J. Zembrodt Express, Inc.

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. Zembrodt Express, Inc. and Truck Drivers, Chauf- IT IS FURTHER ORDERED that the complaint in Case feurs and Helpers Local Union No. 100, affiliated 9-CB-1733 be, and it hereby is, dismissed in its with The International Brotherhood of Teamsters , entirety. Chauffeurs, Warehousemen and Helpers of Ameri- ca Truck Drivers, Chauffeurs and Helpers Local Union No. 100, affiliated with The International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and J. Zembrodt Express, Inc. Cases 9-CA-5498 and 9-CB- 1733 September 14, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 20, 1971, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that Respondent Company had violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent Union had not violated Section 8(b)(3) of the Act and he recommended that the complaint in Case 9-CB-1733 be dismissed. Thereaft- er, the General Counsel filed exceptions to the Trial Examiner's Decision in Case 9-CB-1733 only and a supporting brief. Respondent Company filed excep- tions to the Decision. Respondent Union filed a brief in answer to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding 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 these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, J. Zembrodt Express, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. I In adopting the Trial Examiner's finding that Respondent Union did not violate Section 8 (b)(3) of the Act, we do not pass upon his conclusion that the strike commencing January 7 , 1970, was protected under the rule of law enunciated in Mastro Plastics Corp. v N.L R B, 350 U S. 270. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in this proceeding was held before the duly designated Trial Examiner on March 11, 1971, at Cincinnati, Ohio, on two separate complaints issued by the General Counsel of the National Labor Relations Board. One complaint (Case 9-CB-1733), based on a charge filed on January 7, 1970, is against Truck Drivers, Chauffeurs and Helpers Local Union No. 100, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union Respondent or the Union. The other complaint (Case 9-CA-5498) rests upon a charge filed on January 19, 1970, and is against J. Zembrodt Express, Inc., herein called the Company Respondent, or the Company. Both complaints issued on August 31, 1970, and were that same day consolidated for single hearing. Both Respondents are charged with having unlawfully refused to bargain, the Company in violation of Section 8(a)(5) of the Act, and the Union in violation of Section 8(b)(3). Briefs were filed by the General Counsel and the Union. A statement of position was received from the Company, with no copies served on other parties, apparently because it participated in the hearing without counsel. It adds nothing of moment to the Company's position. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY J. Zembrodt Express, Inc., a Kentucky corporation, is engaged in the City of Cincinnati, Ohio, in the operation of an interstate trucking business. During the past calendar year, a representative period, it received revenues totaling in excess of $50,000 for services performed for customers located outside the State of Ohio. During the same period the Company had a direct inflow of goods and materials in interstate commerce valued in excess of $50,000, purchased and shipped to it at its Cincinnati location directly from points outside the State. I find that the Respondent Company is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED I find that Truck Drivers, Chauffeurs and Helpers Local Union No. 100, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and 193 NLRB No. 22 J. ZEMBRODT EXPRESS, INC. Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts in Brief The events that gave rise to this proceeding date back to 1967. At that time there was in effect the International Teamster Master Freight Agreement with the trucking industry generally throughout the country; it was dated April 1, 1967, and by its terms extended for 3 years to March 31, 1970. There were also then in effect the various regional supplements to the master contract, some for long haul and some for local cartage, each setting out direct economic conditions of employment for driver members of the Union. By the fall of the year the regional agreements had been reduced to printed booklet form, and in the Cincinnati area, where Zembrodt Express, the trucking company here involved, has long operated, it was called "National Master Freight Agreement and Central States Local Cartage Supplement," here sometimes referred to simply as the Master Agreement. Zembrodt, then with about 10 drivers, was nonunion and the Teamsters, through its Local 100, wanted him tojoin up and do business in keeping with its contract terms. The Central States Supplement then in effect in the area required a $3.66 hourly rate for city drivers; this was the classification of Zembrodt's employees. Zembrodt, of course, paid substantially less and was unwilling to assume the financial burden of the Teamster Agreements. There was a settlement, on November 11, 1967, and Mr. Zembrodt that day signed two separate contract docu- ments, each with Local 100. One was the Master Freight Agreement and Local Cartage Supplement, formal, printed, unchanged in any detail, including the wage rate, calling for $3.66 per hour then, $3.81 per hour starting on April 1, 1968, and $3.96 per hour beginning on April 1, 1969. The second agreement, called an addendum by the parties at the hearing, contains very precise economic conditions of employment and differs from the Master Agreement in money terms only. It reads as follows: J. ZEMBRODT EXPRESS, INC. 1218 PIKE STREET COVINGTON, KENTUCKY, 41011 I I November 1967 SUBJECT: Meeting held this 11th day of November 1967 at 7:35 A. M., at office of J. Zembrodt Express, Inc., 1330 West 7th Street , Cincinnati, Ohio. As per letter posted for this meeting, J. Zembrodt Express, Inc., employees and Teamsters Union, Local 100 representatives hereby agree to the following. With a vote of each they agreed to be Union, Card Carrying members only , and abide by the following agreements. I The Central States Area Local Cartage Agreement (what was called the Central States Supplement) provided for an increase on April 1, 1969, to $3.96 per hour, elsewhere the total agreement provided for a certain cost 127 J. Zembrodt Express, Inc., agrees to pay seven (7) paid Holidays, one (1) weeks vacation under three (3) years service, and all benefits in force at this time, either by participation or by monitary allowances, for a duration of one (1) year, ending in the year of the 1st of April 1968. Each employee to work eight (8) hours per day at $3.09 per hour. All over-time to be worked at straight time only. Seniorty to prevail. If any work available and any employee has not received his forty (40) hours pay, then this person or persons to be eligible for additional work. If all persons have forty (40) hours, then next employee according to seniorty wishing additional time, to be eligible for same. If none accept, outside personel to be hired. Any employee who may have a greivance at time of occurrance and does not file within seven (7) days after occurrance does not have any claims against the Company. We, the undersigned agree to the afore mentioned, to any and/or all company rules that may prevail from time to time, that are now in force or may be posted in the future. The Teamsters Union reserves the right at the end of one (1) year to re-open this contract with the employees of J. Zembrodt Express, Inc., March 31st 68 J. ZEMBRODT EXPRESS, INC. Robert J. Zembrodt Robert J. Zembrodt, Secy. Signatures to the aforementioned, attached to and made a part of on page number 2. In January 1968, only 2 months after the contracts were signed, the Union served notice of intent to renegotiate terms upon both the Company and the appropriate Federal and State mediation agencies. Zembrodt continued to pay the drivers $3.09 per hour, as called for in the addendum contract; for 20 months desultory and inconclusive communications were exchanged, the Union trying to prevail upon the Company to raise its wages and Zembrodt going through the motions but offering nothing substantial. In October 1969, Local 100 filed a grievance with the Local Joint Area Committee, as provided for in the Master Agreement. Zembrodt participated in the grievance procedure. Local 100 claimed Zembrodt was bound by the express wage terms of the 1967 Local Cartage Supplement and should pay $4.03 per hour, as called for in that agreement.' The trucking company of course disagreed and refused to pay the higher rate demanded. On January 2, 1970, the Company signed an individual contract with five of its then six or seven drivers, granting their direct request for pay increases and raising their rate from $3.09, or $3.17 per hour, to $3.60 per hour. The contracts were signed without the knowledge of the Union. On January 7, Local 100 struck the Company, all of its drivers joined the strike, and none of them has returned to work since. Zembrodt never ceased operations; it dis- charged all its striking employees and replaced everybody. of living adjustment which, by the fall of 1969, raised the local driver rates to $4 03 per hour 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And, presumably, it has gone back to its old way of operating nonunion B. The Questions to be Decided 1. The complaint against the Company alleges that when Zembrodt, in January 1970, signed individual contracts with its drivers, without notice to Local 100, it refused to bargain within the meaning of Section 8(a)(5) in that it bypassed the recognized bargaining agent. To this the Company's defense is that Ira Farmer, president of Local 100, had given Mr. Zembrodt permission to engage in this individual bargaining with his employees, providing he satisfied the demands of the drivers themselves. 2. The complaint against the Union alleges that when it struck on January 7 its strike was an unfair labor practice because the Union failed to serve the appropriate 60-day notices upon the Company and the Federal Mediation service, as required by Section 8(d) of the Act, resulting in an ultimate violation of Section 8(b)(3). The complaint specifies no more than that the contract then in effect covered the period "until March 31, 1970," and that the Union struck without giving proper notices. The clear implication of this language is that the Union sought to "modify" (see Section 8(d) of the Statute) the terms of the contract without waiting for the end of the 60-day cooling off period or expiration of the contract-"whichever occurs later." At the hearing the General Counsel said the purpose of the strike was "to enforce the terms and conditions of the National Master Freight Agreement which would have expired on April 1st of that year." It called for $4.03 per hour while the Company was paying only $3.09. The Union's defense is threefold . It contends that the strike was to protest the Company's unfair labor practice in contracting individually with the employees, conduct which it asserts made impossible any meaningful collective bargaining thereafter. It also argues that because the grievance panel had decided that the Master Agreement was then in effect and binding upon the Company, the Union had a right to strike in protest against the employer's refusal to abide by the contract terms. The Union's final defense is that it did, as required by Section 8(d) of the Statute, serve the appropriate notices. The theory of defense here is that the original notices served back in January 1968 opened the "contract" then in effect, that throughout the next 2 years there were continuous conversations between the parties, that their attempts to negotiate a new agreement failed, and that therefore the Union was privileged to resort to strike action in any event. 3. A subsidiary question is whether, as the Union contends, the grievance panel (Local Joint Area Commit- tee) in fact decided that the Master Agreement was in effect and binding upon Zembrodt in the fall of 1969 , even to the extent of obligating Zembrodt to pay $4.03 per hour. At the time Local 100 argued this was so ; indeed its grievance statement consisted precisely of this assertion . But if in fact Zembrodt having signed two agreements-one in critical part sharply in conflict with the other-could, as a matter of law, any grievance panel decide that one contract or the other was in fact in effect ? Or does the question of whether or not there was a contractural meeting of the minds stand upon evidence of a different kind? C. The Case Against the Company; Bargaining During 1968 and 1969; Individual Contracts There is ambiguity in the so-called addendum contract Zembrodt signed in November 1967. It says the "Union reserves the right at the end of one ( 1) year to reopen this contract ... ." It was signed on November 11, and this phrase suggests the agreed-upon wage-$3.09 per hour-would remain in effect at least until November 1968. A "March 31, 1968" date is then added in long hand to the typewritten clause of the contract . Did this mean the "(1) year" was intended to extend only from November 11 to March 31 ? The Master Agreement , also signed separately that day, contains no reopening clause, but it does provide for an increase in wages on April 1, 1968. Holding in abeyance for the moment exactly for how long a period the parties agreed the wages should stay fixed at $3.09, one thing is clear ; Zembrodt did agree to recognize Local 100 as his drivers' bargaining agent . Both the Master Agreement and the addendum were signed by Local 100 and by Zembrodt, and the addendum does provide the employees "agreed to be Union, Card Carrying members." Right or wrong, Local 100 sent notice to the Company in January 1968 to invite "renegotiating such contract." There were received in evidence copies of a number of communications exchanged between the parties during 1968 and 1969 in their continuing disagreement on what the wages should be, and while the exhibits are limited, in their language there is indication that more meetings and/or correspondence on the subject took place that can be counted by the exhibits themselves. In any event, on February 2, 1968, the Company responded to the Union's January reopening notice by offering to meet and to negotiate. The Union wrote on April 17, commenting that their meetings had been fruitless and reminding the Company of it's (the Union's) recommendation that Zembrodt give "the fifteen cents per hour increase which became effective under the Central States Area Local Cartage Supplement Agreement on April 1, 1968" (It will be recalled that the Master Freight Agreement and the Central States Supplement, which Zembrodt had also signed the year before , provided that the wage rates would go from $3.60 to $3 .81 per hour on April 1 , 1968; Zembrodt was still paying $3.09.) Three days later Zembrodt answered ; he refused to put the raises as demanded in effect and offered to meet again . There is a letter dated October 2, 1968, where Local 100 reminded the Company it was still waiting for some kind of an offer and threatened to bung the matter "to the attention of our Executive Board." Things seem to have remained quiescent until the fall of 1969. A September 25 union letter to the Company says Zembrodt had refused to keep a bargaining appointment, suggests September 29 as a date, and repeats the threat to go to the "Executive Board ." The parties exchanged notes on October 3, the Company again arguing it was prepared to meet, and the Union saying ". . . it is our intention to meet with you . . . for the purpose of negotiation [sic] wage rates, health and welfare and pension contributions ... . There are also two notices from the Union dated October 15; one is a letter saying the "problems could be resolved if you would agree to abide by all of the terms of the contract which you have signed, to wit, the National Master Freight J ZEMBRODT EXPRESS, INC. Agreement and the Central States Area Local Cartage Supplement Agreement." The other is a telegram reading. "You are requested to put into effect immediately all provisions of the National Master Freight in Central Area States Local Cartage Supplement Agreements.. . . ... A last response is from the Company, again offering to meet and confer On October 21, 1969, Zembrodt's employees filed a grievance under the provisions of the Master Agreement. It states their complaint as follows: We, the undersigned members of Local No. 100 and employees of Zembrodt Express, are not receiving the wages or other benefits provided by the National Master Freight and Central States Area Local Cartage Supplement Agreements to which our employer is signed. We are requesting that we receive all benefits of those agreements, exactly as written. The grievance was pressed by Local 100 at a regular meeting of the Joint State Area Committee on November 13, acting pursuant to the provisions of the Master Freight Agreement and Central States Local Supplements. Mr. Zembrodt appeared on behalf of the Company. The minutes of the meeting, as received by Zembrodt in the mail later, read in pertinent part as follows. CASE #9-LOCAL #100 (LESLIE ELDRIDGE, VICK BURNS, RALPH CAIN, ROBERT REINHART, CHARLES MITCHELL, BILL HENSLEY, JAMES REED, AL MAIROSE, EARL MERRELL, HORTON MCFARLAND VS. ZEMBRODT EXPRESS, INC Alleged Violation- Article The grievance reads as follows. The above-named individuals who are employed by Zembrodt Express state that they are not receiving the wages or other benefits provided by the National Master Freight and Central States Local Cartage Supple- mental Agreement to which the company is signator The grievants are requesting that the company immediately put such benefits into effect. DECISION: The Company is granted thirty (30) days to negotiate a contract By letter dated November 28, the Company offered to continue in effect to April 1970, the "Agreement dated November 11, 1967," and to grant an immediate wage increase to $3.17 per hour. It followed this with a second letter on December 19, saying that inasmuch as the Union had not responded to the wage increase offer, the Company was then and there putting the wage increase in effect. On December 23, the employees voted to reject the 8 cents per hour raise and the Union so advised the Company. Its letter again told the Company that the Union therefor insisted "that you abide by the terms of the National Master Freight Agreement and the Central States Area Local Cartage Supplement Agreement in its entirety." A week later, on January 2, 1970, Mr. Zembrodt met with all his drivers in his office and asked what their demands 2 Franks Bros v N L R B, 321 U S 702 1 find that all drivers employed by the Respondent , excluding all other employees and all 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 I also find that at all times since September 1969, and continuing to date, the 129 were. He testified it was the employees, through a driver named Mairose, who ran the shop as "boss" in his absence, who had asked to meet with him. Mairose, did not testify, but another employee, Merrell, said instead it was Zembrodt who invited him to the meeting. I rather believe Merrell; whoever started the thing, Zembrodt admitted having asked what the employees' demands were. One man said they must have at least 50-cents-per-hour raise and Zembrodt answered he would give them 51 cents, raising them from $3.09 to $3.60 per hour. They agreed and the next day all but one signed the written contract as prepared by Zembrodt. At the meeting one man suggested a union representative should be present, but Zembrodt told them it would not be necessary, because Farmer, the union president, had said: "what we do will be alright with him." Farmer denied at the hearing that he had given any such permission. I credit him. The Union had evinced too great and continuing an interest in these employees for me to believe it would at this late stage abandon them to their own devices. Moreover, Zembrodt as a witness did not himself testify to any conversations on this with Farmer. I find that by bargaining with its employees individually and directly, by granting them a direct increase in wages, and by executing an individual contract with them, all without consultation with the Union, the Respondent unlawfully refused to bargain with its employees' recogniz- ed exclusive representative and violated Section 8(a)(5) and (1) of the Act. Regardless of what contract was or was not then in effect, Zembrodt knew the employees were then represented by the Union. Indeed, he had never raised any question about the Union's status as exclusive bargaining agent; rather, he had consistently conceded its status throughout the events of the preceding months. To undo the coercive effects of its illegal act, the Respondent must be ordered to bargain with Local 100 now on behalf of its present driver complement. And it matters not that all the union drivers who worked for the Company in January 1970 may have been replaced in consequence of the stnke.2 D. The Case Against the Union Respondent There is a certain reality in the field of labor relations that cannot be ignored in this case, and that is dispositive of a major contention of the Union. What the Union wanted, be it the Teamster International or its Local 100, starting back in the fall of 1967 and continuing up to the date of the hearing in March 1971, was that Zembrodt Express Company fall in line with the wage provisions of its Master Freight Agreement and Central State Local Cartage Supplement. Membership in the Union was, of course, an important objective, as were also health and welfare and pension contributions. But what really counted was the wage rate, so disparate at the beginning between what Zembrodt was paying-$3.09-and what the Master Freight Agreement called for-$3.68-, which the major trucking companies had agreed to, and, presumably, were paying. Union has been the representative for purposes of collective bargaining of the employees in this unit, and by virtue of Section 9(a) of the Act has been and is now the exclusive representative of all such employees for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zembrodt saw it the same way. There is no indication that he was antiunion as such . No charge has been made that throughout the events-even during the entire 2-year period of 1968 and 1969 when he was paying $3.09 and the Master Agreement called for much more, to say nothing of the periodic increases for April 1, 1968, and April 1, 1969-this Company in any way resisted the demand that its drivers be "Union, Card Carrying members." What the Company did not want to do was pay the higher wages in 1968 as well as in 1969. And the Union, try as it did by letter and threats, could find no way to force its hand . This was a real labor dispute, a matter of bread and butter. Zembrodt agreed to go union in November 1967, but only on his economic terms. And the Union, with no other choice, agreed to accept him that way. The addendum, the second contract signed that day, in a substantive economic sense-and this is the essence of all collective -bargaining agreements-bore little relationship to the Master Agree- ment. With Zembrodt it was $3.09 per hour or no contract at all. And the Union's thinking was-as has been seen in case after case over the years-that a little bit at a time his rates might gradually be brought up to union scale. In fact, on April 17, 1968, when the Master Agreement was up to $3.81 per hour, the Union offered to settle if Zembrodt would go from $3 .09 to $3.24, by giving no more than the 15 cents raise called for in the Central States Local Cartage Supplement . Zembrodt remained adamant, for another year and a half. It was a play on words in the end to say that this Company was bound by the economic terms-wages and all-as spelled out in the Master Freight Agreement and Central States Supplement . And this is true whether it was Local 100 which said it-in some of its later correspond- ence to the Company-or the members of the Local Joint Area Committee (also called the grievance panel), the trucking company and union representatives who formally sat in judgment on the grievance late in 1969 . Zembrodt either was, as a matter of contract law, bound by the higher wage scale set out in the Master Agreement, and never mind the addendum, or it was not . No amount of charges and counter-charges, threats or otherwise, could change the legal effect of what contracts the Company had signed. Certainly, if wage rates of the Master Agreement were not binding upon Zembrodt because he signed something else, the grievance procedure, existing by virtue of the same contract, could hardly serve as a vehicle for determining the contract itself to be a lawfully binding instrument. And I think it clear on the entire record that all parties concerned knew this. A revealing document is the minutes of the action of the grievance panel as served upon the Company. The decision says no more than that the Company "is granted 30 days to negotiate a contract." The Union produced witnesses-trucking employer members of the panel-who testified that there was more to the decision. They said it was decided that in the event Zembrodt , within 30 days, did not come forth with some offer acceptable to Local 100, the Master Agreement "would apply" (testimony of James Young), "would take effect . .. the Union would have a recourse under the Central States contract" (testimony of Otto Budig), "turn to the Central States contract to apply the terms ..." (testimony of Robert Herzog). On the basis of this testimony the Union insisted at the hearing it was decided the Master Agreement was in fact binding upon Zembrodt, even to the $4.03 wage scale, and that therefore it had a right to strike to enforce its terms upon the Company, which was paying less wages than called for by the contract . But the testimony is unconvincing on its face. If the Master Agreement was indeed then in force , by what logic could there be bargaining on the question of what the hourly wage rate should be? Conversely, if it was not in effect, by what legal reasoning could failure of Zembrodt to satisfy the demands of Local 100 put it into force? Mr. Zembrodt, who was then present , said there was no decision to the effect that he was bound by the Central States Supplement . I believe him. The exact demand of the grievance was insistence by the employees , supported by their local Union, that the contract was being violated by Zembrodt in this critical respect . This was the very point at issue. In an effort to explain away the failure of the minutes to state what the panel members now say was the heart of the decision, Budig, vice president and general manager of Budig Trucking Company, testified : "There are some instances in which decisions are lengthy , and are amplified by both of the co-chairmen to the grievance , both union and management, so that a clear understanding occurs with respect to the decision , and in those instances I do not try to meld into the decision all of the amplifications that occurs." For 2 years there had been a continuing dispute between union and employer over the wage rates ; it was in desperation over being unable to extract any raise from the Respondent that the Union had its members file the grievance . And the not very subtle scheme was somehow, somewhere, to obtain a declaration that the Company was contracturally bound to pay $4.03 notwithstanding it had never signed such a contract . And Budig called all this collateral "amplification" of the decision, the unimportant part, while inferentially designating the directive to negotiate-which the parties had been fruitlessly doing for 2 years anyhow-as the major decision justifying inclusion in the grievance panel's minutes. The trouble with his statement is that in this case the tail of the decision is all that emerged in writing and the whole dog remained hidden . I do not believe Budig. The truth of the matter is there was no such determina- tion by the panel because there could be no such decision by them. What they really told Zembrodt that day, in the corridor according to some of them, was that if he did not make his peace with Local 100, the Teamsters, supported by other trucking companies which are bound by the Central States Supplement , would later make the argument that he, Zembrodt, was bound by the Master Agreement. This was no more than repetition of the threat which Local 100 had a year been making against the Company. In any event, the fact remains the Respondent was a signatory to the Master Agreement and the strike came when that contract by its terms had 3 months more to run before expiration . The complaint says that the Union should have talked instead of striking at that moment and, as always, the only way for testing legality is to look at the statute. Section 8(d) declares it is bad faith, and therefore a J. ZEMBRODT EXPRESS, INC 131 violation of the Act, for either party "when there is in effect a collective-bargaining agreement" to "terminate or modify such contract," without first giving the requisite 60-day notice to the other side and waiting, before taking action-such as a strike by a union-until "sixty days after such notice is given or until the expiration of such contract, whichever occurs later." Unless the contract "in effect" be identified and proved, unless the modification or termina- tion sought be shown as relating to "such" contract, and unless the action is established as coming before expiration of "such" contract, there can be no finding of illegality. As stated above, the complaint says the contract involved was the Master Agreement, not to expire until April 1, 1970. At the hearing the General Counsel said it was the addendum contract that the Union sought to modify by forcing the wage rate up from $3.09 to $4.03. This vacillation continues in the Government brief; it first calls the addendum a "rider" and says the Union's purpose was "not to modify the rider," but to force the Master Agreement down the Respondent's throat. In the next paragraph appears the statement , ". . . since the rider was still `in effect' the Union was precluded by the Act from striking without first giving the notices required by Section 8(d)." But all this avoids a necessary question in the case; which contract was it that the Union was attempting "to modify"-the Master Agreement or the addendum? Restated: Which wage rate was it that the Union wished to change-$3.09 or $4.03? However confused other things may be on this record, there is no question but that the Union wanted a raise and in the jockeying went as far as to insist on $4.03. In his very able brief Counsel for the Union takes the prosecution to task for its unexplained ambivalence. A very reasonable analysis of this two-contract situation is made in this brief when it likens the addendum agreement to a wage reopener clause in the conventional single overall contract situation . By signing the Master Agreement the Respon- dent agreed to its major terms-recognition, union shop, health, welfare and pension contributions, grievance procedure, and matters of like kind. As to wages, and certain details of holiday, vacation, and work hours, it signed the addendum, and where that document speaks of reserving "the right at the end of one (1) year to reopen this contract," what the parties intended was that the Union reserved the right to renegotiate these specific matters, as listed in this contract. The total record rationally warrants this inference . There is no indication that but for the disputed wages, the parties ever took the position that any of the other substantive terms of the Master Agreement were not binding upon them. Zembrodt even participated in the grievance procedure in 1969, as that contract required. Clearly the adequate notice served in January of 1968 was directed to the addendum-the one calling for $3.09 per hour. Not only did the addendum contain the date "March 31, 1968" on its face-albeit ambiguously written-but the Master Agreement contained no reopen- ing provision and therefore could not have been the subject of the 60-day notice. The addendum, of course, continued and remained "in effect" throughout 1968 and 1969. There was nothing in the contract language or in the reopening notice which spoke of cancellation or termination. And it is not argued, nor is there any evidence to indicate, that thereafter the parties by their conduct agreed to put an end to any contract. But all of this is equally true of any contract of indefinite duration, or for a further fixed term, which is opened solely for the purpose of negotiating wages. While the parties are bargaining, even after giving the proper 60-day notice under Section 8(d), the contract is still in effect. A strike for more money hardly becomes illegal then. If negotiations drag, if the employer is very adamant, if the union loses heart and waits out the event, is the contract any more "in effect" months later than it was during the early stages of the period of attempted negotiation? The General Counsel leaves unanswered the question of how many months after March 31, 1968, could the Union have struck for a raise without running afoul of the law? Two months, 6, 12, 18? I conclude that the Union struck to force modification of the addendum contract, to force an upward revision of the wage rates, that it did so after serving proper notices upon all parties as required by Section 8(d) of the Act, and that therefore its strike did not constitute a violation of Section 8(b)(3).3 I also find, entirely apart from all the foregoing, that the strike was protected under the rule of law enunciated in Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270. Farmer, of Local 100, testified he went to the Company's office early on the morning of January 7, together with Quigley, another agent of the Union, where they had arranged to meet Earl Mitchell, the business representative, and the drivers. Farmer said their purpose on arrival was "to discuss with the employees ... some had said something to Mr. Mitchell about the employer offering them some money." Farmer also testified that the first thing that happened was that everybody went into Mr. Zem- brodt's office where there was a discussion "in reference to the Employer having a meeting with the employees individually and making a monetary offer to them of which he had not discussed with the Union." Farmer added he called the strike "immediately." Two or three days later Zembrodt was in the Union's office in an effort to put an end to the strike. His position was, as testified by Farmer without contradiction, that the contract he had signed on January 2 with the employees individually was entirely valid and precluded the strike. He showed it to the union agents for the first time and, when they called it illegal, went on that his lawyer had advised him it was enforceable in the State courts, even though it might later be declared unenforceable on appeal. In fact, on January 12, Zembrodt filed an injunction petition in the Court of Common Pleas, Hamilton County, Ohio, seeking to stop the Union from continuing the strike on the ground that it was unlawfully attempting to invalidate the individual contracts. The County Judge issued the restrain- ing order as requested. Once or twice while telling his story, Farmer repeated his opinion that the Master Agreement was binding upon the Company, that he so thought all along. At one point he 3 Cf. Cheney California Lumber Co v N L R B, 319 F 2d 375 (C A 9). 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD even said a purpose of the strike was to compel Zembrodt to pay the $4.03 hourly rate called for in that contract.4 But I do not think Farmer's repetition of the Union's long and mistaken belief that Zembrodt had somehow been hoodwinked into being bound by the major Teamster contract can serve to detract from the direct evidence that the Union was that morning faced with an impossible situation because of the illegal raises the Company had given the employees 5 days before. The General Counsel proved that a month before the strike Local 100 had obtained strike sanction from its International Union. He also pointed to the telegram of October 15, where Local 100 called upon the Company to put the Master Agreement into effect. But there is no way of knowing what the Union would have done on the morning of January 7 had the Company not injected the utterly frustrating and completely illegal act of buying off the employees behind their Union's back with the very heart of the economic demand that had so long kept the parties from reaching agreement. Farmer's demand that the Company put the Master Agreement in effect, or "pay the contract wages," was but another way of reiterating the Union's request for an immediate raise to $4.03 from $3.09, or from $3.17. He came prepared to put teeth into the Union's demand this time, for he was fortified by the International's strike sanction. Considering all the cone- spondence that had been exchanged-including the fact the Union had bothered to poll the employees on a mere 8- cents offer-it may well be that had Mr. Zembrodt not offered the 50-cents raise directly to the employees and instead proposed it as a settlement to their Union, as the law required him to do, there would have been an amicable adjustment then and there. One can speculate whether or not Farmer might have called the strike anyway, but there is no way of knowing. The fact is Zembrodt precluded bargaining, made even repetition of the Union's demand for the full Master Agreement wages pointless. I think the Union had no choice but to call the strike, if its continued status as statutory bargaining agent was to retain any validity.5 I find, on the basis of the entire record, that the General Counsel has failed to prove the essential allegation of the complaint against the Union Respondent, and I shall therefore recommend that that complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company set forth in section III, above, occurring in connection with the operations with that company described in section I, have a 4 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 It having been found that the Respondent Company unlawfully refused to bargain with the Union with respect to its employees, it must be ordered on request to bargain with that Union with respect to all employees in the unit found appropriate. The Respondent must also be ordered to cease and desist from bargaining individually with its employees and from granting them any improvements in working conditions unilaterally and without participation in such negotiations by the exclusive bargaining representa- tive. CONCLUSIONS OF LAW 1. Zembrodt Express, Inc. is an employer within the meaning of Section 2(2) of the Act, and is 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 drivers of the Respondent Company, but excluding all other employees and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. The Union was in September 1969, and at all times thereafter has been, the exclusive collective-bargaining representative of Respondent Company's employees in the appropriate unit, within the meaning of Section 9(a) of the Act. 5. By refusing on and after January 2, 1970, to bargain with the Union for purposes of collective bargaining, by negotiating individual employment contracts with its employees, and by granting them increases in pay without consultation with their exclusive bargaining representative, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, THE WITNESS At this particular time, sir, I was not aware that they had signed I was made aware by the members themselves on January the 7th at the meeting on that morning that the employer had contacted them individually and collectively, and had reached an agreement with some of the employees that he would give them 50 cents or 51 cents, ever what it was . And in the discussion I asked Mr Mitchell if the company had contacted him in reference to this matter, and he said no, siree , the company had not contacted him. Mrs Fay's Pies, Inc, 145 NLRB 495• ". . . where the subject of the unfair labor practice and the economic motivation is one and the same thing, we find that it is the unfair labor practice which in fact causes the strike " From Farmer's testimony TRIAL EXAMINER ' Local 100 struck the Zembrodt Company on January 7th THE WITNESS Yes sir TRIAL EXAMINER Why9 THE WITNESS To enforce the award of the Local Cartage Supplement Contract , supplement to the National Master Freight Agreement, awarded by the Local Cartage Committee, which is legal and binding to both the union and the employer TRIAL EXAMINER . Did the fact that on January 2, one of the exhibits shows, the company signed individual contracts with the drivers for 514 raise have anything to do with why the Union struck J. ZEMBRODT EXPRESS, INC. 133 and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 6 ORDER Respondent, J. Zembrodt Express, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Truck Drivers, Chauffeurs and Helpers Local Union No. 100, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive representative of all employees in the bargaining unit, unilaterally negotiating and signing individual con- tracts of employment with its employees, or granting them wage increases without consultation with their exclusive bargaining representative. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form, loin, or assist any labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of all employees in the appropriate unit described above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if agreement is reached, embody the terms in a written contract. (b) Post at its place of business in Cincinnati, Ohio, and in any other location where its employees report for work, copies of the notice attached hereto and marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 9, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.8 IT IS HEREBY RECOMMENDED that the complaint against the Respondent Union (Case 9-CB-1733) be, and it hereby is, dismissed. 6 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 7 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 8 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read- "Notify the Regional Director for Region 9, in witting , within 20 days from the date of this Order what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with Truck Drivers, Chauffeurs and Helpers Local Union No. 100, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT negotiate and sign individual contracts of employment with our employees while they are represented for collective-bargaining purposes by this Union. WE WILL NOT unilaterally grant wage increases to our employees without consultation with their Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, loin, or assist any labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL bargain collectively, upon request, with this Union as the exclusive representative of our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody such agreement in a signed contract. The bargaining unit is: All drivers in our employ, but excluding all other employees and all supervisors as defined in the Act. J. ZEMBRODT EXPRESS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.