail Leave of absence Discharge, suspension, or other disciplinary ac- tion Examination and identification fees Pay period Funeral leave Jury duty In addition, by the end of the November 20 meeting, the parties had reached agreement on 16 separate sections encompassed within 10 separate " M 0 Hodge testified that in response to Blevins' inquiry as to the Company's position on the disputed issues, Woodward stated that the Company's "position had not changed since April 18, 1969 " I do not credit Hodge in this regard but find, rather, that Woodward stated merely that the company committee desired time in which to study the Unions' proposals It is most unlikely that after being presented with the Unions' proposals Woodward would have, in one breath , stated an adamant posi- tion on the part of the Company, and in the next breath articulated a request for time in which to consider the Unions ' proposals °R I credit the testimony of M 0 Hodge to the effect that after the Com- pany rejected the Unions ' package proposal, Blevins invited counter- proposals on any open item or items Woodward testified that at this point in the meeting there was discussion but he could not recall its content 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD articles other than those described above, upon which the parties had not been able to reach total agreement. The sections agreed to by the end of the fourth meeting included the following subject matter : The standard recognition clause ; extension to the Unions of equal opportunity to provide suita- ble applicants for employment; acceptance of seniority as a prevailing practice ; a delineation of those employee actions which would terminate the accrual of seniority; application of seniority in the event of the Company's absorption of or merger with another common carrier; protection of wage minimums in the event of absorption or merger; preclusion of direct contracts between the Com- pany and employees; protection of Unions ' bargain- ing rights over rates of compensation for work per- formed in connection with new equipment or operations not covered by the agreement; commit- ment to use grievance procedures of the agreement as a precondition to strikes , lockouts, or other legal proceedings ; definition of Unions ' responsibility for the acts of their authorized agents ; a limitation upon the Unions' legal liability in the event of unauthorized strikes, slowdowns, walkouts, etc.; discharge and disciplinary rights of the Company in the event of the aforesaid employee unauthorized actions; a picket line protection clause; a hot cargo clause; a struck goods clause ; a proscription upon mandatory purchase of certain specified equipment as a condition of employment ; physical and sanitary standards for company-furnished lodging; and com- pensation in lieu of company-furnished lodging. In the course of the five meetings that followed, through bargaining table discussions , the parties refined their respective positions on some issues, remained essentially adamant on others, and reached accord on many. Thus, after completion of the January 30 bargaining session-the ninth between the parties and the seventh at which discussion and consideration had centered around the comprehensive written proposal of the Unions-the parties had failed to reach agreement in the following principal bargaining areas : Transfer of company title or interest ; checkoff of dues; maintenance of standards; arbitration ; owner- operators ; compensation for delays under the arti- cle dealing with paid-for time ; vacations ; holidays; health and welfare; pension fund ; workday-work- week; wages (local and maintenance ); mileage and hourly rates for road drivers; safety awards and/or bonuses; and termination of the agreement. Additionally, at the conclusion of the January 30 meeting there remained unresolved subsidiary is- sues related, to be certain , to the principal issues which still separated the parties , but susceptible, nonetheless , of separate consideration and resolu- tion. Thus, still open at the end of the January 30 meeting were provisions relating to the coverage under the agreement of part-time employees and extension of fringe benefits to them ; the right of the respective parties to the contract to resort to "law- ful economic recourse" in the event of their inabili- ty to reach agreement with respect to the subject of workweek reduction under the maintenance of standards article ; call-in time, runaround time, layovers , breakdowns , and impassable highways as elements of paid-for time ; a formula for computing road drivers' vacaction and holiday pay; and premi- um pay for casual employees. During the four meetings that followed , February 26 and 27 and March 13 and 25, respectively, the parties reached agreement on the coverage of part- time employees under the agreement ; pay for layovers and delays resulting from breakdowns and impassable highways under the paid-for time article; a formula for computing vacation pay for road drivers; and terms of an owner-operator article. They achieved final agreement on no other issue during this series of meetings ; and the Company's position with respect to most of the unresolved is- sues remained unchanged . However, the Company, at the February 26 meeting , proposed a com- prehensive health and welfare proposal containing life insurance , accident, out-of-work, hospitaliza- tion, surgical, and major medical coverage and benefits; stated its willingness to make immediately effective a 15-cent-per-hour wage increase for all hourly rated employees at the Charlotte and Greens- boro terminals ; and indicated acceptance of the call-in time article , conditioned upon fashioning of dispatch rules . At the February 27 meeting, the Company modified its position with respect to com- pensating employees for work performed on holidays by augmenting its offer of straight-time compensation with an offer of 1 day's additional pay. Further, at the March 13 meeting the Com- pany abandoned its objection to all forms of ar- bitration and asserted its desire to explore the con- cept of "mutually binding arbitration." At the March 13 meeting also the Company accepted, in principal, the Unions ' demand for retroactive pay increases for hourly rated employees at the Char- lotte and Greensboro terminals . Then, at the March 25 meeting the Company offered a proposal dealing with arbitration and a modified pay proposal cover- ing hourly rated employees and drivers . No further agreement was reached on substantive issues at the subsequent April 9 or 18 meetings. Thus , on April 22, when picket lines were established and the strike commenced, principal bargaining issues still unresolved related to transfer ofgcompany title or interest; checkoff of dues ; maintenance of stand- ards ; arbitration; compensation for delays under the article dealing with paid -for time ; vacations; holidays; health and welfare; pension fund; work- day-workweek ; wages (local and maintenance); mileage and hourly rates for road drivers; safety awards and/or bonuses; and termination of the agreement. The record fully supports the General Counsel to the effect that throughout the negotiations the posi- tion of the Company continued unchanged with respect to the issues of transfer of company title and interest, checkoff of dues , and termination of STANDARD TRUCKING CO. 593 the agreement. It remained essentially fixed also on the workweek issue . While the Company took in- itiatives in endeavoring to distill proposals more ex- plicit than those of the Unions on the subjects of maintenance of standards and safety awards and bonuses, the Company's position at the close of negotiations was not discernibly different on these latter two issues than at the beginning. In discussing the Unions' vacation and holiday proposals, the Company revealed a flexibility with respect to re- lated questions of eligibility and formula for com- putation of compensation, and at the meeting of January 29 countered with a proposal for 4 weeks' vacation after 20 years' service. This was a depar- ture from existing company vacation allowances. Throughout the negotiations the Company adhered to its preference for sx paid holidays. The paid-for time article was one extensively discussed and one to which the Company gave tentative approval. However, resolution of this issue was rendered more precarious by the Unions' insistence, ex- plicitly manifested for the first time at the March 13 meeting, upon compensation for driver delays and for trailer hookups and drops. No material progress was made on this issue after the March 13 meeting. To the Unions' proposals on arbitration, health and welfare , pension funds, wages (local and main- tenance ), and mileage and hour rates for drivers, the Company responded with counterproposals of its own . While the Company's counterproposal on arbitration is attacked as revealing company bad faith, the General Counsel makes no contention that the content or substance of the other company counterproposals on health and welfare and on wages were so vapid or lacking in substance as to be further indicative of bad faith. The General Counsel contends, in substance, the unlawful nature of the Company's approach to its bargaining obligations became clearly discernible at the point of the February 26 meeting-the 10th between the parties-at which time the Company clearly disclosed its technique of adhering tena- ciously to the "status quo" on key issues such as ar- bitration, wages, checkoff, no-strike clause, the length of the agreement, vacations, and holidays while approving proposals inconsequential, or rela- tively so, in their impact. Moreover, the General Counsel attacks the Company's wage prop osal, its arbitration proposal, and its acceptance ofthe call- in time article subject to effectuation of dispatch rules as strategems dissembling in nature and tacti- cally designed to undermine the Unions. However, the Company contends, in substance, that it at all times bargained in good faith and that, contrary to the General Counsel, during the course of the first 10 meetings, and thereafter, the Com- pany in good faith adopted proposals of the Unions, many of which modified existing company practice and constituted strictures upon managerial freedom. The record supports the Company's contention that during the course of negotiations the Company accepted the following union proposals which had the effect of limiting managerial freedom and modi- fying existing company practice: Interchange of drivers; use of supervisors in performance of unit work; probationary period; hourly rates for part- time employees; separate seniority lists for main- tenance and driving personnel; annual bidding of runs; reporting period in the recall of laid-off em- ployees; wage rate determination for operators of new equipment; hot cargo, struck goods, and picket line protection; 90-day qualification period for bonding; payment of dischargees; leave of absence; formula for computing vacation entitlement; pro rata vacation pay for employees terminated prior to 1 year's employment; formula for computing road drivers' vacation pay; compensation of employees assigned to work tasks other than their own; 4-hour work guarantee for called-back employees; em- ployee job-following rights in the event of transfer of operations or opening of a new terminal; and an 8-hour earning opportunity at hourly rate for road drivers in lieu of their weekly mileage guarantee. The impact in terms of cost or limitations upon managerial freedom, or both, was with respect to some of these items discernibly slight. Thus, with respect to the interchange of drivers, the use of su- pervisors in the performance of unit work, and the payment of dischargees, the parties reached a side agreement not spelled out in the contractual lan- guage upon which they reached a meeting of the minds, which went far in minimizing their stric- tures. Further, the immediate impact of the provi- sions governing the wage rate determinations for operators of new equipment introduced into the Company's operation and the keeping of separate seniority lists for maintenance and driving person- nel was slight. While the 90-day qualification period for bonding extended the time increment al- lowed under existing company practice, thus in- creasing to a degree the interim risks to the Com- pany in employing an unbonded employee, protec- tion against the employment of untrustworthy per- sonnel was still accorded the Company by the man- datory bonding provision ultimately adopted. However, other items, such as the requirement for the annual bidding of runs; wage guarantees to called-back employees; formulas for the computa- tion of employee compensation in the event of in- terchange or for vacation entitlement and qualifica- tion; and the recognition of employee job-following rights in the event of transfer of operations or open- ing of new terminal were matters which had signifi- cant discernible and immediate cost and opera- tional impact upon the Company. Further, what- ever the individual effect, either immediate or potential, of any of the aforesaid agreed-to items, the total cumulative impact was both predictable and substantial. However, the Company's willingness to reach agreement on these items, as well as on items which 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wrought no change in company practice, must be evaluated in light of the General Counsel's conten- tion that this apparent willingness to reach accord on contractual proposals was merely window dressing for the Company's predetermination to frustrate the achievement of a meaningful collec- tive-bargaining agreement by refusing to agree to terms of fundamental importance to the Unions and to unit employees. D. Conclusions 1. Supervisory pronouncements and statements It is the theory of the General Counsel that the Respondent entered negotiations with a fixed deter- mination not to reach an agreement with the Unions. In this regard, the General Counsel con- tends that the Respondent failed to accept the results of the elections held in the fall of 1968 which led to the certification of the Unions and after the elections "aggressively continued to cam- paign" against the Unions "in order to destroy [them]." The background evidence of record reveals op- position on the part of the Company to the unionization of its Greensboro and Charlotte ter- minals . But the preelection correspondence, in- troduced into evidence by the Charging Party, is not alone sufficient to establish a fixed determina- tion on the part of the Company not to treat with the Unions should the elections, as they sub- sequently did, confer bargaining rights upon the Unions. However, the General Counsel and the Charging Party contend that the last paragraph of the preelection propaganda above set forth con- tains significant portents of bad faith on the part of the Company and contains an accurate forecast of subsequent company attitudes and actions. To the extent that actions of Respondent's agents away from the bargaining table may reflect the Company's intention with respect to the ultimate consummation of a collective-bargaining agreement with the Unions, this thesis obtains a modicum of support from the preelection "no-contract" edict of Respondent's chairman of the board, T. E. Hemby, confided to Assistant Terminal Manager Otho Lewis. However, the General Counsel's theory is not materially aided by the separate assertions made by Harry Ezelle to employees Lewis and Saunders to the effect that the company would not sign a collective-bargaining agreement. The record suggests that Ezelle was a low echelon supervisor and it strains matters to suppose that top manage- ment, engaged in the serious business of collective bargaining, would confide its bargaining intentions to a run-of-the-mill supervisor such as Ezelle. The record establishes that C. W. Hemby and the ter- minal managers abstained from predicting the out- come of negotiations, and if Ezelle claimed prescience with respect to company intentions, either in the postelection period of 1968 when he spoke with employee Lewis, or in the poststrike period of September 1969 when he spoke with Saunders, I am convinced he embarked upon an ex- cursion of his own and repeated rumor. I am con- vinced, however, that his knowledge of company intentions was neither direct nor substantial. Moreover, the record is insufficient to establish whether Supervisors Ezelle and Shepherd were speaking with any gloss of authority when, im- mediately after the election in the fall of 1968, they separately told employees that they had lost a wage increase by voting for the union. The similarity of the separate predictions of the two supervisors sug- gests that they may have been giving currency to sentiments of management and thus their state- ments remain evidentiary fragments to be given weight in determining whether the Company ap- proached negotiations with an open mind or with an intention to punish employees for their selection of the Unions as their bargaining representatives. Beyond this, I find that the other complaint allega- tions of supervisory comment or utterances are not supported by credited evidence of record. I find, contrary to the General Counsel, that those alleged as transpiring within the Section 10(b) limitations period violate no provision of the Act. 2. Alleged efforts to denigrate and impede But the General Counsel further contends that, in a manner closely related to these pronouncements and prognostications of management and supervi- sion, the Company's bad faith is revealed by certain stratagems employed propitiously in the course of bargaining. It is the General Counsel's contention that the Company's use of the wage issue was one such device. It is to be remembered that all hourly paid em- ployees of the Company, save those represented by the Unions, had received a 15-cent-per-hour wage increase on September 15, 1968. Solely because of the pendancy of the election and certification mat- ters the Company, according to its own explana- tion, abstained from effectuating the raises at the Greensboro and Charlotte terminals represented by the Unions. As found, during negotiations the Unions demanded full wage retroactivity to Sep- tember 15 in the form of a lump-sum payment to each unit employee. The Company at first opposed such a payment but at the meetings of March 13 and 25 its representatives proposed retroactive pay- ments in sums less than demanded by the Unions as essential to reflect true retroactivity to September 15. Then, on April 1, in writing, the Company proposed to put into effect a 15-cent wage increase without prejudice to continuing bargaining on the subject of wages. The Unions objected and the Company abstained. No progress was made on this issue during the course of the two meetings that fol- lowed and the Company on April23 telegraphically advised the Unions that, in the circumstances and STANDARD TRUCKING CO. without prejudice to further bargaining on wages, it intended to make immediately effective a 15-cent wage increase for unit employees. It ultimately did so in May, but the increases did not include a lump- sum payment of $100 to each employee, the amount which the company at the March 25 meet- ing had offered as retroactive compensation. In its April 23 telegram the Company did not, in terms, declare negotiations at an impasse but it noted the lack of progress on the issue in the two meetings which had transpired after April 1, and observed that neither She appeared to have any further sug- gestions on the subject. The General Counsel does not contend that the wage increases were independently violative of the Act but he asserts that they were an integral ele- ment of a plan calculated to disparage and denigrate the Unions. In short, contends, the General Counsel, the wage action of the Company reveals its bad-faith approach to bargaining. Unlike the Alba-Waldensian case, 167 NLRB 695, to which analogy is drawn by the General Counsel, this is not a case wherein, during negotiations, a multiplant employer grants wage increases to em- ployees at unorganized plants while insisting upon the status quo for organized employees.93 Rather, the employees at the unorganized terminals of the Respondent herein had been beneficiaries of a periodic wage increase, effectuated in normal course, but at a time very proximate to the certifi- cation of the Unions. The Respondent's reason for abstaining in a similar grant to unit employees was its fear of unfair labor practice charges. As negotia- tions proceeded, and the Unions insisted upon pari- ty for unit employees in the form of retroactive pay, the legal justification for continued abstinence by the Company receded. It was in this factual context that, following notice and discussion, the Company effectuated the increase, but without foreclosing further discussion on wages. The record establishes that unit employees had rejected a proffer of less than full retroactivity submitted to them by their bargaining representatives as part of a package Proposal from management. But following this re- the Company's proffer and wage action came. As I view the matter, effectuation of im- mediate wage increases sufficient to bring about present and prospective parity with unorganized em- ployees, without jeopardy to the principal and/or ultimate resolution of the retroactivity question, is an action implying no disparagement of the collec- tive-bargaining process or representative, and should be welcomed by the Unions.44 It would strain matters to conclude that either employees or union representatives were deluded into thinking that the grant of immediate wage increases 4s The wage increases at the unorganized plants in Alba-Waldensian oc- curred 6 months after negotiations commenced a See N L R B v Crompton-Highland Mills, Inc , 337 U S 217, 224-225 4S The issue of employee contributions to the plan was basic and not col- lateral and thus distinguishable from the retroactive wage issue which was 595 foredoomed retroactive payment. I find this action not to be indicative of bad faith on the part of the Company. Similarly I perceive no departure from the statutory mandate in the Company's notifica- tion to the Unions of its desire, not carried to frui- tion, to effectuate systemwide the health and wel- fare plan it had offered to the Unions at the bar- gaining table. Viewed from the vantage point of April 1, when the notification was given, the posi- tion of the parties with respect to the health and welfare issue had hardened and they had recorded no progress over a period of three bargaining ses- sions on the question of a noncontributory premi- um feature. On this issue , basic to the plan proposed by the Company, the parties were in fun- damental disagreement and, thus, effectively so with respect to the entire health and welfare issue.45 The March 25 meeting, the last prior to the Com- pany's April1 notification, terminated with no further meetings scheduled and with the resump- tion of negotiations in abeyance. While the Com- pany's April1 written communication to the Unions did not, in terms, assert a bargaining im- passe it defined, essentially in impasse terms, the status of bargaining with respect to the health and welfare issue. In its decision in Taft Broadcasting Co., WDAF AF-FM TV, 163 NLRB 475, 478, the Board stated: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is dis- agreement, the contemporaneous understand- ing of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining ex- isted. The existence of an impasse with respect to one bargaining issue is not precluded by the fact that no impasse existed with respect to others. 46 In sustain- ing the Board's order in Empire Terminal, the court observed, also, that the finding of impasse on a sin- gle bargaining issue is not negated by the fact that the parties subsequently resumed negotiations on issues other than that which was subject to impasse. Further, the existence of an impasse is not dispelled by the fact that following a strike or the passage of time one of the parties moderates its preimpasse position with respect to the issue.47 In the instant case, the Unions adhered to their opposition to any employee premium contribution as a facet of the company-proposed health and wel- fare plan. The Unions reiterated this position at the meeting of April 9 and at the meeting of April 18, on which occasion the Company again specifically susceptible of resolution separately or as part of the ultimate wage package 48 See Empire Terminal Warehouse Company, 151 NLRB 1359, enfd sub nom Dallas General Drivers, Local 745, Teamsters v N L R B, 355 F.2d 842 (CADC) 47 See Mission Manufacturing Company, 128 NLRB 275. 427-258 O-LT - 74 - 39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposed giving companywide effect to its health and welfare plan. In all the circumstances, I find that an impasse existed on the issue of health and welfare on and after April 1 and that at that point in time the Company was free to make effective at the Charlotte and Greensboro terminals the plan which it had submitted to the Unions and which the Unions had rejected . Because the effective date of the plan at unorganized terminals was to coincide with the anniversary date of the existing plan, its ef- fectuation at those terminals imbued it with no in- herent illegality. While its effectuation at unor- ganized terminals might well have inferred an at- tribution to company beneficence, the Unions were not foreclosed from heralding the plan as a product of the bargaining process. It evolved from union-initiated bargaining and was an improvement over existing counterpart benefits. It carried no hallmark of disparagement either to the Unions or to the bargaining process. In the circumstances, and as the Company did not give effect to the plan, I find no evidence of bad faith either in the Com- pany's April 1 written notification of intent or its oral bargaining table advisories that followed on April 9 and 18, respectively. Further, as I view the record, there are no other significant manifestations of bad faith arising from tactical as contrasted to substantive bargaining con- duct of the Company. The evidence reveals a failure of the Company to come forward with a compilation of dispatch procedures, but this failure is not revealed as having contributed to the inability of the parties to reach agreement on the elements of the paid-for time provision to which the procedures related. Woodward credibly testified that procedures had not been codified and that managerial knowledge of the subject was diffused. The record supports his assertion that definitive, wide-ranging dispatch rules were nowhere extant in the Company. That dispatch rules were to be fashioned is established but the Unions did not press the matter and it appears that the codification of them was to take place extracontractually. It is this latter feature that distinguishes company insistence upon a cataloguing of items inclusive within the maintenance of standards provision. The provision, as contained in the Unions' proposal, was one with potential broad impact upon the entire range of existing working conditions and carried a potential cost impact of significance. During negotiations the Company strived unsuccessfully to achieve a declaration reasonably descriptive of the provisions' intended reach. The generalized oral as- surances given by the Unions' negotiators at the bargaining table to the effect that the number of items at issue were few did not materially alter its potential scope. The Company was striving for a delineation of issues binding, for the term of the 48 N L R B v Herman Sausage Company, Inc, 275 F 2d 229, 231- 232 (C A. 5). 's N L R B. v American National Insurance Co , 343 U S. 395, 401-402 contract, and not vulnerable to the frailty of memory or ad hoc claim on the part of either party to the contract. Consequently, the Company's refusal to accede on the maintenance of standard issue and its insistence upon a definitive declaration of the scope is not viewed as indicative of bad faith. 3. The separate allegations However, it is the General Counsel's principal contention that, notwithstanding any of the forego- ing, the Company's bargaining table conduct on substantive issues of fundamental importance fell short of the mandate of the Act. The duty to bargain defined by Section 8(d) of the Act does not compel either party to agree to a proposal or to make a concession. The obligation of the employer to bargain in good faith does not require the yielding of positions fairly maintained nor does it permit the Board, under the guise of finding of bad faith, to require the employer to con- tract in a way the Board might deem proper .48 But, while the Act does not compel any agreement and does not permit Board or court regulation of the substantive terms governing wages, hours, and working conditions which are incorporated in agreement, performance of the duty to bargain as defined in Section 8(d) requires more than a willingness to enter upon a sterile discussion of union-management differences.49 The Board is em- powered to consider in light of all the circum- stances whether a counterproposal was made, or a union proposal rejected, in goon faith or simply to frustrate bargaining.50 "The ultimate issue [of] whether the Company conducted its bargaining negotiations in good faith involves a finding of mo- tive or state of mind which can only be inferred from circumstantial evidence" and is to be inferred from the totality of its conduct.S1 a. Failure to adequately consider union proposals I find little support in the record for the conten- tion of the General Counsel that Respondent inde- pendently violated Section 8(a)(5) of the Act by failing adequately to consider the proposals of the Unions. The refusal of the Company to agree to separate proposals of fundamental importance of- fered by the Unions does not reveal a paucity of consideration on the part of the Company. Nor is this shown by the refusal of the Company to modify its position in any perceptible manner during the negotiations on such issues as transfer of company title and interest, checkoff, maintenance of stan- dards, holidays, workweek, and termination of the agreement. Rather, the record reveals that the Company responded with reasoned explanation and did so regarding these issues as with respect to all S0 Capitol Aviation , Inc, 152 NLRB 745, 752, 753 b1 N L.R B. v Reed c Prince Manufacturing Company, 205 F 2d 131, 139-140(C.A 1), cert. denied 346U S 887 STANDARD of the 14 principal issues which separated the parties at the time of the April 22 strike and thereafter until negotiations ceased on May 27. This attribute of reasoned response substantially negates the inference that the Company's approach to bargaining was perfunctory. While it is clear the Company, as would be anticipated, entered negotiations with bargaining objectives formulated, this formulation was not revealed to have been so stolid as to be closed to instructive initiatives on the part of the Unions. To the contrary, the record shows a willingness on the part of the Company to discuss and respond to each item proposed by the Unions, with no foreclosure of opportunity. Moreover, the evidence establishes that the questions raised by the Company concerning an array of issues which were resolved, many at the ex- pense of change in company practice or policies, were cogent and substantively important. Indeed, the list of items agreed to and the detriment in- curred by the Company in acceding to some proposals which changed company policies and practices forecloses any finding that the Company's approach to bargaining was one of basic in- transigence . The Company's tacit rejection during negotiations of the draft proposal on "mutually binding arbitration" and of the May 20 "package proposal of the Unions, does not establish a failure of good-faith attentativeness to union proposals. These rejections were not preemptory but came after passage of time sufficient to accord opportuni- ty for reasoned appraisal. If the Company's response in these instances were not, as the General Counsel contends, what the Act required, it may not be found, on this record, that the deficiencies were founded in a failure on the part of the Com- pany to sufficiently evaluate the substantive merits of the proposals. I shall thus dismiss the complaint insofar as it alleges a separate violation of the Act based on this alleged deficiency in Respondent's bargaining conduct. b. The alleged failure to make adequate counterproposals In like manner the record evidence requires dismissal of the complaint insofar as it alleges a separate violation of the Act flowing from the failure of the Company to offer adequate counter- proposals. The evidence reveals that throughout the negotiations , the Unions , seeking success in their pilot bargaining effort with the Company, manifested significant resilience on a variety of matters to which the Company voiced opposition. This resilience was not entirely matched by the Company, but as found, in the ultimate, the Com- pany acceded in a variety of bargaining areas which changed company policy and practice. It advanced detailed written counterproposals only with respect to health and welfare and arbitration, and on the occasion of its proffer of the summarily rejected "package" counterproposal. TRUCKING CO. 597 But because the Unions' proposed agreement was being utilized as the basis of discussion, it is misleading to gauge the Company's response to the Unions' bargaining initiative solely on the basis of these few written proposals of the Company. Through bargaining table discussion and proffer the Company made affirmative proposals covering va- cations, holidays, wages, mileage rates for drivers, and safety awards and bonuses. It explored in detail avenues of agreement on maintenance of standards and the workweek issue. It defined its position with respect to transfer of company title and interest, checkoff, and termination of agreement and, although these positions were unacceptable to the Unions, the Company advanced reasons to support its position . In a literal sense , the bargaining posi- tion of the Company may be characterized as firm, but firmness of a bargaining position does not con- stitute bad faith. Here, unlike the employer in N.L.R.B. v. Patent Trader, Inc., 415 F.2d 190 (C.A. 2), the Company sought no avoidance of the issues dealing with the fundamental terms and conditions of employment. Rather it addressed itself to the is- sues seriatim , in accordance with the procedures agreed to by the parties. This was done without un- toward delay or avoidance. The Company defended its positions willingly and candidly and sought no foreclosure of discussion. It advanced nothing on a take-it-or-leave-it basis. The nature of the negotia- tions, then, were such as to minimize the need for an extensive exchange of written proposals or oral modifications. The substantive nature of the com- prehensive written counterproposals offered by the Company at the February 26 meeting, and the refusal of the Company at the final bargaining ses- sion on May 27 to respond to the Unions' final offer with counterproposals of its own, is hereinafter evaluated to determine the extent, if any, these actions constitute elements of company bad faith. However, I shall dismiss the complaint to the extent that it alleges the Company indepen- dently violated Section 8(a)(5) of the Act by failing to make adequate counterproposals. c. The dues-checkoff issue Contrary to the General Counsel, I do not find that the refusal of the Company to accede to the Unions' demand for a dues checkoff provision con- stituted a separate or per se violation of Section 8(a)(5) of the Act, or that its refusal was indicative of bad faith . It is well established that union securi- ty, including checkoff, is a mandatory subject of bargaining about which an employer must bargain in good faith. The record reveals that the Company did not foreclose discussion of the Unions ' checkoff proposal, which received extensive attention at meetings on and after November 19, but neither did it retreat from its position articulated initially at meeting of November 19. A mere refusal on the part of an employer to agree to a checkoff provi- sion does not violate Section 8(a)(5) of the Act if 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the refusal is supported by reasons of substance, ad- vanced in good faith, in furtherance of what ap- pears to him to be legitimate business or self-in- terest judgments.52 From the beginning, when the checkoff proposal was first discussed at the meeting of November 19, the Company took the position that a dues checkoff would contribute to the diminution of take-home pay and would generate demands upon the Company for an upward adjust- ment in wages. It was the Company's position that union fealty should suffice to induce employees to submit dues directly to the Unions. The Company remained unmoved by the Unions' assurances that a dues checkoff was entirely voluntary and was not different in effect from other payroll deductions which the Company was making at the behest of employees. The Company responded with the ob- servation, unassailable in my view, that a checkoff would merely add to the shrinkage of take-home pay and would run counter to efforts already un- dertaken to reduce the number and variety of em- ployee-directed payroll deductions. That the Com- pany was endeavoring to limit the variety and ex- tent of employee-directed payroll deductions is established by the record. Further, the shrinkage argument advanced by the Company is not specious and is one of substance. Thus, common experience establishes that a worker tends to measure his com- pensation on the basis of net, expendable proceeds. Although, in the beginning, an employer who deducts dues at the direction of an employee may not immediately bear the onus for reducing net pay, the passage of time tends to dim the memory and the desire on the part of the worker for greater tangible take-home pay undergoes a process of regeneration.53 An assessment of the record con- vinces me that this concept, and the desire to limit deductions quantitatively motivated the Company. Here, unlike Alba-Waldensian, supra, and H. K. Porter Company, Inc., 153 NLRB 1370, enfd. sub nom. United Steelworkers of America, AFL-CIO v. N.L.R.B., 363 F.2d 272 (C.A.D.C.), cert. denied 385 U.S. 851, the Unions adhered tenaciously to their dues checkoff demand and explored no alter- native method for collecting dues in order to ab- solve the Company from the onus attached to the reduction of take-home pay, or render the em- ployees' participation in the physical transaction connected with the payment of dues active rather than passive. In point of fact, the Company's sug- gestion that the Unions' loyalty should suffice as motivation for direct employee payment of dues was not seized upon by the union negotiators as an opening to explore the application of section 2, ar- ticle IV, of the stewards article which was agreed to by the Company at the meeting of January 14. This section authorized stewards to collect -dues ' McLane Company, Inc, 166 NLRB 1036, cf Alba-Waldenstan, Inc, 167 NLRB 695, Roanoke Iron & Bridge Works, Inc., 160 NLRB 175, 180-181 " Cf Alba-Waldensian , Inc , supra (TXD) when approval of the Unions was given. By failing to explore this possible alternative approach to dues collection and pursuing the checkoff approach exclusively the Unions implicitly rejected any com- promise resolution of the issue. That checkoff was of great importance to the Unions is underscored by the fact that they declared it one of the four remaining issues considered most significant to any accord with the Company. Indeed, to the end of negotiations the Unions insisted on a checkoff provision. The refusal of an employer to aid a union by ac- ceding to a checkoff of dues is insufficient, standing alone, to permit the imputation of an intention to frustrate agreement on collective-bargaining terms.54 I find upon the facts of this record that the Company's refusal to agree to a checkoff provision did not independently violate Section 8(a)(5) or constitute evidence of bad faith.ss d. The arbitration no-strike proposal In a similar manner, the evidence pertaining to the arbitration no-strike issue does not warrant the finding of an independent violation of Section 8(a)(5) of the Act. The basic position of the Com- pany with respect to the principle of arbitration was stated at the November 19 meeting, on the occa- sion of the initial consideration of the Unions' grievance proposal. Essentially, the Company ob- jected to the concept of subjecting the parties to- a binding determination made by a third-party "stranger." The Unions underscored the impor- tance of the arbitration issue by objecting at the November 19 meeting to any "open end" procedure for resolving grievances; and at the meeting of January 15 reiterated the singular im- portance of some form of arbitration as a means of providing employees with a "fair" means of settling disputes. The quid pro quo relationship between ar- bitration and the no-strike clause was stressed by the Unions at the meeting of February 27, and it was at this meeting that the Company inferred a willingness to retreat from its previous position on arbitration. This apparent shift was explored and made more explicit at the March 13 meeting when discussion centered around a form of "mutually- agreeable arbitration." At the March 13 meeting the efforts of both parties was directed to the draft- ing of suitable language. In substance, the proposal drafted provided for arbitration by mutual agree- ment of the parties but preserved the ri^ht of either party to resort to "economic recourse,' including a strike or lockout, if agreement to arbitrate could not be achieved. The counterproposal which the Company submitted at the next meeting made ar- bitration conditional upon agreement of both "American Oil Company, 164 NLRB 36, McCulloch Corporation, 132 NLRB 201, 211 " See McLane Company, Inc , supra , McCulloch Corporation, supra; Cone Mills Corporation, 169 NLRB 449 STANDARD TRUCKING CO. parties. After step 3 in the grievance procedure the Union could strike, but subject to a 60-day notice procedure. Further grievance strikes were precluded for a period of 120 days. Finally, the Company's proposal incorporated a no-strike, no- lockout provision precluding, inter alia, any "con- certed action of any nature which has its purpose or effect the interruption of or interference with the Company's operation." The Unions rejected this proposal and urged the adoption of the proposal, jointly drafted at the previous meeting. The Com- pany did not thereafter modify its position, and the Unions advanced no new arbitration proposal at the meetings that followed. On this issue , as on the issue of dues checkoff, the General Counsel relies heavily on the Board decision in Alba-Waldensian, Inc., supra. The precedential implications of that decision on the separate issue of overall good faith is considered below. However, as I read the decision, it lends lit- tle support to the General Counsel's contention that the Company's conduct with respect to the subject of arbitration coupled with a no-strike provision constituted, in essence, a per se violation of Section 8(a)(5) of the Act. The concept that "the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike," as stated in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455, is, of course, basic. Moreover, as the Board held in the Alba-Waldensian case, an employer's insistence upon a no-strike clause when coupled with a refusal to provide arbitration may, along with other factors, constitute strong evidence that the employer did not in fact intend to reach a collective-bargaining agreement with the union.56 Recognizing these elemental principals, I find, how- ever, that Alba-Waldensian lends little support to the General Counsel's position. Rather, the ra- tionale employed by Trial Examiner Eugene F. Frey in rejecting the General Counsel's subsidiary argu- ment in favor of a per se violation arising out of fac- tual circumstances very similar to those in the in- stant case, accords a convincing basis for rejecting that contention here. In Alba-Waldensian, Trial Ex- aminer Frey, finding no precedent indicating that it is improper for an employer during bargaining to oppose arbitration or the right to strike when its stand is supported with specific and persuasive reasons and arguments, found no merit in and re- jected the per se theory advanced the General Counsel. The Trial Examiner in Alba-Waldensian af- firmatively found that the objection of the respon- dent to third-party adjudication was sincerely ad- vanced and was one which was stated repeatedly and in detail throughout the negotiations. He found further that the respondent's proposal requiring the union to exercise its right to strike promptly at the end of a 30-day period was no "real deprivation of the basic right" to strike and was one which did not 599 "deny or emasculate" the union's right to strike. Rather Trial Examiner Frey observed that the proposal amounted to a mere postponement of the exercise of that right following a "cooling-off" period of a variety not uncommon in the labor-rela- tions policy of the Nation. In sum, Trial Examiner Frey found that the conduct of the parties in Alba- Waldensian was largely parallel in that the respond- ent was "adamant against all types of arbitration offered by the Union, but remained flexible to the end on the matter of use of the strike weapon by the Union, while the Union remained adamant on the right to strike without notice, while offering suggestions on varied types of arbitration." The record establishes that, while the Company was adamant throughout the negotiations in its op- position to the intrusion of a third party "stranger" into the dispute-resolving process, it remained willing throughout the negotiations to discuss the question of arbitration. Further, the Company manifested a degree of pliability on the subject of arbitration by its willingness to explore and sub- sequently to advance a form of a "mutually-agreea- ble arbitration." As in Alba-Waldensian, by advocat- ing a 60-day notice provision it may not be said that the Company was seeking to deprive the Unions of all right to strike. Here, as in Alba-Waldensian, the "cooling off" analogy is applicable. But here, un- like Alba-Waldensian, there was no insistence on the part of the Company upon a management preroga- tive to unilaterally change wages, or any term of employment, during the term of the agreement. This nexus, between the limitation upon arbitration and strike rights, on the one hand, and the reten- tion by the employer, on the other hand, of the authority over wages during the term of the agree- ment was a consideration stressed by the Board in reaching its determination that the position of the employer in Alba-Waldensian was "[only] indicative of bad faith." The explicit finding of the Board in Alba-Waldensian, leaving undisturbed the Trial Ex- aminer's refusal to find an independent violation of Section 8(a)(5) on the arbitration/no-strike issue, accords no basis for finding a per se violation herein. I find no such violation. Further, the absence f this crucial joinder of un- fettered company control over wages and other terms of employment on the one hand, and the limitation upon arbitration and strike rights on the other, is a consideration militating against the General Counsel on the issue of overall bad faith. Additionally, here, unlike Alba-Waldensian, as sub- sequently found, there are no other factors im- bedded in the bargaining conduct of the Company which, considered together with the arbitration/no- strike issue, lend support to a conclusion, as in Alba-Waldensian, that the Company did not in fact intend to reach a collective-bargaining agreement with the Unions. The arbitration/no-strike issue was S8 See also Radiator Specialty company, 143 NLRB 350, 370 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an issue upon which each party took strongly held positions. But the position of the Company was not per se indefensible, and, as found below, the manner in which bargaining reached its culmination forecloses a definitive conclusion as to the extent of Respondent's adamacy on it, and whether the Com- pany would have receded to a different form of "mutually agreeable arbitration" in exchange for concessions on other outstanding issues. I find, on the record as a whole, the Company's bargaining position on this issue was not indicative of bad faith. e. Overall bad faith Finally, the record does not support the General Counsel's contention that the Respondent ap- proached its bargaining obligation without requisite good faith and that, as the negotiations evolved, it pursued a course of bad-faith argaining violative of Section 8(a)(5) of the Act. If the prenegotiation pronouncements of C. W. Hemby to the effect that there would be no agreement-a statement which was articulated to a management functionary at the level of assistant manager-is not susceptible in its record context of being accorded conclusive weight in assessing Respondent's bargaining intentions, it is an evidentiary fact tending to support the General Counsel's assertion that, Respondent's approach toward its bargaining obligation was, in a significant sense, privative. However, while the record establishes hard bargaining on the part of the Com- pany, it supports no finding of bad faith. To be certain, at the February 26 bargaining ses- sion, the 10th between the parties, the Respondent engaged in conduct which placed its good faith in doubt. It was at the February 26 meeting, as found, when, following a series of meetings during which, under agreed-to procedures, the Unions' written proposals had been used as a basis for discussion, the company negotiators submitted a counter- proposal document which contained wording and draft language different from that contained in its counterpart sections in the Unions' proposals. The effect of this variance had the potential of render- ing tentative not only those items upon which agreement had been reached, but ofcasting a disquieting pale over any future "agreements" on other items. If the Company had insisted upon the reconsideration of agreed-to items based on its own counterproposals, bad faith would have been manifested. However the Company's submission of the counterproposal was accompanied by no such demand and the company negotiators quickly agreed to a continuation of negotiations centered around the Unions' written proposals. The Com- pany's claim of misunderstanding as to the nature of the document it was to submit, was one which the Unions did not adamantly contest. The record as a whole falls short of revealing either an inten- tion to disrupt or actual aggravation of the existing bargaining relationship resulting from the submis- sion. The document submitted contained proposals on each bargaining subject before the negotiators and appears to represent the Company's preferred, but not final, bargaining position. The counter- proposal was not a frivolous one and during the negotiations that followed its submission, the docu- ment was used as a basis for discussion on some items and language from the draft was adopted in achieving agreement with respect to certain sec- tions. Viewed from the entire context of the bar- gaining, this incident evokes suspicion but is not otherwise determinative of the issue of bad faith. The more cogent inquiry is into the asserted bad- faith failure of the Company to modify its bargain- ing position or to advance counteroffers in response to the "package" proposal offered by the Unions at the meeting of May 20. At the meeting of April 18, as requested by the mediator, the Company had summarized its bargaining position on each open item and the Unions' negotiators had summarily re- jected this as an offer to be taken to the member- ship for acceptance. At the next meeting, on May 20, the Unions offered proposals representing a modification in their previous bargaining position on a number of issues. This modification was in the direction of the Company's demand but the Unions' concessions were, by no means, complete, and the proposals were offered as a "package." At the next meeting the Company rejected the proposal, noting that it was offered as an indivisible unit. However, the Company restated its position on all open items and thereby, in effect, proffered terms which, in- ferentially, were advanced as an acceptable basis for reaching contractual accord. The Company declined the invitation of the Unions to counter separately on any unresolved issue . Thus, again by inference, the Company conveyed to the Unions that a contract would be reached only on the basis of union acceptance of the Company's stated bar- gaining position. In substance, the proposal was for a 1-year contract, embracing all terms upon which the parties had reached previous bargaining table agreement. These were to be augmented by terms granting, (a) an improved health and welfare plan; (b) holidays identical in number to those presently observed by the Company; (c) a longer vacation period for 20-year service employees, but otherwise the same as the existing vacation policy; (d) a liberalization in holiday and vacation qualification and compensation formulas; (e) wage and mileage rates higher than existing rates but lower than those demanded by the Unions; (f) a workday and work- week identical to that observed by the Company; (g) premium overtime compensation rates and guarantees at existing levels; and (h) retroactive wage compensation in the amount of $100, but less than necessary to constitute full retroactivity to September 15, 1968. Included in the agreement was to be a limitation on strike rights but no ab- solute prohibition. Excluded from the agreement was to be a provision for binding arbitration, dues checkoff, successorship liability, or compensation STANDARD TRUCKING CO. for terminal delay. Encompassed within the Com- pany's bargaining demand as of May 27 was the requirement that the maintenance of standard in- clusions be satisfactorily defined and that safety awards and bonuses be phased out. These latter two issues had a relatively low priority and the bargain- ing table discussion of them suggests that they were susceptible of resolution and were not likely to deter total agreement. Carefully assessed, the record reveals that the parties conducted negotiations with full realization of their likely impact as precedent upon the unor- ganized segment of the Company's multiterminal operation. Each party appreciated that, in a ver' real sense , these negotiations were "showcase negotiations, and bargaining was hard as a con- sequence. In this context, the Company confronted the Unions with terms which the latter did not wish to adopt. But the terms were not those which "no self-respecting union could accept." They were the product of hard bargaining on the part of parties sensitive to the stakes involved. While the Act requires the parties to negotiations to approach the bargaining table with an open mind and purpose to reach an agreement consistent with the respective rights of the parties, it imposes no obligation of retreat;57 and it imposes no obligation on an em- ployer to smooth the way for new or potential bar- gaining representatives by yielding on positions fairly maintained.58 The meeting of May 27 was held in the midst of a strike. It was the Unions who, prior to the strike, had broken off meetings and it was the Unions who on May 27 declared further meetings futile. By so doing, the standing on their "package" offer to the Unions, like the Company, inferentially defined their "final" bargaining position. Whether union abandonment of its package and resort to further item by item discussion and trading would have " See L. L Mature Transport Company v. N L R B, 198 F 2d 735 (C A 5) sa See N L R B v American National Insurance Co , 343 U S 395 8° See Alba- Waldensurn , Inc v N L R B , 404 F 2d 1370 (C.A. 4), enfg 167 NLRB 695 601 wrought agreement is purely speculative. But ex- ploration of this was foreclosed by the Unions' at- tempt to impose on the Company the burden of further "movement" or compromise on outstanding issues. This is a permissible bargaining technique on the part of the Unions, but it was equally permissi- ble for the Company to insist upon its terms and to continue to impose upon the Unions the burden of compromise. As I view the evidence, this was the status of matters when negotiations were broken off on May 27. The bargaining participation of the Company was not only "physically constant" 59 but it was sub- stantively viable.60 Bargaining positions were stated with candor and supported with reasons of sub- stance. Concessions were made to the Unions without effort to defoil61 and wages and other benefits were offered on virtually all aspects of the employment relationship. In summary, I find and conclude that the Respond- ent failed to sustain the allegations of the com- plaint- by the requisite preponderance of the evidence. As a consequence, I find that the strike which commenced on April 22 and continued thereafter at all relevant times was an economic strike and that the reinstatement rights of par- ticipating strikers were those normally accorded economic strikers. CONCLUSIONS OF LAW The General Counsel has failed to establish by a preponderance of the evidence that the Company has failed to bargain in good faith or has otherwise violated Section 8(a)(5) and (1) of the Act. RECOMMENDED ORDER The complaint be dismissed in its entirety. m See J D Heiskell & Co, Inc, 175 NLRB 485, W L McKnight d/bla Webster Outdoor Advertising Company, 170 NLRB_ 1395 81 Cf Tex-Tan Welhausen Company, et al, 172 NLRB 851 (TXD), enfd 419 F 2d 1265 (C A 5)