Port Norris Express Co.

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Port Norris Express Company- and Teamsters Local Union No. 676, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 4-CA-4560 February 20, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On September 30, 1968, Trial Examiner William F. Scharnikow issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision together with a brief and a supplemental brief, and the General Counsel and the Union filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner2 and orders that the Respondent, Port Norris Express Company, Port Norris, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. The Respondent excepts to some of the Trial Examiner 's credibility resolutions It is the Board's established policy, however , not to overrule a Trial Examiner' s resolutions as to credibility unless, as is not the case here, the preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C.A. 3) 'Section 2(c) of the Trial Examiner's Recommended Order, which we adopt, is applicable only to contracts to be negotiated in the future and we do not intend thereby to affect the validity of the present contract between the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: The Complaint alleges that the Respondent, Port Norris Express Company, has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, el seq , herein called the Act. With respect to the unfair labor practices, the Complaint asserts, but the Respondent's answer denies that, (1) upon being requested to bargain by the Union which was and is the exclusive bargaining representative of an appropriate bargaining unit of the Respondent's employees within the meaning of Section 9(a) and (b) of the Act, the Respondent committed unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act (a) by "negotiating . . . in bad faith . . . with no intention of entering into any final binding collective bargaining agreement," and (b) by refusing on and since February 6, 1968, to "negotiate and discuss . . any collective bargaining matters, other than wages, holidays and vacations ... ;" and (2) on and since February 10, 1968, the Respondent committed further unfair labor practices "in support of its unlawful bargaining" and in violation of Section 8(a)(3) and (1) of the Act, by closing down its garage and locking out its employees.' Pursuant to notice, a hearing was held at Vineland, New Jersey, on May 27, 28, and 29, 1968, before me. The General Counsel, the Respondent, and the Union appeared by counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence upon the issues in the case. At the request of counsel for the Respondent on May 29, 1968 (the third day of hearing), I issued a subpoena duces tecum directed to Commissioner Martin S. Komornik of the Federal Mediation and Conciliation Service, and adjourned further hearing until June 18, 1968, solely for the purpose of taking the testimony of Commissioner Komornik at that time. On June 14, 1968, Morris L. Myers, General Counsel for the Federal Mediation and Conciliation Service filed and served upon counsel for the Respondent a petition to revoke the subpoena. On June 17, 1968, 1 issued a telegraphic order and caused its immediate service upon counsel, indefinitely postponing the hearing scheduled for June 18, 1968, and directing the Respondent to show cause in writing why the petition to revoke the subpoena should not be granted and the hearing closed. On June 21, 1968, counsel for the Respondent filed his opposition to the petition to revoke. On June 26, 1968, upon consideration of the petition to revoke and the Respondent's opposition thereto, I issued an order and caused service thereof to be made upon all counsel, revoking the subpoena, closing the hearing, and granting leave to counsel to file their briefs on or before July 12, 1968. Since the close of the hearing I have received and considered briefs for the General Counsel and counsel for the Respondent and the Union. Upon the entire record in the case and from my observation of the witnesses, I make the following- 'The unfair labor practice charge was filed by the Union on March 7, 1968, and served on the Respondent on the same day . The Regional Director issued the Complaint and caused it to be served on the Respondent and the Union on April 19, 1968 The Respondent filed its answer on April 29, 1968 PORT NORRIS EXPRESS CO. 685 FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, Port Norris Express Company, is a New Jersey corporation which maintains its principal office and place of business in Port Norris, New Jersey. It is engaged in the intrastate and interstate hauling and transportation of goods and materials. During the year preceding the issuance of the complaint, the Respondent received more than $50,000 from services in the transportation of goods and materials across State lines. I find that the Respondent is, and has been at all material times, an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to entertain jurisdiction on the present case. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local Union No. 676, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union), is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction : General Framework of the Case and Issues For the last 30 years, the Respondent has been an incorporated motor common carrier with its office, garage, and yard located in Port Norris, New Jersey, and has been engaged in the business of transporting sand by truck or tractor-trailer on a trip-by-trip arrangement from New Jersey sand companies to various New Jersey glass manufacturers and other users of sand in New Jersey, Pennsylvania, New York State, and New England. Its trucks or trailers (currently numbering 26) are loaded at the consignors' premises and either proceed directly therefrom on their deliveries the same day or, in instances of the longer hauls, are parked in the Respondent's yard overnight (or over the weekend if loaded on a Friday) before being finally dispatched to their delivery points. The Respondent's drivers have been paid in accordance with a trip-rate schedule which in some cases has included specific overnight subsistence allowances. As a matter of regular practice during the period with which we are concerned, James Garrison, the Respondent's vice president, listed the driving assignment for each man for the following workday on a schedule which he placed in a basket on a desk in the office toward the end of the preceding workday. If Garrison happened to be in the yard upon a driver's return at the end of a particular workday, Garrison might tell the driver whether he had an assignment the next working day and, if so, what it was. Otherwise, to see whether he had such an assignment, the driver checked the assignment list or schedule in the office, using a key to enter the garage door to get to the office beyond, if it were late and the door was locked. The drivers checked in this fashion as to whether they had an assignment for the following workday not only on the preceding evening but on Saturdays and Sundays to see whether they had Monday assignments. If a driver had not been told he had an assignment for a particular workday and none was listed for him on the assignment list or schedule, he was not expected to report for work that day but merely to continue checking each evening for work on the succeeding day. In essence, the General Council and the Union contend, but the Respondent denies, that following the expiration on December 31, 1967, of a contract with the Union covering the Respondent's truckdrivers, the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith on the Union's lengthy proposal for a new contract, and that the Respondent also violated Section 8(a)(3) and (1) of the Act by "locking out" the drivers to discourage their continuing membership in and support of the Union, and to force the Union to accept the Respondent's more limited contract proposal. Both the Respondent's alleged refusal to bargain and its alleged "lock out" of its truckdrivers occurred while the Respondent's and the Union's representatives were engaged from February 6 to April 22, 1968,2 in a series of eight meetings concerning the terms of a new contract. According to the General Counsel and the Union, the Respondent's refusal to bargain began with the refusal of the Respondent's vice president, James Garrison, to consider or discuss the Union's lengthy, typewritten contract proposal when it was submitted by the Union's vice president, Charles Morris, at the meeting on February 6, and continued throughout subsequent meetings on March 5, 20, and 23 until, during meetings on April 5, 16, 19, and 22, the parties turned for the first time to a detailed discussion of the Union's as well as the Respondent's proposal and on April 22 reached a complete oral agreement which was thereafter reduced to writing and executed on May 23, retroactive to January 1, 1968. The charge of "lock out" arose from the facts (as hereinafter found in detail) that Vice President Garrison of the Respondent knew that the Union was holding a meeting for the drivers on Saturday morning February 10, to report Garrison's limited proposal and his rejection of the Union's proposal, that Garrison believed a strike was likely and might occur when the Respondent's trucks were loaded, and that Garrison therefore scheduled no deliveries for the Respondent's customers after February 10 (and thus no work for its drivers) until a full agreement was eventually reached with the Union on a contract on April 22. Three days of hearing were taken to present the evidence. Apparently because of the heat generated by the dispute which gave rise to the present case, the witnesses were wary in their testimony, and frequently gave vague and meaningless answers when they were not sure of the implications. These were difficulties faced by counsel and led to lengthier questioning than should have been necessary. Eventually, however, as each witness continued in his testimony, what at first seemed to promise possible conflicts were resolved in many instances by the rest of the witness' testimony and stipulations by counsel. As a result, when the evidence is shaken down to its eventual relevant core, the basic material facts with respect to the refusal to bargain are for the most part not in dispute. Nor, to a great extent, are the facts relating to the alleged "lockout," although in this latter connection, there are questions as to the proper inferences to be drawn from these facts. In the following sections of this Decision, the substance of the evidence with respect to the refusal to bargain will first be considered, and then the remaining evidence relating to the "lockout." Unless otherwise indicated, the factual findings set forth are matters which are not in dispute. 'Unless otherwise indicated, all dates are m 1968. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Refusal To Bargain Under a series of contracts with the Respondent, the Union has for more than 20 years been continuously recognized by the Respondent as the exclusive bargaining representative of an appropriate unit of the Respondent's truckdrivers, excluding office clerical employees, guards, and supervisors. The last of these contracts prior to the events in the present case, was in the form of a one-page letter of agreement signed by the parties on July 19, 1965 and covering the truckdrivers for a period from April 1, 1965 through December 31, 1967. In short, one- or two-lined, numbered paragraphs, this agreement made provision only for certain matters which the witnesses and counsel spoke of during the hearing as "economic matters," i.e., certain trip-rate increases, a waiting-time rate, holidays identical to those granted by local glass manufacturers, and a 3-week vacation for drivers with 10 or more years of service. The ninth and final paragraph of this letter of agreement, however, provided that, "The Company also agrees to meet with the Union in the near future to negotiate the body of the agreement." But no arrangement was made by the parties to hold the meeting or meetings thus contemplated, and the 1965 agreement expired on December 31, 1967, without the parties having negotiated or adopted any such general "body of agreement." In December 1967, and again in January 1968, James Garrison, the Respondent's vice president, spoke with Steward Jack Randazzo about a new agreement which would become effective on January 1, 1968. In December 1967, Randazzo told Garrison they "should start to work out a new agreement whenever it was convenient," and Garrison agreed, saying, without being more specific, that he had "in mind . . a fairly good increase" and that, "if there was something else on [the Union's] mind, we could also talk about that matter. . . ." In January 1968, Garrison gave Randazzo "a little more detail" as to the rate-raises he, contemplated. Using as examples some of the "trips that we make pretty often," he said he was willing to raise rates for some of them by 5 percent and for some others by as much as 20 percent, and Randazzo agreed to explain this to the drivers. On January 20, Steward Randazzo told the drivers of this general proposal by Garrison. As Randazzo testified, the drivers "rejected [the proposal] because we had no contract. They wanted a contract. They wanted something binding and spelled out. They wanted something to tell us what we were to do and what we were not to do." Following this, Union Vice President Charles Morris telephoned Garrison and a meeting was arranged for Tuesday, February 6 at the Respondent's office. The meeting on February 6 was attended by Morris, Steward Randazzo, and two Union committeemen. Garrison and President Sam Leonetti were there for the Respondent. Garrison repeated his general proposal, already made to Steward Randazzo, to increase some of the trip rates, but in no more detail than he had to Randazzo since, as he testified, "I did not have the trips spelled out in detail like [they were later] submitted." Morris produced a 71-page, typed contract proposal which Garrison in his testimony and Respondent's counsel in his questioning referred to as "almost a standard national freight contract,"' and which contained provisions with respect to such matters as grievance and arbitration procedures; wages, hours, and overtime; seniority, layoff, and recall, holidays; vacation, subcontracting, causes for dismissal or suspension; and safe conditions of work. Garrison said at this meeting on February 6 that he was willing to discuss what his rate increases would be but, after merely glancing at the Union's contract proposal turned it back to Morris with the statement, according to his own testimony, "that it was entirely too stiff . . . for us to even consider."4 Although Morris told Garrison "that we were prepared to discuss, anything [in the Union's proposal] that would hurt this operation in any way ... ," Garrison said, "I do not want to look at it."5 There was no further meeting between the Union's and the Respondent's representatives after this meeting of February 6 until March 5. In the meantime, Morris held a Union meeting of the Respondent's drivers on Saturday morning, February 10, at which the drivers voted to reject Garrison's limited contract proposal of rate increases and to ask the Union's International for authority to strike, and, beginning on Monday, February 12, the Respondent undertook no further hauls for its customers and its drivers did no work for the Respondent. The details of this evidence as to why, the drivers were idle on and after February 12 (and, for that matter, until about April 22) do not affect the question of whether the Respondent refused to bargain in good faith on the Union's contract proposal until the much later bargaining meetings beginning on April 5, but relate directly to the "lockout" issue which is considered more conveniently and at length in the next section of this Decision. The record gives no clear basis for any conclusion as to whether Morris or Garrison was responsible for the lapse of a month between their first meeting on February 6 and their second meeting on March 5. A fair appraisal of the evidence would indicate that neither made any attempt to reach the other in the week beginning on Monday, February 12. Although Morris testified that he telephoned Garrison at the latter's office on that Tuesday (February 13) and was told that Garrison was not in, I credit Garrison's testimony that it was not until Friday, February 16, that he left on a 10-day or 2-week vacation. Accordingly, it would appear that Morris' unsuccessful telephone call was made, at the earliest, sometime in the week beginning on Monday, February 19. Both men agree that on Garrison's return (which could not have been before February 26), they did speak with each other on the telephone and arrange the meeting of March 5. Each claimed it was he who called the other, but, after the lapse of time up to that point, it does not seem to me to be material who it was who then made the call. Although several other Union representatives were present at the meeting of March 5 with Garrison, Morris was the Union's spokesman. He again submitted the Union's contract proposal and, as he testified without contradiction, offered to discuss the proposal "page by page." But Garrison refused to look at the proposal and, according to Garrison's testimony, when Morris "insisted on his contract," Garrison simply said, "I could not live 'Consistent with the Respondent's attorney's reference to this form of contract (Tr p. 381, 1. 25 ), the answer of Garrison appearing at p 380, 1 24, is hereby corrected to read "standard national freight contract," instead of "standard national rate contract." The error thus corrected was apparently inadvertent on the part of the Official Reporter. 'This is unquestionably the essence of the position stated by Garrison at this meeting According to Morris, Garrison' s statement was actually that "I would never sign this as long as you are living. I hope that you live to be one hundred." 'Morris' testimony that Garrison thus refused to discuss any of the matters in the Union's contract proposal which he might find to be objectionable, was not denied by Garrison PORT NORRIS EXPRESS CO. 687 with it. There was too much money involved." On the other hand, Garrison pressed for the Union's acceptance of the rate increases he was willing to give (although he still had made no definite formulation of what they would be), but Morris flatly refused to agree to this general proposal. Following this meeting of March 5, the Union delivered a copy of its full contract proposal to the office of the Respondent's attorney, J. Peter Davidow, at the request of a young attorney who also had his offices there. In addition, Attorney Davidow requested the assistance of the Federal Mediation and Conciliation Service in mediating the contract dispute. As a result, Commissioner Martin S. Komornik attended the next three meetings between the parties on March 20, March 23, and April 5. The meeting of March 20 was held at Attorney Davidow's office and was attended by Commissioner Komornik, and Morris and several other representatives for the Union. Garrison did not attend and Attorney Davidow alone was there for the Respondent. There was some discussion of the drivers' going back to work which will be considered in the next section of this Decision. It does not appear whether the general subject of rate increases was discussed. When the meeting turned to the Union's contract proposal, Attorney Davidow said that he had not had a chance to look at the contract proposal and was not prepared to discuss it then. Another meeting was arranged however for the following Saturday, March 23, and was again held at the office of Attorney Davidow with the Commissioner and the same representatives of the Union also present. In addition Garrison attended the March 23 meeting. At this meeting on March 23, there was some discussion between the parties in the presence of the Mediation Commissioner of the men's return to work, which will be considered in the next section of this Decision. In addition, Garrison submitted to the Union's representatives in the presence of the Mediator a formulation of the rate increases he was prepared to give and a full proposed rate schedule. But there was no discussion of these "economic" proposals by the Respondent. For, as Garrison testified, "The only way that the union was willing to negotiate was on their contract and the terms in economics were not discussed then, that is, beyond me submitting it." Nor was there any discussion of the Union's contract proposal. For, when the Mediator started going over it from the first page, Attorney Davidow said that it was "too thick to get involved in now," that he "was tired and had a bad week and did not want to get into any discussions as far as the proposed agreement ... was concerned." A third meeting between the parties' representatives with Commissioner Komornik present was held on April 5 in the Union's office at Vineland followed by lengthier meetings (which the Mediator did not attend) on April 16 and 19 at the Union's Collingswood office and a final meeting on April 22 at a restaurant in Stony Brook. The record does not show what transpired at the April 5 meeting although apparently the base was then laid for the more productive later meetings. At the meetings on April 16 and 19 the Respondent's proposed rate schedule was discussed, and in the final meeting on April 22 the parties reached an oral agreement on a full contract including these "economics" provisions and also the substance of many of the provisions proposed by the Union. The contract was reduced to writing and signed by the parties on May 23, retroactive to January 1, 1968. Upon the foregoing facts, it is clear that on and after February 6 and until the meeting of April 5, the Respondent refused to bargain with the Union on the Union's contract proposal of February 6. For at the meetings of February 6 and March 5, Garrison not only generally refused to consider the provisions of the proposal after merely glancing at them, but rejected Morris' offers to discuss and consider the specific reasons or objections which Garrison might have to any particular provision or provisions in the proposal. And when the Union again attempted to discuss the various provisions in the presence of the Mediator at the meetings on March 20 (which Garrison did not attend) and on March 23 (with Garrison present), Attorney Davidow again refused to talk about the proposal, saying in the first of these meetings simply that he was not prepared to discuss the proposals and in the meeting on March 23 that the proposal was "too thick to get involved in now" and he was "tired." Thus, despite the fact that the Union's proposal had been submitted almost 2 months earlier, the Respondent repeatedly refused to confer and bargain with the Union concerning their substance. In this situation, I find and conclude that from February 6, 1968, until at least the meeting of the parties on April 5, 1968, the Respondent refused to bargain in good faith with the Union on the Union's contract proposal and thereby committed an unfair labor practice within the meaning of Section 8(5) and (1) of the Act. C. The Lockout 1. The questions raised by the evidence Having found that the Respondent had initially refused to bargain in good faith on the Union's contract proposal in the period from February 6 until April 5, we turn now to the question of why the Respondent's drivers were not at work from February 12 until after the Respondent and the Union reached an oral agreement on their full contract on April 22. Actually there is a series of questions raised by the evidence and the positions taken by the parties: Were the drivers on strike in accordance with a decision made by them at their Union meeting on February 10? Or did the Respondent lock them out out by refusing all assignments of work from its customers and making no assignments to the drivers on and after February 12? Or was the situation so confused that no one knew why the drivers were not working after February 12? Finally, if it be found that the Respondent locked out the drivers and was thus responsible for their idleness on and after February 12, was the lockout justified in spite of the Respondent's contemporaneous, illegal refusal to bargain, because the Respondent reasonably believed, on the basis of reports received from drivers concerning their Union meeting on February 10 and the absence of any advice to the contrary from the Union, that the drivers might either be on strike or about to strike at a time of their own choice which would be most inconvenient for, and effective against, the Respondent? 2. The relevant facts shown by the evidence Following Union Representative Morris' meeting of February 6 with Vice President Garrison of the Respondent, the Union notified the Respondent's drivers by letter and by a notice posted on the oulletin board in the Respondent's garage that there would be a meeting of 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the drivers on Saturday, February 10. It is clear from the evidence, and I find, that Garrison knew in advance of the meeting and that, anticipating the possibility of a strike, he decided to accept no shipments for the following Monday, Tuesday, or Wednesday, that he rejected any such shipments as were profferred by the Respondent's customers, and, accordingly, that he prepared no assignment schedule for the drivers for Monday or thereafter and told two of the drivers on Friday, February 9 that there would be no work n Monday. For, not only did Garrison testify that he might have told some of his customers during the week ending on Saturday, February 10 "that we may have a strike and we may not be able to give service," but Harry Bowker, the assistant superintendent of Whitehead Brothers (a sand plant), testified without contradiction, and I find, that on Friday, February 9 he telephoned Garrison about several out-of-State sand shipments but Garrison refused to accept any loads for Monday shipment, explaining that "they were going to have a strike vote or a union meeting and he [Garrison] was afraid that the loads would be loaded and left on the truck on Monday." Moreover, upon the uncontradicted testimony of the two drivers, I find that on Friday, February 9, Garrison also told Steward Jack Randazzo that there was nothing for him to load\for further shipment and that on the same day he also told Driver Charles Hankins at the end of the latter's workday, "I guess that is all for a while."- Finally, in the general situation apparent from the foregoing evidence, it is clear and undisputed that Garrison did not prepare, nor therefore leave in the office, the usual drivers' assignment schedule for Monday, February 12. Pursuant to the letters to the drivers and the notice posted on the bulletin board in the Respondent's garage, Union Vice President Morris met with the drivers at the VFW Hall in Port Norris on Saturday morning, February 10. In substance, Morris told the men that Garrison had refused to negotiate a contract concerning anything except the trip-rates and, to their questions as to what should be done, he told them that he had no authority to approve a strike, that they should continue to work during the Union's negotiations with the Respondent, but that they should vote on whether to ask the International for "strike sanction ." The men voted, 19 to 2, to reject Garrison's limited proposal and to ask for "strike sanction." Morris then told them to go back to work and that he would tell the Respondent that the men had turned down the Respondent's proposal and that the Union was ready to negotiate. The foregoing findings concerning the union meeting of February 10 are based principally upon the testimony of Union Vice President Morris, but also in part upon the consistent evidence given by Steward Randazzo and all six of the drivers who testified about the meeting as witnesses for the Respondent. But three of these drivers (John McPherson, Joseph Carman, and Charles Hankins) testified, in square contradiction of denials by Morris, Randazzo and drivers Michael Gould and Raymond Wynder,6 that, although Morris told the men to go back to work during negotiations and until "strike sanction" was given, Morris also spoke about the possibility of their striking at some future time when the trucks were loaded. Although the matter is not free from doubt, I credit this testimony. It should be noted, however, upon the clear remainder of the testimony, that the men did not vote to go on strike immediately and that Morris told them they were to stay at work ' But when some of the drivers visited the terminal on Saturday afternoon or on Sunday, February 10 or 11, they learned that Garrison had scheduled no work for any of the drivers for Monday; that he had no definite idea when he would resume operations; and that, without prior notice to them, he had just installed an additional lock on the garage door which their keys would not open. Thus, after leaving the Union meeting at about 12:30 or 1 p.m. on Saturday, four of the drivers returned to the Respondent's yard where several of them had left their cars, and, in a conversation which will be considered more fully below, Garrison told three of them who entered the yard or garage (Rickets, Gould, and Wynder) that he had scheduled no work for Monday or the following days. Later in the afternoon, driver Mason (the fourth driver who had not entered the yard with the other three and who had not overheard their conversation with Garrison) returned to the terminal at about 3 p.m. after Garrison had left but while the mechanics were still working in the garage. The garage door was still open and Mason entered but, although he looked for a Monday assignment schedule, he could not find one either where Garrison regularly left it on Friday nights or Saturdays, or at any other place in the office or garage. Two other drivers also made unsuccessful attempts to enter the garage and office to check on possible Monday assignments on Saturday or Sunday after the garage door was closed and locked but were unable to get in because their keys would not open the new lock. Driver Randazzo made his attempt at about 3 or 3:30 p.m. on Saturday, and driver McPherson on Saturday afternoon or Sunday. Furthermore, according to Steward Randazzo's testimony (which I credit), he spoke to "almost every [other] driver" of the Respondent and, after telling each of them that he had been unable to get into the terminal because the door had been locked, he was told by them either that they, too, had found the door locked or that they had heard from other drivers that the door was locked. Neither Union Vice President Morris nor any other union representative immediately informed Garrison of what had happened at the Union meeting on Saturday, February 10, nor that the men were not on strike . But, as already noted, Garrison did speak to three of the drivers within an hour or so after the meeting. According to his testimony their "confused" version of the meeting, the failure of the drivers to report for work on and after Monday, February 12, and the absence of any direct advice from the Union for the next few weeks, not only made him uncertain as to what the situation was, but led to an assumption on his part either that the men were on strike or that they would shortly go on strike after the Respondent's trucks were loaded for delivery, and he 'Samuel Mason, the other driver who testified for the Respondent about the Union meeting, was not at all clear on the point. 'On Monday, February 12, Morris forwarded notice of the drivers' voted request for a "strike sanction " to the Union ' s International in Washington, through its Council in Philadelphia. The completed , printed and other stereotyped forms which attended the processing of the request during the following weeks contained references to a "strike date" and other references to "strike" as well as to "strike or lockout date " so that "out of work benefits" - that is, strike or lockout benefits - could be determined under the provisions of the International's constitution. The Respondent relies upon these references as showing that its drivers were regarded by the Union and its parent organization as being on strike on and after February 12 rather than locked out by the Respondent . In view of the ambivalence of the terms and the clear evidence of what actually happened at the drivers' Union meeting on February 10 as the drivers understood it, I have nevertheless found that the drivers did not vote to go on strike on February 10, nor were they on strike on February 12 or thereafter. PORT NORRIS EXPRESS CO. 689 therefore shut down his operation indefinitely until the situation should be clarified by the Union. But a fair appraisal of the pertinent evidence does not support Garrison's explanation of his actions. Garrison testified that when drivers Gould, Rickets, and Wynder8 came back to the terminal from the Union meeting on Saturday, February 10: I asked what the result of the meeting was. It seemed that they were quite confused on how they voted... . Now the extent of it was, according to my understanding, that they had a choice of striking then or coming back to work for a short period of time and pull the doors down on us after we got operating . . . I did not know what to do. I hung around the garage most of the Sunday. There were more [drivers other than the three already mentioned] - well, one or two others that came around - a lot of times the drivers did come around - sort of a half loafing place.. . . Whether it was John McPherson or Charles Hankins or ,Joe Carman, but I got the same story that this was the situation . . . I was quite confused on exactly where we did stand. Nobody had come in to offer to work. The few that I mentioned wanted to know what we were going to do. I could not answer. I did not know what we were going to do. . I knew that if we started up, the possibility was very great that we would be stopped from loading up at the sand plants as they were all the same union . The glass plant was union. But the testimony of drivers Rickets and Wynder was to their Saturday conversation with Garrison was quite different from Garrison's, and driver McPherson testified that he had not reported to Garrison what had happened at the Union meeting. I credit their testimony and upon that basis make the following findings: Garrison asked Rickets in the presence of the two other drivers on Saturday, February 10 about the meeting and "were the boys ready to go back to work." Rickets said they were and Garrison asked whether "everything was settled." Rickets said that he did not know. Garrison thereupon said that "if everything was not settled .. we would not work." According to his testimony, Garrison scheduled no hauls for his customers on Monday, Tuesday, or Wednesday (February 12, 13, or 14) because he believed that at their Union meeting on Saturday February 10, the drivers might have voted to strike and shut him down either immediately or within a short time. Nor, for the same reason according to Garrison's further testimony, did he thereafter accept assignments from customers or schedule work for the drivers until the middle of April. And when the drivers came to the office on February 16 for the 2-days' pay due them from the preceding week, the Respondent's bookkeeper on instructions from Garrison insisted that they surrender their company gasoline credit cards and keys. Then , in mid-April, some of the drivers who had spoken with Garrison about coming back to work, accepted his suggestion that they "lease" trucks from the Respondent and, for about a week, they made several hauls for the Respondent as "lessee" operators. But it was not until these drivers and the rest of the drivers actually returned to work as employees on April 29 under the complete contract terms agreed upon by the Respondent and the Union on April 22, that Garrison 'Garrison referred to Mason's being there at the time. Apparently he was in error as to Mason, for, as I have found upon Mason 's testimony, he did not enter the terminal nor overhear Garrison 's conversation with the other three men. generally resumed the Respondent's operations and scheduled regular work for the men as employees. Between February 10 and April 29, Garrison had talked about the possibility of his resumption of operations and the men's working pending the completion of contract negotiations, not only with Morris and the other Union representatives at several of their bargaining meetings in March and on April 5, but also with a number of the drivers who had visited the Respondent' s terminal on Monday, February 12, and at various times after that. For, according to Garrison's own testimony, on Monday, February 12 and "a lot of times" during the entire period of the drivers' idleness, seven or eight of the drivers who "wanted to work the whole time" visited the terminal as "a sort of a half loafing place" and asked Garrison what "the situation" was; "what [Garrison] was going to do"; and "would they be able to go to work " According to Garrison, however, he did not construe these inquiries by the drivers as requests or attempts on their part to continue or return to work, since none of them thereby "directly" said he wanted to go to work, "offered" to -work, nor therefore "report[ed] . . . ready, able, and willing to work." In any event, it appears from the evidence, and I find, that Garrison told these men during these conversations that there was no work for them at the time and he did not know when there would be Two of the drivers (Samuel Mason and Charles Hankins) so testified. And Garrison himself in his running account as to what he said to the men and his reasons therefore, testified that when the men asked him "would they be able to go to work," he "asked them as many questions as they asked [him]," including "whether they could not have a vote and come back without any retaliation from the union . " because, as he told them, otherwise "it seemed impossible" to resume operations since "if [he] put a few men to work, [he] was positive that [the Respondent's operation] would be stopped." One further material finding of fact must be made upon the evidence in the present record. Upon a composite of the consistent and credible testimony of Morris and Garrison, I find that, in each of the March 5, 20, and 23 and in the April 5 bargaining meetings and thus during the period when Garrison was having the foregoing conversations with a number of the drivers as to when they could come back to work, the parties discussed, but could not agree upon the immediate return of the drivers to work, since the Union requested and insisted upon their immediate unconditional return pending continuing contract negotiations, whereas the Respondent (accepting a suggestion made by the Mediator to both sides on March 20) insisted that the men's immediate return be conditioned upon the Union' s agreeing that they would not thereafter strike except on 72 hours notice.' It thus appears from the evidence that, in the Respondent's meetings with the Union in March and on April 5, Garrison refused to resume operations and to permit the drivers to return to work immediately and unconditionally, for the same reason that he had' given individual drivers during the same period; i.e., fear of being shut down by a strike by the Union before contract negotiations should be completed. 'A careful consideration of Morris and Garrison's testimony supports and requires this general finding since it reveals no conflict in the testimony of these two men about this element of the case nor therefore any actual dispute about the positions taken by the Union and the Respondent with respect to the men's immediate return to work. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Conclusions Concerning the Lockout From the foregoing facts, it appears that the Respondent's drivers did not strike, and that the responsible cause for the drivers' not working and thus being idle from February 10 until the latter part of April was Garrison's persistent and clearly expressed refusal to schedule work for them because, in view of his refusal to consider and discuss the Union's contract proposal, he feared that they might strike and shut him down. For, as the evidence shows, neither the Union nor the drivers ever decided to strike, nor did they, or any of the drivers, withhold their usual services as employees of the Respondent. On the contrary, at their meeting on February 10, they decided that, despite the Respondent's blunt, threshold refusal to bargain, the drivers would continue to work for the Respondent and that possible future strike action would depend upon the outcome of the Union's further attempt to get the Respondent to bargain, as well as upon receipt of necessary strike authorization or sanction from the International. This was in fact the substance of the information given to Garrison by the drivers with whom he talked at the terminal on February 10, February 12, and on subsequent normal working days during the entire period of their idleness. But Garrison, in an apparent continuing fear of a strike which would shut him down, had not only taken the necessary steps before the Union meeting of February 10 to suspend the Respondent's operations after that date, but decided on and after February 10 to continue the shutdown until a contract settlement should actually be reached with the Union. Furthermore, both before and after February 10, Garrison made his intended course of action clear to the drivers, by his remarks to a number of them on Friday and Saturday, February 9 and 10; by his failure to provide the usual work schedules from which the drivers would ordinarily have received notice of their assignments on and after February 12; by informing seven or eight of the drivers (who, according to his own testimony, "wanted to work the whole time" and visited him at the terminal "a lot of times" on and after February 12 to ask him "would they be able to go to work") that he could not put them back to work because, if he did, "he was positive that [the Respondent's operations] would be stopped"; and finally by rejecting requests made by Morris, their Union representative, at the March and April 5 bargaining meetings that the men be permitted to return to work immediately and unconditionally, and insisting instead that the drivers' return be conditioned upon the Union's agreeing to give 72 hours notice of any strike in the future. From these findings, I conclude that at no time in the period from February 10 until the end of April 1968 were the men on strike, but that during this entire time they were "locked out" by the Respondent. The only question remaining is whether the Respondent's lockout of the drivers was an unfair labor practice or whether it was justified by Garrison's fear that otherwise the drivers would shut him down during bargaining negotiations by striking at a time most inconvenient for, and effective against, the Respondent. For the following reasons, I conclude that the lockout was Furthermore, in the absence of any indication of such a conflict or the inadequacy of the testimony of the two witnesses, neither the unavailability of the Mediator's testimony (see Statement of the Case , above) nor the understandable unwillingness of Attorney Davidow to testify because of his status as trial counsel, has prejudiced the Respondent 's case. an unfair labor practice and was not justified either by the Respondent's fear of a strike or by any other reason appearing in the record. Under the decisions, an employer may lock out his employees to support his legitimate bargaining position in current negotiations with their union, even though an impasse in bargaining has not been reached, provided there is no motive on his part "to discourage union activity or to evade bargaining."10 Therefore, if it had appeared from the evidence in the present case merely that the Respondent locked out the drivers in anticipation of a strike during the Respondent' s bargaining with the Union in good faith on all contract issues, the lockout might well have been a legitimate and justified tactic in support of the Respondent' s bargaining position. But this was not the situation. For, as I have found, the Respondent had refused to bargain with the Union on the Union's contract proposal even before it locked the men out and it continued its illegal refusal to bargain throughout the earlier and greater period of the lockout. Under the circumstances, it appears, and I conclude, that the Respondent's lockout of its drivers on and after February 12, 1968, and until April 29, 1968, was not simply motivated by a fear of their striking at an inopportune time and by a desire to support a legitimate bargaining position in negotiations with the Union, but was motivated by a desire to discourage the drivers' support of the Union and of evading its own bargaining obligation. Accordingly, I conclude that the Respondent's lockout of the drivers from February 12 until April 29, 1968, constituted such discrimination against the drivers with respect to their tenure of employment for the purpose of discouraging their membership in, and support of, the Union in its bargaining demands, as to be an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act." IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. "See the decisions of the Board in The Evening News Association, 166 NLRB No. 6, and Darling and Company, 171 NLRB No. 95, in their development of the general principles laid down by the Supreme Court in American Shipbuilding Company v. N.L.R B., 380 U.S 300. "See American Stores Packing Co., 158 NLRB 620, which presented a similar set of facts with respect to the employer's refusal to reinstate strikers unless their union restricted the scope of their bargaining demands, and in which the Board concluded (at 623) . [w]e find that the Respondent locked out its employees, and refused to reinstate them not for "the sole purpose of bringing pressure to bear in support of [its) legitimate bargaining position," but rather as a means of evading its duty to bargain by attempting through coercive pressure on the employees to compel union acquiescence in Respondent's unlawful restriction of the scope of bargaining Accordingly, we conclude that the February 23 lockout and the March 22 refusal to reinstate were not lawful lockouts under the Supreme Court' s holding in American Shipbuilding and that the Respondent by engaging in such conduct violated Section 8 (a)(3) and (1) of the Act. PORT NORRIS EXPRESS CO. 691 V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent committed unfair labor practices violative of Section 8(a)(1) and (3) of the Act by locking out its drivers on February 12, 1968, and not recalling them until April 29, 1968, 1 will recommend that the Respondent make said drivers whole for any loss of earnings that they may have suffered by reason of the lockout, by payment to each of them of a sum of money equal to that which he would have earned as wages during the period of the lockout, together with interest thereon at the rate of 6 percent per annum to be computed and paid in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and in Isis Plumbing & Heating Co., 138 NLRB 716, less his net earnings during said period. Having found that the Respondent also committed an unfair labor practice by refusing to bargain with the Union in the period from February 6 to April 5, 1968, I will recommend that the Respondent, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate bargaining unit and embody in a signed agreement any understanding reached. The unfair labor practices found to have been engaged in by Respondent are such a character and scope that, in order to ensure Respondent's employees of their full rights guaranteed them by the Act, I will recommend that the Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Teamsters Local Union No. 676, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union), is a labor organization within the meaning of the Act. 2. Port Norris Express Company, the Respondent herein, is an employer engaged in commerce within the meaning of the Act. 3. At all times material herein, all truckdrivers of the Respondent employed at its Port Norris premises, excluding office clerical employees, guards and supervisors as defined in the 'Act, constituted, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been, and now is, the exclusive collective bargaining representative of all employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing, from February 6, 1968, until April 5, 1968 to bargain collectively with the Union as the exclusive representative of all the employees in the aforesaid appropriate unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By locking out and thereby discriminating in regard to the hire and tenure of its truckdrivers from February 12, 1968, until April 29, 1968, thereby discouraging membership in the Union and interfering wrath, restraining, and coercing them in the exercise of their rights guaranteed in Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, Port Norris Express Company, a New Jersey corporation, its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Locking out any of its employees for reasons proscribed by the Act or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization to form, join or assist the Union or any other labor organization of its employees, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. (b) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment, with the Union as the exclusive representative of all employees in the following appropriate unit: All its truckdrivers employed at its Port Norris premises, excluding office clerical employees, guards and supervisors as defined in the Act. (c) Discouraging membership in the Union by locking out its truckdrivers, or by discriminating in any manner in regard to their hire or tenure of employment or any term or condition of their employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Make whole all the truckdrivers represented by the Union for any loss of earnings they may have suffered by reason of being locked out by the Respondent from February 12, 1968 until April 29, 1968, inclusive, in the manner and to the extent set forth in the section of this Decision entitled, "The Remedy " (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all records necessary for the determination of the amounts due to the said truckdrivers under the Order herein. (c) Upon request bargain collectively with the Union, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment and other conditions of employment, and embody in signed agreements any understandings reached. (d) Post at its terminal in Port Norris, New Jersey, copies of the attached notice marked "Appendix ."i i "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board's Order is enforced by a decree of a United States 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of said notice, on forms provided by the Regional Director for Region 4, shall, after being duly signed by Respondent, be posted for 60 consecutive days thereafter in conspicuous places including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced or covered by any other material. (e) Notify the Regional Director for Region 4, in writing, within 20 days from the receipt of this Decision and Recommended Order what steps the Respondent has taken to comply herewith.' Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 4, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT unlawfully lock out any of our employees or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Teamsters Local Union No. 676, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT refuse to bargain collectively with the above-named labor organization as the exclusive representative of all employees in the truckdriver unit which has been found to be appropriate with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment. WE WILL make whole all the truckdrivers whom we unlawfully locked out from February 12, 1968, until April 29, 1968, for any loss of earnings suffered by them as a result of our discrimination against them, together with interest at the rate of 6 percent per annum. All our employees are free to become or remain members of the above-named Union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the amended Act We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. Dated By PORT NORRIS EXPRESS COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions they may communicate directly with the Board' s Regional Office, 1700 Bankers Securities Building, Walnut & Juniper Streets, Philadelphia, Pennsylvania 19107, Telephone 597-7617.