Newport Concrete Co.

TOBASCO PRESTRESSED CONCRETE CO. 745 Tobasco Prestressed Concrete Company, a Division of Newport Concrete Company, Newport Concrete Company, and The Bethel Supply Company and Truck Drivers, Chauffeurs and Helpers Local Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 9-CA-4909 June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On April 25, 1969, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of those allegations of the complaint. Thereafter, the Respondent and the General Counsel filed exceptions and supporting 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 as modified herein. The Trial Examiner correctly states that the record does not show the exact relationship between J&L Truck Leasing Company and Respondent. Based on this lack of information the Trial Examiner did not make any finding with respect to employee George Taylor's (and Howard Ingram's) arrangement with J&L. In our opinion, the evidence establishes that Respondent unilaterally bargained The Trial Examiner finds that the Respondent violated Sec 8(a)(5) and (1) by discussing and unilaterally entering into leasing agreements with individual truckdrivers . We agree. Our dissenting colleague would not find a violation as to Respondent's leasing arrangements with individual employees because the employees involved initiated the negotiations and there is no evidence that the arrangement was to continue after the strike In our opinion , Respondent violated the act by engaging in bargaining with individual employees regardless of who initiated the discussions . Medo Photo Corp v N L.R B 321 U S 678 Also, we note that there is no evidence that the arrangement was to terminate after the strike was over Inasmuch as the remedy is unaffected, we do not find it necessary to decide whether the same conduct establishes that Respondent on and after the date of the signing of these leases was acting in bad faith at the bargaining table with employees Taylor and Ingram in violation of Section 8(a)(5) and (1). In late August 1968, Taylor was invited to the home of Respondent's chief stockholder and manager, Walter Kunz, by Kunz's son-in-law, Larry Dixon. Present were Kunz, Dixon, Ingram and Taylor. Kunz told Taylor and Ingram that he had leased trucks to J&L, and Dixon asked Taylor if Taylor wanted to drive for him. Taylor said he would. Approximately September 1, 1968, Taylor went to work for J&L driving a leased truck and hauling Respondent's products, apparently under essentially the same conditions as prior to the strike. Ingram also went to work for J&L. While an employer may, in order to continue its business during a strike, subcontract work to subcontractors without having previously discussed the subcontracting with the Union,' it cannot then negotiate with its own employees in an effort to have its employees go to work for the subcontractor. A transaction of this type results in the subcontractor being a mere conduit for the employer's efforts to unilaterally change the terms and conditions of employment, and thereby undermine the Union's objections at the bargaining table.' In our opinion, Respondent's unilateral negotiations with Taylor and Ingram, seeking as it did to have these two employees go to work for an employer to whom Respondent had subcontracted its struck work," constituted bargaining with individual employees at a time when Respondent was clearly obligated to bargain with the Union, in violation of Section 8(a)(5) and (1) of the Act. As noted above, the exact relationship between Respondent and J&L Truck Leasing is unclear. Accordingly, we shall not order Respondent to rescind its leasing agreement with J&L. However, we shall order Respondent to cease and desist from negotiating with its striking employees concerning their employment with the subcontractors Respondent has hired to perform its struck work. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and orders that the Respondent, Newport Concrete Co., and its subdivisions, Newport Concrete Company and Bethel Supply Company, its officers, agents, successors, and assigns, shall take the action set 'Empire Terminal Warehouse Company. 151 NLRB 1359, affd. 355 F.2d 842 (C A D.C.); Shell Oil Company. 149 NLRB 283, 285 'Our opinion would not be different even if the employee was hired under exactly the same terms and conditions as the employee had worked under at the time of the strike. A change of employer is a sufficient change to justify a finding that the employer had negotiated a unilateral change in the terms and conditions of employment. 'Although the record is not clear, because of what in fact subsequently happened, we infer that when Respondent leased the trucks to J&L it did so with at least an implied understanding that the trucks would be used to transport Respondent's products 177 NLRB No. 101 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forth in the Trial Examiner's Recommended Order, as herein modified. 1. Delete paragraph 1(a) and substitute the following: "(a) Dealing directly and individually with employees in the aforesaid appropriate units concerning leasing of Respondent's trucks to the said employees, concerning their employment by subcontractors hired to preserve struck work and also concerning wages, benefits, and other conditions of employment." 2. Delete the second indented paragraph of the Appendix attached to the Trial Examiner's Decision and substitute the following: WE WILL NOT deal directly and individually with employees in the aforesaid appropriate unit concerning leasing of trucks, concerning employment with subcontractors hired to preserve struck work, or concerning wages, benefits, or any other terms or conditions of employment. MEMBER ZAGORIA, dissenting in part: On August 3, 1968, Respondent's employees commenced an economic strike. Thereafter, sometime in the latter part of August, Henize, one of the striking truckdrivers, heard that a company in another city had leased its mixer trucks to drivers. He discussed this possibility with several of Respondent's drivers, because, according to Henize's testimony, "they was in the same fix I was in, they was trying to make a living, and we decided we wanted to work." Thereafter, Henize approached McElfresh, a dispatcher at Respondent's Bethel terminal, and also Robinson, manager of the Bethel Supply division, about the possibility of such an arrangement. McElfresh, after checking with Respondent, told Henize that anyone who was interested should attend a meeting at the Bethel terminal. At the meeting, held September 6, several of the drivers signed "lease" arrangements with Respondent, permitting them to work for the duration of the strike.' There is no evidence that this lease arrangement was to be permanent; i.e., that it was to continue after the strike. I cannot agree that Respondent's actions, detailed above, were violative of the Act. It is clear that employers may attempt to continue operations during a strike, and that employees have a right, under Section 7, to refrain from engaging in concerted activities. In my view, the Respondent and the returning strikers were within their rights in entering into the lease arrangement for the duration of the strike. To say that Respondent solicited the drivers is to overlook what actually happened: it was the drivers who approached Respondent about returning to work. And to say that the lease arrangement represented a "unilateral change" by 'Though the fact is not determinative, the record indicates that one of the drivers asked at the meeting about his union status, and was told he could continue to be a union member, and send his dues directly to the Union Another of the drivers who accepted the lease arrangement testified he continued to be a paid-up union member at all times Respondent is to ignore the fact that, so far as one can tell from the record, the arrangement was merely temporary, to last until the strike was over. I would find no violation as to these arrangements.' The situation is different, I believe, as to the J&L Truck Leasing incident. As to that, it was Respondent who invited strikers Taylor and Ingram to the home of Walter Kunz, Respondent's chief stockholder and manager, and stood by while Taylor was asked whether he might want to drive a truck which Respondent had leased to J&L, owned by Kunz's son-in-law. I would find this to have been improper solicitation of strikers by Respondent, and, as found by my colleagues, a violation of Section 8(a)(5) and (1) of the Act. Since I find that only two strikers were improperly solicited by Respondent, I find the evidence insufficient to establish that the strike, which began as an economic strike, was converted to an unfair labor practice strike, and I would not, therefore, adopt the portion of the Trial Examiner's Recommended Remedy relating to that finding. `As the Trial Examiner found, the parties continued negotiations and, shortly after the hearing in the instant case was over , on March 17, 1969, executed collective-bargaining agreements for the Respondent's two divisions. 'Medo Photo Corp. v. N L R B, supra, cited by the majority, seems to me to involve a totally different set of circumstances. In Medo, which did not involve a strike, the employer bargained directly with a group of 12 employees for permanent wage increases , after which the employees disavowed interest in the Union and the employer withdrew recognition. That conduct by the employer was obviously in violation of its duty to bargain with the exclusive bargaining representative , and appeared to be an effort by the employer to undermine the union . There was no necessity in Medo for the Board or courts to balance, along with the employer's duty to bargain, its right to continue operations during a strike, and the right of employees, under Sec. 7, to work during the strike Compare Hawaii Meat Co v NLRB , 321 F 2d 397 (C.A. 9) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed on October 9, 1968, by Truck Drivers, Chauffeurs and Helpers Local Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Charging Party or the Union, the Regional Director for Region 9 of the National Labor Relations Board, herein called the Board, issued a complaint on December 26, 1968, on behalf of the General Counsel of the Board against Tobasco Prestressed Concrete Company, a Division of Newport Concrete Company, Newport Concrete Company, and the Bethel Supply Company, herein collectively called the Respondent and individually called Tobasco, Newport and Bethel, alleging violations of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer to the complaint, the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, the hearing in this case was held before me in Cincinnati, Ohio, on February 17 and 18, 1969. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to TOBASCO PRESTRESSED CONCRETE CO. 747 present oral argument, and to file briefs . Briefs were filed by the General Counsel and the Respondent. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Newport Concrete Co., is an Ohio corporation with its office and principal place of business at Cincinnati, Ohio. It has three main divisions, Tobasco, with its place of business located at Tobasco, Ohio; Bethel, whose place of business is located principally at Tobasco, Ohio and Newport, located at Newport, Kentucky. All three branches or divisions are engaged in the manufacture and sale of either precast, prestressed concrete products or ready-mixed concrete. Tobasco, Newport and Bethel, all divisions of Newport Concrete Co., constitute a single-integrated business enterprise with the board of directors of Newport Concrete Co., formulating and administering a common labor relations policy for each of the divisions. During the 12-month period immediately preceeding the issuance of the complaint herein, a representative period, Tobasco, Newport and Bethel, individually and collectively, in the course and conduct of the integrated business, had an indirect outflow in interstate commerce of goods and materials of a value in excess of $50,000, which they sold and shipped to firms, each of which, in turn , had a direct outflow of goods and materials in interstate, valued in excess of $50,000 annually, which they sold and shipped directly across State lines from their point of origin. It is admitted, and I find, that Newport Concrete Co., and its divisions, Tobasco, Newport and Bethel constitute an employer as defined in Section 2(2) of the Act engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. Il. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is and has been a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Issues In June 1968, the parties began to meet to negotiate for a new collective-bargaining agreement or agreements, their old contracts with Newport and Bethel being due to expire on July 1. The events that occurred thereafter in the bargaining, an eventual strike and an attempt by the Respondent to keep its business going by unilaterally subcontracting unit work to the striking employees constitute the basis for the charges and the complaint filed herein. Essentially the complaint alleges that the Respondent unlawfully refused to bargain with the Union by subcontracting unit work to the striking drivers thereby bypassing and undermining the Union; directly negotiating with employees regarding a proposed health and welfare plan and by engaging during negotiations generally in bad-faith bargaining. The Respondent's answer denies these charges, claiming that it was the Union which refused to enter into good faith negotiations and the Respondent which submitted four separate contract proposals whereas the Union remained adamant and refused to make any concessions regarding its original and only proposal. Thus the issues shaped by the pleadings are: 1. Did the Respondent's action in unilaterally negotiating subcontracting leases with individual employee strikers violative Section 8(a)(5)? 2. Did the Respondent, by unilaterally negotiating with individual employee strikers concerning a proposed health and welfare insurance program violate Section 8(a)(5)? 3. Did the Respondent by attempting to have union representatives submit two so-called separate contract proposals to the union membership for separate voting and thereafter by withdrawing its contract proposal and refusing to offer other proposals engage in bad faith bargaining violative of Section 8(a)(5)? 4. Did the Respondent's original objection to one of the individuals who attended the first bargaining meeting on behalf of the Union constitute a violation of Section 8(a)(5)? B. The Events Until December 28, 1967, Newport and Bethel were separate corporations which were for all intents and purposes solely owned and managed by Walter Kunz. On December 28, 1967, an agreement of merger was entered into between the two corporations. The single corporation thus formed is known as Newport Concrete Co. In 1965 the Union entered into two separate bargaining agreements, one with Bethel and one with Newport for the truckdrivers of each corporation. The only differences between the two agreements were the reporting times of the drivers and the Bethel contract contained a so-called management rights clause. On July 1, 1968, these contracts expired. On June 8, 1968, before the expiration of the contracts, the members of the Union, who were employed by Bethel and Newport, met and voted to present to the Respondent as the Union's proposal, a contract between the Union and the Greater Cincinnati Ready-Mixed Concrete Producers to which contract the Respondent has never been a party. On June 20, the first meeting to negotiate a new agreement between the Union and the Respondent was held. Representing the Union at that meeting were George Starling, the president of the Union, and Glenn Laws, a committee man representing the Newport Drivers. Representing the Respondent, were Joel D. Newman, assistant to President Walter Kunz and Donald E. Calhoun, counsel to the Respondent. At the outset of the meeting, the Respondent's representatives objected to the presence of Glenn Laws without the attendance of John Sheets, who was the steward for the Bethel Drivers Union. When it was explained that Laws had been selected by both the Bethel and Newport Drivers to represent them at their negotiations, the objection to Laws was dropped and the matter was not brought up again. Respondent's momentary objection to Laws did not in any way hinder or delay the bargaining process. When the negotiating began at this meeting, Union President Starling presented Respondent's representatives with a proposed contract which was identical to the one entered into between the Union and Greater Cincinnati Ready-Mixed Concrete Producers. When presenting this 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposal, Starling made it clear that this was the contract that the employees wanted and which the Respondent would have to accept; that there would be no major variations from it. The parties then went over the proposed agreement item by item comparing it with the expiring Bethel contract. The Respondent's representatives asked that certain of the old items be included or substituted for items in the proposed agreement and the Union's representatives said they would take the matter under advisement. Nothing was finalized. At the close of the meeting, the date for the next meeting was fixed for June 28. On June 28, representatives of both parties met as planned and Calhoun presented to William O. Wilson, the Union' s business representative, and Laws, the Respondent's First proposed agreement for the Bethel drivers only. There was no discussion of the proposal and Williams stated it would be taken under consideration. On July 1, by letter, the Respondent made certain corrections in its proposal. On July 2, the Union's members, who were Respondent's employees, met and after going over the Respondent's proposal, rejected the same by vote of the members present. The next meeting was held on July 16. Present for the Union were Wilson, Laws, and Sheets, steward for the Bethel drivers. In attendance for the Respondent were Calhoun and Newman. The parties discussed the rejected first Bethel proposal item by item, each of the parties indicating which items were acceptable and which items were not acceptable. Among the items discussed were the filling of bins of aggregate at the Respondent's yards, run trips, health and welfare, arbitration, which the Union did not want with regard to violations of the contract, a no-strike clause which the Union rejected, pensions and other items. At the close of the session the parties agreed that if a contract could be settled, the wage provisions would be retroactive to July 1. A letter agreement to this effect was executed by Kunz several days later, which agreement was made subject to the employees not going on a strike. On or about July 26, the Respondent sent the Union a second Bethel proposal and a proposal for Newport. These proposals differed from each other only with respect to the drivers' reporting times. On July 30, the union membership rejected both of these proposals. On August 3 Respondent's employees at both Newport and Bethel went out on strike. Around the same time, Wilson and Calhoun had a telephone conversation in which Wilson informed Calhoun that the membership had rejected the second Bethel proposal and the Newport proposal. Wilson also told Calhoun that it was a shame the strike had to occur because there was so little difference between the positions of the parties. Again on August 12, Wilson called Calhoun and, among other things, suggested that they get together. On August 21, Calhoun, by letter delivered to the Union the third Bethel proposal. In his letter, Calhoun indicated that he was preparing a second Newport proposal and when it was completed he would inform the Union. On August 23, at a meeting conducted by Wilson, the drivers of both Bethel and Newport, considered the third Bethel proposal submitted by the Respondent. The proposal was discussed item by item. After this, Wilson suggested to the assembled drivers that since Calhoun had indicated a second Newport proposal was forthcoming, action on the third Bethel proposal be postponed until the Newport proposal was received. This suggestion was adopted by the drivers and voting on the third Bethel proposal was deferred. On August 27, Calhoun, by letter, withdrew the third Bethel proposal stating as his reason that the Union had refused to allow the drivers to vote on the same.' On September 4, 1968, a meeting was held between the parties in the presence of a Federal mediator. Attending the meeting with the Federal mediator were William O. Wilson, Glenn Laws, John Sheets, and Mr. Calhoun. After the discussion had started George Starling came in. Thereafter Calhoun and Starling and the Federal mediator had a meeting separate from the other meeting. Starling, at this submeeting, stated that the men wanted the same contract that the Greater Cincinnati Ready-Mixed Concrete Association had signed and that they were not going to accept anything else. Thus, Starling reiterated the stand that the Union took at the very first meeting between the parties on June 20. Calhoun explained to Starling that the Company had lost money, that they could not afford to pay the same wages and fringe benefits as the Association because their equipment was old and they could only haul 4 or 5 yards of concrete at a load while the other companies were able with their equipment to haul 12 to 15 yards at a load. He explained that it costs as much to haul 4 yards of concrete as it costs to haul 16 yards. Starling answered that Bethel could afford to sign the Association contract because Bethel charged for ready-mix concrete as much as did the members of the Association. The meeting ended with no progress being made.' Thereafter on September 9 Calhoun sent a letter to Starling stating why the Respondent could not accept the Association contract proposed by the Union. Calhoun said that because the Union would not accept any contract that provided less than that which the Union negotiated with the Association, there was nothing that Bethel or Newport could offer that would be acceptable to the Union. The foregoing was the last of the communications between the parties prior to the filing of the charge in the instant proceeding. Thereafter several meetings were held and there was some exchange of letters between the parties. Some time later, specifically on November 26, 1968, Bethel presented the Union with its fourth contract proposal. Finally, after further negotiations and meetings, on March 17, 1969, after the hearing in this proceeding was completed, the hearing in this proceeding was completed, the Respondent and the Union entered into separate bargaining agreements with Bethel and Newport. Thus, collective bargaining has resulted in contracts between the parties.' In August 1968, two of the Bethel drivers expressed to an official of the Respondent that they were curious to see the health and welfare plan which was being offered by the Respondent and which was one of the stumbling blocks in the negotiations. In accordance with this request, Newman invited the employees, George Taylor and Howard Ingram , to meet with the representative of the insurance company which was to provide the health and welfare plan. Taylor and Ingram were shown the proposed health and welfare insurance program and Taylor was All of the foregoing from credited portions of the testimony of Wilson, Calhoun, and Newman, and from documentary evidence received 'From the uncontroverted testimony of Calhoun which I credit 'The latter information regarding the ultimate signing of agreements between the Respondent and the Union has been received by the Trial Examiner administratively. TOBASCO PRESTRESSED CONCRETE CO. 749 given a copy which, sometime later, he showed to some of the other employees . Taylor was asked by Newman what his opinion of the plan was . So far as the record shows, there was no attempt by the Company to negotiate this plan separately with Taylor and Ingram.' During the latter part of August, employee Bill Henize who had been a truckdriver for Bethel before the strike, heard about leasing trucks from a man who worked in another city for a company that leased mixer-trucks to drivers. Thereafter, on August 30, the employees who were on strike met at the Union hall to discuss the third Bethel proposal made by the Respondent . After it was decided not to vote on this proposal, Henize spoke to employees Jim Fannin, Arnold Schirmer, and Charlie Kunz about the idea of leasing mixer-trucks from Bethel. These employees approached McElfresh , a dispatcher at the Bethel plant, and asked the latter whether he thought the Company would lease them mixer-trucks. Henize also spoke to Ernie Robinson , a supervisor for the Respondent. In reply to Henize' request, around September 6, McElfresh told Henize that if the men were interested in leasing trucks to meet in the office at Bethel. Other employees were evidently also invited. The meeting with the employees with regard to the leasing of trucks was held on September 5 or 6 at the offices of Bethel. Present were striking employees Schirmer , Fannin, Kunz, the two Wedmores, Ronald and Robert, Gregory, and Meeker . Representing the Respondent were Joel Newman and Walter Kunz. Also present were the two Bethel dispatchers , McElfresh and Boggs. The Union was not represented at this meeting since it was not notified and none of its representatives were in attendance . Either Walter Kunz or Joel Newman explained Respondent's proposed leasing arrangement. The drivers were told that a company would be created that would lease the trucks to the employees who wished to enter into a leasing arrangement; that the employees would then be able to lease vehicles from this concern, pick up cement from Respondent Bethel and deliver that cement to customers. There is some dispute as to how the leasing arrangement was explained to the drivers. Witnesses Ronald Wedmore and Sam Gregory testified that they were told that their earnings would be determined by taking a percentage of the price for which the cement was sold ; that they would purchase their cement only from Bethel, or Respondent connected companies, and sell it to their customers; and that they did not have to pay out any monies to Bethel Leasing Company, the company that was to be formed, and that the leasing was only a paper arrangement. Employee Henize testified they were told that they could lease the trucks from Bethel Leasing and that the drivers who leased the trucks would buy their concrete from Bethel at a set price to them and could sell it to whatever customer they could for a suggested price. Also he testified that they were to be charged for maintenance of the truck which included the cost of gas and oil. They were further told that the amount that they sold the concrete for over and above the price charged by Bethel plus the maintenance costs would be given to the drivers as their profit. At the end of each week the leasing company would supply them with a written settlement sheet showing the amount of the total sales and the amount of total purchases less the maintenance and the 'From the uncontroverted testimony of Taylor and from his admissions on cross-examination. balance that was left over for the driver. This would be paid to them. I credit the testimony of Henize in this respect because a reading of the lease which was eventually entered into between the drivers, who desired to enter into the leasing arrangement, and Bethel Leasing Company contained the arrangement described by Henize. On September 7, 1968, or thereabout, Henize, Schirmer, Fannin, Meeker, and Robert Wedmore signed lease agreements. While there is some contradiction in the record as to how the leasing arrangement worked in practice, I find that the employees who signed leasing agreements purchased the materials for the ready-mix concrete from Bethel at an f.o.b. price at Bethel's plants, that the ultimate customers were billed in the names of the drivers; that this billing was at prices actually fixed by arrangement between the drivers and Bethel ; that the, monies collected for the sale of the ready-mix concrete to' the ultimate customers were given to Bethel and that these accounts receivable were credited to the lessee's account for material purchased, gasoline and oil charged and any cost of maintenance. At the end of each week, Bethel gave to the lessees a settlement sheet showing what the individual licensee purchased from Bethel, what receipts were received by the licensee from the customers and what the gas, oil, and maintenance fees were that were charged to the lessees. The difference between the cost to the lessees of the ready-mix concrete plus the maintenance gas and oil, were subtracted from the amount the lessees received from the ultimate customer and the difference was paid to the lessees.' However, I also find that the customers to whom the lessee-drivers sold the ready-mix concrete were, except in very rare instances, former customers of Bethel. I also find that except for the manner in which the orders were sent out, that is the first driver in at night being the first one out in the morning, the way in which the trucks and drivers were dispatched to customers jobs was the same as that which prevailed before the strike. I find further that the dispatches were made by the very same dispatchers who dispatched the truckdrivers before the strike. Thus, I conclude that although the leasing arrangement on paper showed that the drivers were now independent contractors and that they were, in fact, responsible for the maintenance and the upkeep of their trucks and purchased concrete and resold it, in actual result, the manner of operation was very much the same before the strike and after the leasing arrangement commenced. A somewhat different arrangement was made for drivers Taylor and Ingram. Toward the end of August 1968, Larry Dixon, the son-in-law of Walter Kunz, and owner of a truck leasing firm by the name of J & L Truck Leasing, invited Taylor to Walter Kunz' home. At Kunz' home Taylor entered into a discussion with Walter' Kunz, Larry Dixon, and Howard Ingram, another of Bethel's drivers. Kunz told Taylor and Ingram that if they wanted to work they could operate ready-mix trucks which had been leased from Bethel to J & L Truck Leasing. Taylor accepted the offer. When he went to work for J & L 'Accordingly, I do not credit the testimony of Robert Wedmore that he was paid wages determined by the yards of concrete he hauled . I do not credit his testimony that he never paid for gasoline oil or truck repairs even though the lease required such payments. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD truck Leasing he was dispatched to customers' jobs in the same manner as he had been dispatched when he was working for Bethel before the strike. His dispatchers were the same individuals working out of the same office of Bethel as they had been before the strike. It should be noted in connection herewith, that the Union was never notified about any proposed leasing arrangements utilizing vehicles previously operated by the Respondent.' With regard to the foregoing leasing arrangement, Joel Newmar .assistant to Walter Kunz, president of the oe.,t, testified that because of the strike, Bethel a large volume of its customers upon whom Be..,el depended to make a profit. He stated that the leasing of the mixers to Bethel's striking drivers was only for the purpose of helping the drivers economically and also to help reduce the loss Bethel was incurring by reason of the strike. C. Discussion and Concluding Findings 1. The appropriate units and the majority It is admitted and I find that all truckdrivers employed by Bethel, excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. It is further admitted and I find that all truckdrivers employed by Newport, excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Additionally, it is admitted, and I find, that the Union is the representative for the purposes of collective bargaining of the employees of each of the units described above and has been and is now the exclusive representative of all the employees in each of the said units for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment. 2. The objection to the Union's representative As heretofore set forth, at the outset of the first bargaining session held on June 20, 1968, the Respondent's representatives at first took exception to the presence of employee Laws because they were under the impression that he represented only the Newport drivers. However, once they were informed that the union membership had selected Laws as its representatives for both Newport and Bethel drivers, they immediately dropped their objections and no delay in bargaining was caused by this momentary objection. The General Counsel contends that such an objection, however momentary, constitutes a violation of Section 8(a)(5) of the Act. I do not agree in the circumstances of this case. The objection was but a fleeting one which was withdrawn immediately upon the explanation that Laws was authorized to represent both units of employees. Since there were two bargaining units involved, the Respondent's hesitancy with regard to Laws was reasonable and justified. Accordingly, I shall dismiss the allegation of the complaint which alleges that Respondent `All of the foregoing from the credited , uncontroverted testimony of Taylor. violated the Act by objecting to the Union's representative.' 3. The discussion of the health and welfare plan with employees As above detailed, sometime in August, George Taylor and Howard Ingram , both Bethel drivers, desired to learn the details of the health and welfare plan proposed by Bethel. In consequence of this request, Newman took Taylor and Ingram to the insurance agent for the company which was to insure the health and welfare plan and the details were explained to them. Additionally, a copy of this plan was given to Taylor. However, there is nothing in the record to show that any negotiations with regard to this plan were carried on between Ingram and Taylor on the one hand and the Respondent's representatives on the other. Indeed, if anything could be established by the facts presented it was that this meeting was for the purposes of information only and the mere fact that Newman or the insurance agent asked Taylor for his opinion did not constitute bargaining in any accepted sense of the word. Accordingly, I find and conclude that by discussing the health and welfare plan with Taylor and Ingram, Respondent did not enter into any bargaining relationship with them and did not, thereby, circumvent the Union in any way. I therefore find that this action on the part of the Respondent's representatives did not constitute a violation of Section 8(a)(5) and shall dismiss that portion of the complaint which alleges a violation with relation thereto. 4. The leasing arrangement The issue regarding the leasing of the trucks to the striking Bethel drivers, the facts of which arrangement are heretofore recited, is whether the unilateral subcontracting constituted a violation of Section 8(a)(5) of the Act. That the subcontracting was carried out unilaterally there is no doubt. There is no evidence that Respondent's representatives made any attempt, at any time, to discuss the contemplated subcontracting plan with the Union. The General Counsel contends that the foregoing Respondent activity is violative of the Act, but the Respondent contends that the measures it took merely constituted lawful subcontracting of the type the Board and the Courts have sanctioned where an employer takes such action to protect and continue his business during an economic strike. The Board has held that an employer is not under a duty to bargain over temporary subcontracts necessitated by a strike, which subcontracting does not transcend the reasonable measures an employee may take to maintain operations during a strike.' However, in those cases the employers let subcontracts to independent contractors not in any way connected with the employers' operations. Such subcontracting, taken only for the purpose of continuing the employer's business during the strike was undertaken in a context free from any attempts to undercut the union involved. However, in the case at bar, the subcontracting, if indeed it was such, was undertaken with the individual 'Cf. Sears Roebuck and Co, Inc, 139 NLRB 471 , 475, Westinghouse Electric Corporation , 132 NLRB 406, 407 'Empire Terminal Warehouse Company, 151 NLRB 1359, affil. 355 F.2d 842 (C.A.D C.), Shell Oil Company, 149 NLRB 283, 285 TOBASCO PRESTRESSED CONCRETE CO. 751 strikers whose union was bargaining with the Respondent. These individuals can hardly be classified as private, independent contractors. The effect of the Respondent's leasing arrangement with the striking drivers was to bypass the Union, create dissension within the Union and among the strikers, some of whom either refused to enter into the leasing arrangement or were not asked, thereby dissipating in a coercive manner the concerted activities of the strikers and seriously undermining concerted union objectives at the bargaining table. Also, in discussing and entering into the leasing arrangement the Respondent bargained with individual employees at a time when the Respondent was clearly obligated to bargain with the Union. Such conduct violates the Act.' Accordingly, I find and conclude that by unilaterally entering into leasing agreements with individual truck driver-strikers, the Respondent violated Section 8(a)(5) and (1) of the Act. With regard to the arrangement between the J & L Truck Leasing Company and George Taylor who was hired by J & L but was dispatched by the dispatchers of Bethel, although the circumstances give rise to a suspicion that J & L was merely a bookkeeping arrangement by which the Respondent managed to operate with former Bethel employees, there is no showing on the record as to just what J & L's arrangement with the Respondent actually was. Under these circumstances, it cannot be determined whether Taylor actually worked for an independent contractor or continued to work for the Respondent or, at least, a partnership dominated by Walter Kunz, the present and chief stockholder of the Respondent. Accordingly, I make no finding with regard to Taylor' s arrangement with J & L Truck Leasing Company. 5. Conclusions as to the course of conduct of the bargaining As noted above, the Union, at the outset of the bargaining on June 20, in no uncertain terms, demanded of the Respondent that the contract to be negotiated would have to conform to that entered into between the Union and the Greater Cincinnati Ready-Mix Concrete producers. Despite this demand, the Respondent made not one, but four separate complete contract proposals with regard to Bethel and another proposal with regard to Newport. Nor did the Respondent, at any time, ever refuse to sit down and bargain with the Union. On the Union's side, although the Act does not require concessions by either Party, the Union's attitude can best be described as adament. The Union's representatives never moved far from their original demands and certainly the Union exhibited no spirit of compromise. Under the circumstances, therefore, the course of bargaining, at least insofar as the meetings between the Parties and the conduct at the meetings was concerned, evidenced no bad faith on the part of the Respondent. However, other circumstances must be considered in evaluating the Respondent's attitude and in ascertaining whether the Respondent at all times approached the bargaining table in good faith. It can be readily concluded that at least up until the time that the Respondent withdrew its third Bethel offer in August upon the Union's advice to the employees not to vote on that proposal until 'N L R B v Tulsa Sheet Metal Works, Inc, 367 F.2d 55, 59, enfg 149 NLRB 1487 Cf. Shamrock Dairy, Inc, 124 NLRB 494, 500, enfd 280 F 2d 665 the second Newport proposal was received, the Respondent did, indeed, bargain in good faith. Nor can it be concluded that the mere withdrawal of the third Bethel proposal evidences bad faith in view of the Respondent's assumption that the Union refused to permit the drivers to vote on the proposal. However, shortly thereafter on or about September 7, the Respondent entered into the leasing arrangement with the striking drivers. At that time Respondent must have known what the consequences of this action could and would be. For instance, the Respondent must be charged with knowledge that the dissension which such a unilateral arrangement would lead to could undermine the objectives of the Union at the bargaining table. Therefore, on the basis of the foregoing, I find and conclude that on and after September 7, 1968, the Respondent did not bargain in good faith with the Union. In this respect the Respondent has failed to comply with the good-faith bargaining requirements of the Act and thereby violated Section 8(a)(5) and (1) of the Act. 6. The nature of the strike On August 3, 1968, when the employees of Bethel and Newport went out on strike, the Respondent had committed no unfair labor practices. The strike was brought about purely by economic considerations. The nature of the strike continued to be economic until the time that the Respondent began dealing unilaterally with the striking drivers. I have heretofore found that this unilateral action which led to the leasing arrangement constitutes an unfair labor practice within the meaning of the Act. Although the economic considerations continued, nevertheless, the strike at that point became a dual purpose strike. Upon the subleasing, the commission of the Respondent's unfair labor practice caused the strike to take on the additional nature of an unfair labor practice strike, which unfair labor practices continued up to and including the time of the hearing herein. Accordingly, I find and conclude that from the date of September 7 when the leasing agreements were entered into, the strike became and continued to be an unfair labor practice strike and the strikers became and continued to be unfair labor practice strikers. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent, by subleasing its trucks to the striking drivers unilaterally refused to bargain collectively with the Union as the exclusive representative of its employees in two appropriate units, I will recommend that the Respondent, cease and desist therefrom. It will further be recommended that all 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subleasing agreements entered into between the Respondent and the former Bethel drivers be rescinded. However, the Respondent and the Union having entered into collective-bargaining agreements for Bethel and for Newport subsequent to the hearing herein, the usual bargaining order requiring the Respondent to bargain collectively until an agreement is reached will be omitted. Having found that the strike, which commenced as an economic work stoppage on August 3, 1968, was converted into an unfair labor practice strike on September 7, 1968, by the Respondent' s unilateral subleasing of the trucks to the striking Bethel drivers and the failure of the Respondent to bargain in good faith on and after that date, and was thereafter prolonged by Respondent's unfair labor practices, and having found that the employees who went on strike became unfair labor practice strikers as a consequence thereof, it will be recommended that the Respondent, upon application, offer the strikers reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing if necessary any person hired after the latter date, and make these employees whole for any loss of pay they may suffer as a result of Respondent's refusal to reinstate them upon such application. Upon the foregoing findings of fact and upon the entire record herein I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All truckdrivers employed by Bethel, excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9(b) of the Act. 4. All truckdrivers employed by Newport, excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times since June 20, 1968, and before, the Union has been the representative, for purposes of collective bargaining, of Respondent's employees in the units above-described. 6. By unilaterally entering into leasing agreements with its striking employees, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act and has thereby interfered with, restrained, and coerced employees in the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a) (1) thereof. 7. By failing and refusing to bargain in good faith with the Union on and after September 7, 1965, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. By engaging in the aforementioned unfair labor practices, the Respondent converted the Union's economic strike into an unfair labor practice strike on September 7, 1968, in consequence of which the employees who were on strike on and after that date retained their status as employees and have continued to be entitled to reinstatement on application to their former or substantially equivalent positions in preference to all employees hired since that date, if any. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce 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 this case, it is recommended that Newport Concrete Co., and its subdivisions Newport Concrete Company and Bethel Supply Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dealing directly and individually with employees in the aforesaid appropriate units concerning leasing of Respondent's trucks to the said employees and also concerning wages, benefits and other conditions of employment. (b) Refusing to bargain collectively with Truckdrivers, Chauffeurs and Helpers Local Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as exclusive bargaining representative of its employees in units herein found appropriate. (c) In any similar or like manner interfering with, restraining, or coercing its employees in the exercise of the right to bargain collectively through representatives of their own choosing. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Rescind and make void any and all leasing agreements made between the Respondent and any of the striking drivers who signed and entered into the leasing arrangements with the Respondent as hereinabove described. (b) Upon an unconditional offer to return to work, reinstate all employees in the unit who were on strike on and after September 7, 1968, to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, discharging if necessary to effect such reinstatement any persons employed subsequent to that date, and make each of such employees whole for any loss of pay he may suffer as a result of its refusal to reinstate him upon such application. The backpay, if any, will be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (c) Notify any and all employees in the aforesaid unit who were on strike against it on and after September 7, 1968, and who are now serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports and all other records necessary to analyze the amount of backpay that may become due under the terms of this Order. (e) Post at its plants at Tobasco and Cincinnati, Ohio, and Newport, Kentucky, copies of the attached notice marked "Appendix."" Copies of said notice, to be 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 TOBASCO PRESTRESSED CONCRETE CO. 753 furnished by the Regional Director for Region 9 shall, after being signed by its representative, be posted and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 9, in writing, within 20 days from receipt of this Decision, what steps it has taken to comply herewith." All allegations of the complaint herein upon which violations have not been specifically found above are hereby dismissed. Recommendations of a Trial Examiner" in the notice In the further event that the Board' s Order is enforced by a decree of the United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a 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 9 , in writing, within 10 days from the date of this Order, what steps the 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: Truck Drivers, Chauffeurs and Helpers Local Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is the exclusive collective-bargaining representative of our employees in the units described as follows: All truckdrivers employed by Bethel, excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act. All truckdrivers employed by Newport, excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act. WE WILL NOT deal directly and individually with employees in the aforesaid appropriate unit concerning leasing of trucks or wages, benefits, or any other terms or conditions of employment. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named labor organization 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 or 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 by Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. WE WILL upon their unconditional offer to return to work, reinstate to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, all our employees in the said appropriate units who have been on strike on and after September 7, 1968, and WE WILL, if necessary to accomplish this, dismiss any persons hired since that date. All our employees are free to join or remain members of Truck Drivers, Chauffeurs, and Helpers Local Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or to refrain from joining or remaining members thereof. Dated NEWPORT CONCRETE CO. (Employer) By (Representative) (Title) Note: Notify any of the above-described employees who may be presently serving in the Armed Forces of the United States of his or her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. Any questions concerning this notice may be directed to the Board' s Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3663.