San Diego Van and Storage Co.

SAN DIEGO VAN AND STORAGE CO. San Diego Van and Storage Company and Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 542, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica Cor-O-Van Moving & Storage and Teamsters, Chauf- feurs, Warehousemen and Helpers Local No. 542, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 21-CA-14511 and 21-CA-14512 June 2, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On January 14, 1977, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondents filed limited cross-excep- tions and a supporting brief. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE JAMES T RASBURY. Administrative Law Judge: This con- solidated case was heard before me in San Diego, Califor- nia, on September 16 and 17. 1976. ] The charge against San Diego Van and Storage Company, as well as the Most of the relevant events occurred In the year 1976 and, unless other- wise indicated. all dates hereinafter will refer to the year 1976. charge against Cor-O-Van Moving & Storage, was filed on March 24 and a copy served on each of the Respondents on the same date by registered mail.2 On June 10, the Gen- eral Counsel issued an order consolidating cases, consoli- dated complaint, and notice of hearing alleging each of the Respondents to have failed to bargain in good faith in that, on April 1, each Respondent had unilaterally instituted a change in operations by forcing the employees to enter into an independent truckman's agreement without having first bargained to impasse with the collective-bargaining repre- sentative, in violation of Section 8(a)(5) and (1) of the Na- tional Labor Relations Act, as amended, (herein Act). All parties were given full opportunity to participate, to introduce relative evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs were filed on behalf of the General Counsel, Respondents, and the Charging Party and have been carefully considered. On the entire record of the case and my observations of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 3 I THE BUSINESS OF RESPONDENTS The complaint alleges and it is admitted that Respon- dent San Diego annually derives gross revenue in excess of $500,000 and annually purchases and receives goods and supplies valued in excess of $5,000 which originate from outside the State of California. The complaint alleges and it is admitted that Respon- dent Cor-O-Van annually derives gross revenue in excess of $500,000 and annually purchases and receives goods and supplies in excess of $5,000 which originate from out- side the State of California. On the basis of this admitted information I find that Respondents are, and each of them is and at all times ma- terial herein has been, employers engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2 A third charge was also filed on the same day by the same Charging Party against Republic Van Lines. Republic Van Lines apparently changed its mind and decided not to utilize the "Independent Contractor" method of operating and thereafter successfully completed a labor agreement with the Charging Partm resulting in the withdrawal of the charge. When required this decision will refer to the Respondent San Diego Van and Storage Com- pany as Respondent San Diego. The Respondent Cor-O-Van Moving & Storage will be referred to as Respondent Cor-O-Van. However, both Re- spondents had the same firm of attorneys as their counsel and followed the suggestions of that firm In an identical manner. For all essential purposes, the relevant and cogent evidence-both favorable and unfavorable-for each Respondent Is identical. Because the course of conduct by each Re- spondent is identical it is not necessary, in my opinion, to delineate in great detail the duplicitous and overlapping conduct by each of the Respondents as well as the similarly duplicated course of conduct by the Charging Part) toward the Respondents. T3 he facts found herein are based on the record as a whole and upon my observation oif the witnesses. the credlbilihty resolutions herein have been derised from a reslev, of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N L RB. vB. Halion Manufacturing Company & Loganville Pants Co. 369 U.S. 404 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been In conflict with the testimony of credible witnesses or because it was in and of Itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. 236 NLRB No. 78 701 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I1. THE LABOR ORGANIZATION INVOLVED The Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 542, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein Union), is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues to be resolved are related to those raised in the Fibreboard4 - Katz 5 - Taft Broadcasting6 line of cases. When a contemplated change will drastically affect the bargaining unit employees, what are the employer's obligations to the Union? B. The Evidence While the parties vigorously contest the conclusions to be drawn from the evidence presented, there is very little disagreement regarding most of the relevant evidence. Each Respondent for a number of years has been a party to a series of successive collective-bargaining agreements negotiated with the Union. While these agreements were separately signed by the parties and ran between the re- spective Respondents herein and the Union, they were ba- sically "me too" agreements based on the master contracts negotiated between the Southern California Moving and Storage Industry negotiating committee and the Union. The last such agreement was effective for the period of April 1, 1973, through April 1, 1976. (See G.C. Exh. 2. The evidence was undisputed that each of the Respondents had signed a contract identically to that represented by G.C. Exh. 2.) There was no independent evidence of union ani- mus introduced and the history of the industrial relations relationship between each of the Respondents and the Union appeared to be exemplary. There was no showing of prior unfair labor practices; there have been no arbitra- tions under a contract that provided for arbitration when and where necessary; and there has only been one minor grievance filed (that against Respondent San Diego) throughout the bargaining history. In late January each of the Respondents sent separate letters to the Union advising it that they desired to termi- nate the contract upon its expiration date.7 Letters were also sent at or about the same time by the Respondents to the Southern California Moving and Storage negotiating committee providing them with copies of their letters to the Union and reiterating their desire to negotiate on an indi- vidual and independent basis although they had never been a party to any multiemployer bargaining group (see Resp. Exhs. 2 and 10). 4 Fibrehoard Paper Products Corp v. N. L R.B., 379 U.S. 203 (1964). N i.. R B, v. Benne Kaz, etc., 369 U.S. 736 (1962). 6 Taft Broadcasting Co., 'D. AFAM-FM TV, 163 NLRB 475 (1967) 7Out of an abundance of precaution each of the Respondents further advised the Union that they were not members of. or party to. any multiem- ployer bargaining group and that each expected to negotiate for its emplos,- ees on an independent and separate basis. On February 2, the Respondents sent separate letters to the Union calling attention to their earlier letters giving notice of intent to terminate the current agreement upon its expiration date, and further advising the Union that "It is our contemplated intention to change our method of oper- ations whereby all our moving and storage needs will be accomplished by independent contractors." The letters continued, "Before we make any firm decisions in this re- gard, we would like to discuss the matter with you and explain to you all of the advantages of an independent contractor method of operations." The letter asked that the Union respond by February 10.8 At the hearing the busi- ness representative, George Chambers, acknowledged hav- ing received the letters from the Respondents but sought to explain his failure to reply by saying, "I didn't respond to it because I didn't wish to discuss at that time the change to a contract-drivers agreement. I wished to discuss our pro- posal-or our purposed new contract, but not a contract- drivers agreement." On February 17, Respondent Cor-O-Van wrote the Union reiterating their proposed change to independent contractors rather than employees and advised the Union that it would like to discuss the details of the independent contractor relationship with the employees within the next few days. The Union was again invited to contact the Re- spondent Cor-O-Van if it had any questions (G.C. Exh. 8). On the same afternoon Richard Schmitz, president of Re- spondent Cor-O-Van, received a telephone call from Busi- ness Representative Chambers during which Schmitz sought and obtained approval from Chambers to speak to the employees about the possible change in the method of operation. Chambers warned that he had no objection to the Company speaking to the employees but he cautioned the Company against negotiating with the employees. That same afternoon, February 17, Schmitz confirmed the tele- phone conversation by a letter written to the Union (G.C. Exh. 9).9 Schmitz held a meeting on February 21 with the Cor-O- Van employees at which time he advised the employees that he had obtained permission from the Union to speak to them regarding a contemplated new method of operat- ing, namely independent contractors rather than truckdriv- er employees. Schmitz explained to the employees that "we had not made a decision to implement that particular pro- gram, but that we were thinking about it." The meeting lasted for approximately 4 hours, was held away from the company facilities, and there is no indication in the record that attendance was anything other than voluntary. A sam- ple copy of the truckmen's agreement, or independent con- tractors' agreement, was presented to the employees as part of the explanation of what the Company was considering and some comparative financial data regarding earnings was presented by Scarborough, a vice president of Respon- dent Cor-O-Van.'0 s Respondent San Diego wrote their letter to the Union on February 6. and asked for a response by February 16. 9A similar telephone conversation was held between E. C DeBolt, presi- dent of Respondent San Diego. and Chambers, which conversation was confirmed by DeBolt's letter to the Union dated February 23 (G.C Exh. 10) 10 A similar meeting was conducted by DeBolt of Respondent San I)iego on February 26 under very similar conditions. 702 SAN DIEGO VAN AND STORAGE CO. By identical letters dated March 3, George Chambers advised each of the Respondents that the Union wanted to meet with them for the purpose of discussing proposals to the next contract. In the letter the Union suggested several dates in March and the parties agreed on March 15 as a mutually convenient date. I. The March 15 meetings Respondent Cor-O-Van was represented by Counsel and Chief Negotiator William C. Wright, Schmitz, and Scar- borough. The Union was represented by George Chambers as the principal spokesman and Thomas Rodgers, a busi- ness representative for the Union. The meeting lasted be- tween 1-1/2 and 2 hours and according to the testimony of Wright 12 he explained to the union representatives that the Company wanted to talk about the possibility of going to an independent contractor arrangement but the final deci- sion had not yet been made. According to Wright he ex- plained the economic necessity of reducing costs because of the difficulty of competing with nonunion companies within the area, including numerous "mom and pop" oper- ations. Wright sought to explain briefly to the union repre- sentatives the proposed independent contractor arrange- ment and offered sample copies of independent truckmen's agreements. Chambers responded by saying that he did not want or need a copy, that, "I am totally familiar with it; I've talked to the employees about it, and we don't like it, and we don't want it." According to Wright, Chambers complained because there was no union-security provi- sion, the contracts could be canceled on 24 hours' notice, there was no seniority provision, no provision for health, welfare, and pension benefits, and the individuals most concerned could not handle the business aspects of an in- dependent contractor relationship. Wright sought to re- spond to these objections, suggested some changes, and offered the union representatives a copy of the cost analy- sis, comparing the possible earnings of an employee under the current method of operations against the projected earnings of an independent contractor. This the Union re- jected, because they were familiar with it and "we've talked to our employees about it and they don't want it. They don't want anything to do about it. We represent the em- ployees and that's our job, and these employees don't want it, and we're not going to do it." While these are the words attributed to Chambers by Wright, during Chambers' cross-examination he testified that his "position was one of total opposition to the whole i As indicated earlier, activities of each of the Respondents and the Union followed an almost identical pattern, thus there appears to be little to be gained by outlining in detail the separate meetings. The Union met first waith the representatives of Respondent ( or-O-Van and then repeated the same procedures with Respondent San Diego and Republic Van Lines. who at this point was still pursuing a course of conduct identical to that of each of the named Respondents herein 12 Wright utilized notes which he made on March 15 during the course of the meetings to aid in his testimony and at the mutual request of all parties these notes appear in the record as Jt. Exhs A and B. Exh. A being the notes as they related to Respondent (Cor-O-Van and Exh. B being the notes taken during the meeting held with Respondent San Diego concept"; and he expressed definite opposition to any such arrangement. According to the testimony of Wright at one point Chambers exclaimed, "no, there is nothing else we want to say about it. We are just totally opposed to this lease operator thing and we're not going to agree to it; we're at an impasse." The use of the word impasse is de- nied by Chambers. The meeting concluded with Respon- dent's counsel, Wright, advising the union representatives that they would give consideration to the Union's objec- tions and inform it of their decision. A second meeting with Respondent San Diego and Re- public Van Lines was held within a few minutes following the conclusion of the meeting heretofore described. The meeting between the Union and these two companies was pretty much a carbon copy of what has heretofore been described and is only worth noting because Schmitz and Scarborough waited in the hotel while the second meeting was taking place. At its conclusion all company representa- tives met with their counsel, Wright. According to the testi- mony. in response to a question from Wright each of the individuals present, namely Schmitz, Scarborough, DeBolt, and Stephan, acknowledged and remembered that Cham- bers had used the word impasse. Wright indicated to these individuals that this was important and that in the event of future problems they should remember that Chambers had so expressed himself. On March 17 each of the Respondents sent the Union a telegram advising that each had decided to make the switch and utilize independent contractors rather than em- ployee drivers and "accordingly, we are willing to meet with the union at your earliest opportunity to fully discuss the potential impacts this change in our method of opera- tion will have upon our employees, or to discuss any other matter you may care to raise." 2. The March 22 meetings Following receipt of the above telegram a meeting was arranged for March 22 which followed the same format heretofore described, namely Counsel Wright and repre- sentatives from Respondent Cor-O-Van met first with the union representatives and then in a "carbon copy" type meeting the union representatives met with Counsel Wright and management representatives from Respondent San Diego and Republic Van Lines. The Union does not deny having received the telegram from the Company (G.C. Exh. 13). According to the testimony of Attorney Wright, Cham- bers started the meeting by asking why they were there. Wright responded that the Company had made its decision to lay off all employees effective April I and to operate by means of independent contractors and they were there to discuss the impact of that decision on the employees with the collective-bargaining representatives. Wright testified that he explained that the Company intended to continue the health and welfare coverage until the end of April for all employees and to pay vacation benefits through March 31 for all employees. He stated it was the Company's plan to offer an independent truckmen's contract to each of the employees and in addition those truckdrivers who were not interested in operating as independent contractors would 703 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be aided by the Company in finding another job within the industry. According to Wright, Chambers declared flatly that the Union would not negotiate over the effects of the Company's decision because, if the Union agreed to nego- tiate regarding the effects of the decision, it would be giv- ing its approval to the Company's earlier decision to con- vert to the independent contractor system which the Union opposed. The lack of understanding of this aspect of the law and the ease with which the Union was outmaneuvered is re- flected in Chambers' own testimony as to what occurred at the second meeting. (Questions by General Counsel of Mr. Chambers.) Q. Describe what happened, please, to the best of your recollection. A. Well, Mr. Wright informed us that the purpose of this meeting was to discuss the possible impact that this change would have on the employees of the Com- pany and the people that we represent. Q. Okay; go ahead. A. Okay. So, he told us that the Company had made the decision to make this change, which of course was obvious: we'd already received a telegram informing us of that. He told us that what they were going to do was, effective 12:01 March 31, terminate all employees: of- fer to all employees a contract drivers' agreement, and the people that did not sign the contract drivers' agree- ment that they would make an extra month's health and welfare payment: they would pay them prorated vacation pay, and they would make an honest effort to place these people, or find jobs within the industry. So, he asked if we wanted to discuss anything more about the impact, and the impact it was going to have-what impact was going to be on basically the employees that didn't sign the contract drivers' agree- ment. Because if they obviously signed the contract drivers' agreement they would be under that agree- ment, so there was nothing to discuss there. It was just the impact it was going to have on the people that would refuse to sign the contract drivers' agreement. We told him that-I told him that I was a bit con- fused why he even wanted to meet with us, because the telegram had spelled out that they were going to make the change regardless of what we said. And that in the first meeting all he was willing to discuss was or listen to-was our objections. In the second meeting all he wanted to discuss was impact. And we asked him if he was willing to discuss our proposals. [This has reference to proposals in the contract which was scheduled to expire on March 31 and does not have any reference to proposals in regard to the new method of operating that was to be under- taken by the Respondents.] He said, "that's not the purpose of this meeting. The purpose of this meeting is just to discuss the impact that this change is going to have on the employees." * . * * * And he did ask us if we wanted to propose anything for these people that were going to he without jobs. I told him-I informed him-that as far as the extra month's health and welfare that he was willing to pay that he was obligated under the current agreement to pay that: that the prorated vacation pay that he of- fered was--he was obligated-- well, not he, but the Company were obligated under the current agreement to pay that anyway. So he was offering absolutely nothing So, I told him I was, you know, confused as to why we were even having meeting, if he wasn't willing to discuss our proposals. He said that- JUDGE RASBURY: Now, when you use the term "our proposals," you are talking about the changes in the expired agreement which you would have liked to ne- gotiate with the Respondents. THE WITNESS: Yes. The meeting with Respondent San Diego and Republic Van Lines which followed immediately after the first meet- ing was again pretty much of a carbon copy of the first meeting except that during the course of this second meet- ing there was discussion regarding severance pay. After some rather substantial offers had been made by the C(om- panies it became clear that the Union had not been dis- cussing severance pay in connection with impact on the employees to be terminated under the new method of con- ducting business, but rather were talking about severance pay as a new proposal in the soon-to-expire contract. 3 When the confusion, or misunderstanding, became clear to everybody the discussion was terminated. A meeting was held with Respondent Cor-O-Van's em- ployees on March 24, attended by Schmitz and Scarbor- ough in which they advised the employees of their decision to convert to an independent contractor operation and to explain the final details of the new method of operating. At this time each of the employees received a termination no- tice to be effective at close of business March 31 (see G.C. Exh. 20) 14 and an application form was given to those em- ployees who thought that they would be interested in be- coming an independent contractor. On March 29. those employees who had expressed interest in becoming an in- dependent contractor signed the independent truckman's agreement. The Company's two warehousemen, who elect- ed not to become independent contractors, were retained as employees. As indicated earlier the only serious dispute in the above-related facts is whether or not Chambers and/or Rodgers ever used the word impasse to describe the state of their negotiations at either the March 15 meeting or the March 22 meeting between Respondents and the Union. The testimony of Donald Allred, a truckdriver formerly I There swas some collateral testimony indicating that a tentative date was made to negotilte the contract covering those warehousemen. or non- truckdrivers. who might have remained in the bargaining unit. Whether these negotiations ever took place and *"hat max have happened to ans such renmaining employees is not our concern in Ihis cast because it was neither all e ged as a violation in the complaint nor full' hu l ilted Slimilar notices swere distributed to the eniplo ees oif Repondent San D)eeeio as reflected hs (;.( sXh 18 704 SAN DIEGO VAN AND STORAGE CO. employed by Respondent San Diego, and Larry Rubin, a truckdriver formerly employed by Respondent Cor-O-Van, concerning the meetings between employees and the Re- spondents, does not seriously conflict with the testimony of the Respondents' witnesses as related above. Schmitz, Scarborough, and DeBolt, however, described the meetings in much greater detail and in my opinion were much more accurate as to the dates and precisely what was done and said than either Allred or Rubin. Analysis and Conclusions General Counsel's argument is straightforward and sim- ple. Counsel argues that subcontracting of the type herein involved drastically affects the employees within the bar- gaining unit and thus is a mandatory subject for collective bargaining, citing Fibreboad, supra. Once having de- termined that the subcontracting is a mandatory subject for collective bargaining it was incumbent upon the em- ployer to bargain in good faith until an impasse was reached before unilaterally instituting any changes (citing Taft Broadcasting, supra, and The Lange Compan v, A Divi- sion of Garcia Corporation, 222 NLRB 558 (1976) ). While I do not quarrel with General Counsel's version of the law, in this instance I feel that the Respondents, and each of them individually, have full)y complied with their obliga- tions under the law and I shall recommend dismissal for the reasons more fully set out below. The Charging Party's brief was devoted entirely to the argument that a change of such magnitude and effect on the employees could not possibly be resolved in one brief bargaining session. Thus. Respondents entered the negotia- tions with their decision already made and the result was a fait accompli which is violative of Section 8(a)(5) and ( I ) of the Act. I have weighed and considered this argument and dispose of it below. In the absence of a fait accompli, the duty to bargain arises upon request, or, as was the case in this instance. reasonable notice of anticipated change which will affect the employees. Here the Union was notified by each of the Respondents of their contemplated change in operations and was requested to get in touch with the respective em- ployers if it had any desire to discuss the issue. Were it necessary for a resolution of the issues in this case. I would be disposed to find that the Union had failed in the perfor- mance of its mutual obligation to bargain collectively.' As the court said in N.L.R.B. v. Alva Allen Industries, Inc., 369 F.2d 310, 321 (C.A. 8, 1966), "A union cannot charge an employer with refusal to negotiate when it has made no attempts to bring the employer to the bargaining table." If the union actually knows of an employer's plan it is not necessary to formally advise the union, but in the instant case the Union was notified the first part of February and chose to ignore that notice until they received a second communication from Respondents the latter part of Febru- s Sec. 8(d) of the Act in relevant part reads as s follos: "For the purpose of this section, to bargain collectivels is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer In good faith wilh respect to wages. hours. and other terms and conditions of eniplosment ary expressing their desires to discuss the plan with the employees. The indifferent position of the Union could easily have justified either of the Respondents in relying on the doctrine of waiver.16 However, the Respondents went further they met with the Union and sought its sugges- tions for alternatives. The testimony of Attorney William Wright concerning the negotiations was concise and explicit. He testified with the use of notes made at the time the negotiations were taking place and they may be found in the record as Joint Exhibits A and B. I believe Attorney Wright's testimony to be accurate and honest. It fully reflects the fact that the Union was offered an opportunity to advance arguments and alternatives as to why the Respondents' contemplated decision should not take place, but the Union's only reac- tion was nothing more than negativism: i.e., "You can't do it, we don't like it and the employees won't let ya." In such an atmosphere the futility of continued discussion becomes rather obvious even though the period of negotiating time was rather brief. As the General Counsel states, "The ulti- mate question is whether further bargaining would have been futile." Citing Alser Refractories Company, 215 NLRB 785 (1974). 1 agree with General Counsel and, having lis- tened to the participants in those negotiations and having heard them recount what transpired, I am convinced that a reasonable inference to be drawn from the words and atti- tudes of the union representatives is that further discussion would have been futile. Moreover, I am convinced that the union representative, Chambers, recognized the futility of further discussion and used the word "impasse" to describe the condition that existed between the Respondents and the Union. There is no rigid formula for assessing so subtle an issue as the precise time an impasse occurs. There is no fixed definition of an impasse or deadlock which can be me- chanically applied to all factual situations.t7 Resolving that issue must be a reasonable conclusion fully warranted from the expressed words and attitudes of the party participants. Having carefully reflected on the words and attitudes of the participants in the relevant negotiations with which we are here concerned, my conclusion is positive and, I feel, reasonable. The parties were hopelessly deadlocked and further meetings would have been in vain. The meeting which was arranged on March 24 for the purpose of discussing the effects of the decision on the employees and to give the Union an opportunity to negoti- ate the best deal possible for the employees was even more of a catastrophe. Instead of using this opportunity to get something of material value that might have been of bene- fit and gain to the employees they represented, the Union again assumed a dogmatic, irreconcilable attitude exempli- fied by, "You can't do this to me." While neither Cham- bers or Rodgers is an attorney, both are knowledgeable, 6 See Tlhe langc ( mrpanv, .4 i).ision of Garcia Corpoiration, 222 NLRB 558. 564 ( 1976. | Dallai (General Drtvers,. lIarehousermen and Helpers. Local mnion No '45. Iniernational Brotherherhd It, lIeamsterr, Chauffeurs. Walrehousemen and Hteipers of Ameria /lEonire lIrrminil I4'arehouse Co ] s. v.L R.B.. 355 F.2d 842 ((A. C)( . 1966 705 DECISIONS OF NATIONAL LABOR RELATIONS BOARD experienced union representatives and negotiators and should have been more aware of their obligation to the employees they represented. The testimony of the Union's business agents, Chambers and Rodgers, as to what took place at the second meeting clearly reflects that they were totally unconcerned with any discussion of the impact of Respondents' decision to turn to independent contractors and instead were only willing to discuss their proposals to the contract that was about to expire on March 31. As the Board said in dismissing an 8(a)(5) and (1) allegation in Edward Axel Roffman Associates, Inc., 147 NLRB 717, 723- 724 (1964), where men's jobs and livelihoods are at stake the parties should bargain rather than rely on technicalities and it was the Union and not Respondent which refused to negotiate. After a very careful analysis of all of the testimony and documentary evidence presented for consideration I am of the opinion that Respondents' conduct, and each of them individually, fully complied with the law. It was not unrea- sonable for Respondents to conclude that an impasse had been reached and such an inference was warranted under all the circumstances.'8 18 See The Emporium, a Subdivision of the Emporium-Capwell ('ompartn Division of Carter Hawle> Hale Stores, Inc. (Northern California Joint Board Amalgamated Clothing Workers of America). 221 NLRB 1211 (1975). wherein the Board dismissed an 81a)(5) and (1) complaint in which the negative attitude of the union and its failure to assume its proper role In the negotiating process resulted in a dismissal of the complaint. The complaint does not raise the issue and I have not attempted to analyze the qualities of the "independent truckman's contracts" which the Respondents herein of- fered to the former employees. Whether these individuals are truly independent contractors or whether they are merely employees working under a new arrangement was neither alleged by the General Counsel nor fully litigated.' Based on all of the foregoing circumstances, I do not believe the General Counsel has sustained the burden of establishing a violation of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 20 The complaint is dismissed in its entirety. 19 There is a real difference in whether or not the truckmen's agreement created a truly independent contractor and the argument the General Coun- sel did raise at the hearing, i.e.. it is the same work being done in the same way by the same people. His argument begs the real issue. If a truly inde- pendent contractor relationship was established, then it was not the same 4ork in the same waYq It is perhaps unfortunate for the individuals involved that an appropriate allegation was not included in the complaint that would have permitted General Counsel to proceed on such a theory See John W Davis. d/b a Industrial Feeding and Catering Service, 216 NLRB 1098, 1101 1975). 20 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions. and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. 706