Capital Rubber & Specialty Co., Inc.

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Capital Rubber & Specialty Co., Inc. and General Truck Drivers, Warehousemen and Helpers, Local No. 5, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Ind. Case 15-CA-4310 July 18, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On May 3, 1972, Trial Examiner Thomas A. Ricci issued the attached Decision in this proceeding. 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order.1 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, as modified below, and hereby orders that Capital Rubber & Specialty Co., Inc., Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as modified. Add the following as paragraph 3 of the Trial Examiner's recommended Order: "For the purpose of determining the duration of certification, the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized collective-bargaining representative of its employees in the appropriate unit." 1 The Respondent has excepted to the Trial Examiner's finding that the strike following its unlawful refusal to bargain was an unfair labor practice strike without, however, contesting the validity of his holding that it had violated Sec 8(a)(5) We find merit to this exception The Trial Examiner cites no factual basis for his conclusion that the strike 6 weeks later was provoked by the Respondent's unfair labor practice, and we have searched the record in vain for testimony on the cause of the strike or its objectives We are unwilling to hold that the mere fact that a strike follows an unfair labor practice establishes a causal relationship as a matter of law. Accordingly, we do not adopt the Trial Examiner's findings in this respect nor his consequent conclusion that the strikers are unfair labor practice strikers The General Counsel contends that, since the Respondent unlawfully refused to bargain in good faith during the initial certification year, the certification year should be extended and deemed to start from the date the Respondent begins to bargain in good faith. We agree and shall so modify the Order Mississippi Wood Preserving Company, 173 NLRB 1370 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly designated Trial Examiner on March 21 and 22, 1972, at Baton Rouge, Louisiana, on complaint of the General Counsel against Capital Rubber & Specialty Co., Inc., herein called the Respondent or the Company. The question in the case is whether the Respondent unlawfully refused to bargain with the certified exclusive representa- tive of its employees in violation of Section 8(a)(5) of the Act. A brief was filed by the General Counsel after the close of the hearing. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Capital Rubber & Specialty Co., Inc., a Louisiana corporation, is engaged in the manufacture of rubber products, with a place of business located at Baton Rouge, Louisiana. During the past 12 months, a representative period, it purchased and received at this location goods and materials valued in excess of $50,000 from points located outside the State of Louisiana. I find that the Respondent 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 General Truck Drivers, Warehousemen and Helpers, Local No. 5, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A Picture of the Case On May 13, 1971, the Respondent's production and maintenance employees voted in a Board-conducted election and a majority chose to be represented by the Union in collective bargaining; the number of eligible voters was 26. The Regional Director certified the Union as exclusive representative on May 21. Following prelimi- nary exchanges, the parties met to negotiate a contract on three occasions, July 23 and August 3 and 17, 1971. Speaking for the Union were two negotiators, J. M. Walters and Dennis Pedescleaux, both assistant business agents. On behalf of the Company there were, in each instance, Russell Scholl, president, and John Price, his lawyer. Price did all the talking for the Company; once or twice Scholl injected himself in the discussion, but Price told him to remain silent. The parties exchanged detailed written contract propos- als, and there was considerable discussion on the many items involved. The Company agreed to a number of 198 NLRB No. 46 CAPITAL RUBBER & SPECIALTY CO. contract clauses suggested by the Union; as will appear below these were largely inconsequential. Toward the end of the third meeting the parties were at odds on virtually every meaningful issue that had arisen. At this point, according to the complaint and according to the testimony of Walters and Pedescleaux, Price said further talk would be pointless and that he was therefore then and there discontinuing any further negotiations. The parties never met again. On October 1, 1971, the employees went on strike and December 14 the Union filed its refusal-to- bargain charge. The complaint alleges that throughout the meetings the Respondent acted in bad faith, that it never honestly intended to come to terms on any basis with the Union, or to enter into any binding collective-bargaining agreement. It also alleges that the refusal to bargain, as the statute requires, is evidenced outright by the literal refusal, on August 17, to meet any further with the Union's represent- atives. In defense the Respondent asserts that it did bargain in good faith during the three conferences; in support it points to the fact its lawyer, at every turn when he rejected union requests or insisted upon those urged by the Company, explained the reasons for his position. As to the alleged literal refusal to negotiate further, it denies the accusation, and particularly its lawyer denied at the hearing that he, in haec verba, "broke off" negotiations that day. The Evidence The evidence consists essentially of the two extended written contract proposals and the oral testimony of Walters, Pedescleaux, and Price, who gave their recollec- tions of how the discussion proceeded during the three meetings. Much of their conversation during the meetings was argumentative justification for what they were de- manding of one another, or rationalization for their refusals to make concessions to conflicting demands. Undoubtedly they could not recall word for word what was said, and of course it was to be expected that in the retelling each of the witnesses would paraphrase their stories so as to cast their respective positions in a persuasive light. To a certain extent, such coloring of testimony is inevitable in a case of this kind; indeed some slanting may have been completely unintended. But the testimony of Price, if testimony it can be called, presents a different and unusual problem. He was the lawyer defending the Respondent at the moment. His primary purpose at the hearing was to win the case, to establish facts favorable to his client's interests, and to subordinate, or totally remove from the picture, other facts that might lend support to the complaint. On the ground that it is fundamentally unethical for a member of the bar to act as both witness and advocate in the same proceeding, the General Counsel objected to Price taking the witness stand. Scholl, the company president, who had attended all three of the meetings, was present in the courtroom and available to testify, but the lawyer chose not to call him as a witness. Regardless of propriety, the lawyer's "testimony" is as much argument, conclusionary 261 statements, exculpation, and patent effort to distort facts as it is actual reporting of what the parties said to one another at the time of the events. For the moment a single example will serve to illustrate the inherent unreliability of testimo- ny given by any person simultaneously occupying the dual (role of lawyer and witness. One of the arguments advanced to dispute the allegation of bad-faith bargaining is that there was agreement on many items requested by the Union. If the Company was lin fact willing to sign a contract containing many provisions the Union wanted, how could it be said it was determined not to enter into any binding agreement at all? The Union proposed a binding arbitration clause. The (Company opposed any form of arbitration in every section ,of the Union's proposals where it was suggested and without quarter held absolutely firm to that position. In response to the Union's urgings that arbitration would minimize litigation, turn the parties from economic warfare to amicable coexistance, Price answered, at each of the conference sessions, that if there should be contract violations by the Company later the Union would be free ,to strike. Again and again from the witness stand the lawyer kept repeating this was an "agreement" between the parties, the Union yielding to the Company by surrender- ing its request for an arbitration clause and the Company in return conceding to the Union, as a quid pro quo, the right to strike to enforce the contract.' Price's first version of this so-called "agreement" rested upon his repeated statement that the Union's proposals contained a no-strike clause, and that he condescended to leave it out. There was no no-strike clause in the union proposal. After a recess Price continued his testimony and changed it. Now he said his counteroffer was that he would not himself "prohibit" the Union from striking, that if the Union abandoned its arbitration request the Company would not demand a no- strike provision. Clearly Price was fabricating as he went along, to meet the needs of the moment in his recital. This was counsel for the defense recasting the facts, ostensibly positioned as a witness but actually concerned primarily with rescuing the Respondent. It was good illustration of ,why the American Bar Association Canons of Ethics frown upon a lawyer's conduct in testifying in support of the case he is defending. There are other instances of this sort of "testimony" by Price at the hearing. The total character of his testimony greatly impairs his credibility. The matter is of major importance in this case. The bargaining was hard on both sides, but clearly there is nothing in the law that compels agreement by either party with counterproposals from the other side of the table. There are some mdicia of bad faith in the attitude the Respondent took on certain items that were discussed, but the real crux of the case is what happened at the end of the last meeting on August 17. The direct burden of Walters' and Pedescleaux's testimony is that Price made them understand, whatever words and gestures he may have used, that there was going to be no more bargaining, that the Respondent would no longer discuss anything with the Union. In his own way Price denied this testimony. There is therefore a question of credibility, and considering the I The right to strike is a statutory privilege , which an employer may not concede or withhold See Kellogg Company v N L. R B, 457 F 2d 519 (C A j6) 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD totality of the lawyer's testimony and oblique admissions that appear in his story, I cannot believe him where he is directly contradicted by the other two witnesses. Agreement and Disagreement The Union's proposed contract was 17 pages long; it included 13 articles and asked, without further detail, a "$1.75 increase over a 2 year period." The Company's proposal was spread over 30 pages, with 18 separate sections. All the provisions in both documents were discussed seriatim and at length, some of them more than others. In the talk about the Union's proposals, the Company agreed to the following items: (1) The recognition clause would follow precisely the language of the Board certification. (2) The Company would make no individual contract with the employees that conflicted with the collective-bargaining agreement. (3) The Company would not assign one classification of employees to do the work of another in order to pay less money, nor "make a practice" of sending some employees home in order to have others do their work. (4) Employees would be paid weekly. (5) State and Federal safety laws would be obeyed by the Company. (6) City, state, and Federal laws applicable to the safety of equipment would be obeyed by the Company. (7) The Company would cooperate in reasonable efforts to settle employee claims for work injuries under the Workmen's Compensation Insurance. (8) The Company would comply with state board of health regulations in the toilets. (9) If the Company should one day decide to require employees to wear uniforms it would pay half the cost. (10) The Company would not pay the employees less than the wages called for by the collective-bargaining contract. (11) Employees would not be required to attend company meetings on their own time. The parties could not agree on any of the substantive terms of their respective proposals, such as: unionshop, arbitration, hiring hall, management rights, seniority, vacations, holidays, funeral leave, successorship, and hospitalization insurance and pension. On some items there was movement on one side or the other during the three meetings, or before the final refusal by the Respondent to talk any further. (1) The Union proposed a probationary period of 30 days; the Company at first said 4 months instead, but later came down to 90 days. (2) The Union wanted 3 hours' call-in pay; the Company said no, and then offered 2-1/2 hours call-in pay. (3) The Union wanted a union dues checkoff provision; the Company refused, and then proposed, in compromise, that it would check off dues in return for payment-$5 monthly per man, according to the union witnesses, $5 per year per man according to Price. I credit the union witnesses. (4) The Union asked that employees be granted unpaid leaves of absence to attend union conventions; the Company first agreed to release only one man 5 days in a year, and then raised its offer to one man for 10 days a year. (5) A company-proposed management rights clause unacceptable to the Union contained a schedule A, listing 32 reasons justifying discharge. There came a time when the Company said it would not insist on including its schedule A in the contract. How hard was the bargaining? Very hard. Walters, for the Union, testified that again and again Price announced flatly his position was "final" when he said no to a union proposal, or urged those of the Company . Pedescleaux said that when first presenting the company proposals Price announced: "This is our proposal . . . This is it. This is our final proposal." Both the union negotiators said that, in contrast to Price's refrain that the Company 's position was "final," they, for the Union, always stated their opposing position as "firm-not final." Price did not contradict this testimony ; indeed he characterized the "firm" position of the Union as tantamount to "final," and said he so told Walters and Pedescleaux during the meetings ; he referred to their "fancy words." Price also said that more than once Partin, the union business agent who was at the meetings once or twice for short periods, said the Union would never sign a contract without the union-security clauses request- ed. In any event, it is clear that as lunchtime approached on the 17th, the parties were entirely at odds on virtually all issues of any real meaning. Nevertheless, had the Respon- dent that day not chosen to discontinue negotiations, not told the union agents it would no longer meet or discuss anything with them, I doubt a finding of illegal refusal to bargain would be warranted based on the total evidence of what happened before that time. The Final Meeting All three meetings took place in Price's motel room. Toward noon on August 17 he summed up the situation and said, according to Walters: "We are so far apart we can't reach an agreement. We have gone as far as we can toward reaching an agreement and there's no point in going any further. I'm breaking off negotiations." Pedes- cleaux corroborated Walters. As Price recalled, his words were : ". . . I will tell you that we are-that we can't see any reasonable prospect for changing our mind. I would like for you to tell me now, are you going to change your minds?" When Pedescleaux answered he would not change his mind, Price, still according to his version, said he thought the parties were at an impasse, but the union agent responded, "Our position is firm but not final." At this point Price said: "We have reached a lot of agreement but as far as the company is concerned, we are not willing to make changes in our position on these matters that you say are a must. Now it doesn't do much good to sit here and look at each other . . . to talk and talk and to go over and go over these matters, is not doing much good." Walters continued to testify that there followed three caucuses by the union people, all of them retiring from the room to discuss what to do. And three times they returned to Price's room and made certain concessions aimed at continuing the attempt to reach agreement . The first time the Union offered: (1) To extend its probationary period proposal from 30 to 35 days; (2) to agree to a 4-day notice of layoff instead of 7 days; and (3) to accept the company proposal that the workweek should be as "scheduled" by the Company instead of "guaranteed 40 hours" as originally asked by the Union. Walters also said the Union offered at that point to accept the counteroffer of 2-1/2 hours call-in pay in place of 3 hours, but he may have been CAPITAL RUBBER & SPECIALTY CO. 263 wrong, for there is evidence indicating the counteroffer of 2-1/2 hours was agreed to earlier . Puce's sole answer, according to Walters, was: "I have told you fellows we are too far apart. We can't get together. I'm breaking off negotiations." Again the Union withdrew and returned with these additional suggested concessions: (1) Accept the Compa- ny's existing hospitalization insurance plan, which paid only on behalf of employees but not for their families, and accept the pension plan of which Price had spoken. The Union had proposed its own pension plan and more comprehensive hospital insurance. (2) Accept the Compa- ny's sick leave plan in place of the Union's proposal on the subject. (3) Abandon the Union's request for 3 days' annual paid funeral leave. (4) Accept the Company's holiday proposal-6 days instead of the Union's request for 7 days. (5) Accept the existing vacation program in place of the Union's proposal. Price's response, still according to Walters, now was: "I have told you fellows that we are too far apart . We can't get an agreement. I don't see what you all have against saying you broke off negotiations. I don't mind saying it . . . . You can say I broke off negotiations." The union negotiators caucused again and returned with Business Agent -Partin. On their way they saw Scholl leaving, and heard him say Price knew he was going away. Pedescleaux told Scholl he should stay, but the company president said Price knew what he wanted. Back in Puce's room, Pedescleaux's testimony continues as follows: "Mr. Partin said, `Mr. Price, I just want to hear you for myself say you're breaking off negotiations.' And he [Price] said, `Well, you can listen.' He said, `I'm breaking off negotia- tions.' He said, `And I would like to make a phone call.' So Mr. Partin said, `Well, since you've gotta make a phone call, how about we going and getting us something to eat and we'll come back.' " After lunch the union agents returned to Price 's room a final time. From Walters' testimony: "We went back up there and Mr. Price was packing. He had his clothes laid out on the bed and the case there and he said, `I done told you fellows, now, there's no use taking my time and your time. I've done broke off negotiations. You didn't want to break off negotiations . I've gone as far as I can go. We are too far apart and we can't reach an agreement.' " From Pedescleaux's testimony: "We went back. Mr. Price say, `I don't see no need of talking any further about anything.' He said, `We are breaking off negotiations. I don't see no reason why we should set up any meeting.' ... Mr. Price was continuing packing his suitcase." On this subject of the Union's repeated attempts to engage Price in negotiations following its successive caucuses, and to prevail upon him to give some thought to their offers of compromise, as well as what responses he gave them, Price's testimony is particularly confused, mixing fact with conclusionary argument interchangeably. He did deny clearly ever using the words "breaking off negotiations." He implied a contradiction, but did not really deny, that there had been these three attempts to bring the parties a little closer together. For the rest, as to what he did tell them each time they came back, there is this in his rambling story: "Well, look. It's doesn't look to me like we're getting anywhere in this meeting. I am going to get my stuff ready to go. I'm not going to sit here and be criticized like this." Price then said the Union did not want to discontinue bargaining, and "So I said, `Well, I don't think we're going to gain anything by staying here.' So I got my stuff ready and left." Price closed with a saying: "If, on the 17th, there were any concessions made by the union I can't think-I do not know of any with the exception of-it was on the 17th that we ironed out-we ended up with 2-1/2 hour call-in pay. Other than that, I don't know of any change that the union made in their proposal on that day." The Union people left. Price went home to his office in Houston, and the parties never met again . About 2 months later the employees went on strike . Was it an unfair labor practice strike? Analysis and Conclusions Price emphasized, both during the meetings with the Union and at the hearing , that he is the alter ego of the Respondent. The case turns, therefore, essentially on his conduct throughout the events. On the basis of the total record I find that by the end of the August 17 meeting, if not earlier, his intent was to put an end to all further negotiations and not to sign any contract with the Union. I also find, regardless of precisely what words he may have used, that he conveyed this message clearly to the union agents. I am equally satisfied he used the words attributed to him by Walters and Pedescleaux-that he was "breaking off negotiations." I do not credit Price. The least persuasive of his arguments in self defense is that it would be illogical to believe this pinpointed testimony of the two assistant business agents. "What would an expenence[d ] negotiator make a statement to the union, `We're breaking off negotiations' for? What kind of logic would that be? Well, what kind of insanity would that be?" He insisted no experienced negotiator would use such damaging phrases. "If you are going to have an experi- enced negotiator, surely he's being paid for finesse if nothing else." What Price was really saying at the close of the hearing is that a master in the field , an officer of the court, must of necessity be believed when he makes himself witness to the events. If this logic must govern, it could be carried further, with the argument that the true master, or lawyer, with knowledge that his later oral testimony must be credited, will indeed use the damaging words, con- sciously relying on retroactive exculpation . I find both of these approaches wanting. It would be no less unjust to presume dishonesty in a lawyer than it would be to permit his veracity to be predetermined. This resolution of credibility , adverse to Price's denial that he in so many words announced the Respondent would no longer negotiate with the Union at all, is supported by a number of related factors. One has already been mentioned, the obviously deliberate attempt to twist rejection of the proposed arbitration clause into a substantive agreement with a union demand . Significantly, at the same time that Price was, as he would have it, granting to the Union the right to strike, he was also offering a grievance procedure, in the company proposals, that would have bound the Union to strike in support of 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievances but only within a given number of days. It provided that if at any time grievances remained unre- solved, the Union would lose the right to strike if it did not do so within 20 days. This was one of the company demands on which Price's position was admittedly "fi- nal."2 And while his proposed schedule A, formalizing in a collective-bargaining agreement virtually every conceiva- ble basis for the discharge of an employee, was not in itself an illegal suggestion, it is serious indication of an intent to make a mockery of the bargaining process, more so in the case of so experienced an employer representative. More indicative, however, of a pervasive intent not to bargain in good faith, is a written wage proposal he gave the Union at the start of the first meeting. It will be recalled that the Union started by asking for $1.75 spread over a 2-year period, and that there were 26 employees eligible to vote in the election 2 months earlier. On July 23 Price gave the Union a written wage proposal which provided immediate increases to 10 employees-37 cents per hour to 3, 25 cents per hour to 1, 13 cents per hour to 3, and 12 cents per hour to 2; it also provided an additional raise of about 25 cents per hour to all employees named on the proposal for January 1, 1972, and a like raise for January 1, 1973. Price proposed that the Union agree to putting the limited quick raises in effect immediately. The Union refused. Price must have known, and in all probability have intended, that immediate increases in pay, however limited, at the very start of negotiations, would weaken the Union's position to press for other improve- ments in working conditions, indeed serve even to dissolve the bonds between the employees and their chosen representative. More important, and more revealing of Price's funda- mental attitude, is the further fact that there were only 17 names on the proposed wage schedule. Walters and Pedescleaux asked what about the other nine? Price answered the Company had decided to make supervisors of all the others. This was one of the moments when Scholl started talking, only to be silenced by his lawyer. With time, as the union agents mulled this over, they took the position that in that event they would contend that all supervisors not perform any rank-and-file work. On August 17, Price said the Company "will not insist that those four men be supervisors as an issue between us." [At the hearing Price stated, but produced no evidence in support, that some of the original 26 men had left the Company.] This was Price toying with the Union, reducing the collective-bargaining process to a shell game-now the employees are in, now they are out. He was making a shambles of the negotiations, strong indication of bad faith and strong support for the finding, contrary to his later contention, that he did in fact break off negotiations in the end. I am convinced he always intended that. ' On questions of credibility many things are pertinent, some more weighty than others. As to the question of whether there was any issue at all on hospitalization and pension, Price several times said there was none , because the benefits were already in existance , and therefore "We would give them exactly what they asked for...." As he continued, he admitted telling the Union at the time: "It [the pension plan] is in effect but there is a legal technicality involved . It's going to be in effect if the IRS says okay go ahead, but it's not going to be in effect if they say no." As to the arbitration issue, despite his argument, there had been agreement early because the Union agreed to waive it ; he later said at several points in his story that the issue remained a hot one . One of the clearest things on this record is that the Company offered six holidays, its established practice, against the Union's request for seven. Walters said this was one of the concessions offered at the end in Price's room to keep the negotiations going. Despite his later oblique denial, from the stand, that there had been any proposed movement at all that day by the Union, in his cross-examination of Walters, Price tried to draw from him an admission that the Company had "agreed" to the union's offer to settle for six holidays that day! Price did the same thing in questioning Pedescleaux with respect to the layoff notice issue, on which the Union at the end offered to recede from 7 to 4 days. August 17 was less than 3 months after the Board certification in favor of the Union had issued . There had only been three meetings in Price's hotel room as he requested, he sent his client away in the heat of the bargaining, and in the presence of the union representa- tives he busied himself packing to hasten his departure from town . As sole spokesman for the Company he said he was through talking. This was not good-faith bargaining with a certified exclusive majority representative as envisaged and dictated by the statute. There was no impasse, according to Board law.3 Price admitted the union agents said they wanted to continue bargaining. In fact, Price's own story contains the clearest admission it was he who tried to put the word `impasse' into the mouths of Walters and Pedescleaux, only to have them again and again say it was not so. He refused to answer every time they asked him to at least consider their successive concessions. I find that on August 17, 1971, and thereafter the Respondent refused to bargain with the Union and thereby violated Section 8(a)(5) and (1) of the Act.4 I also find that the strike which started on October 1, 1971, was an unfair labor practice strike provoked by the Respondent's unlawful refusal to bargain, and that the striking employees are therefore entitled to reinstatement upon application. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of the Act. 2 Compare Alba- Waldensran, Inc, 167 NLRB, enfd 404 F 2d 1370 (C A 4). 3 Sharon Hats, Inc, 127 NLRB 947, Duro Fillings Company, 121 NLRB 377 4 The complaint alleges, the answer admits, and I find that all full-time and the regular part-time hourly paid employees of the Respondent at its Baton Rouge, Louisiana, facility, excluding office clerical employees, salesmen, professional employees, guards, watchmen, and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Sec 9(b) of the Act I also find, as alleged in the complaint and admitted in the answer, that on May 21, 1971, and at all times thereafter, the Union has been the exclusive bargaining representative of all employees in said unit CAPITAL RUBBER & SPECIALTY CO. 265 2. The Union is a labor organization within the meaning of the Act. 3. The Union is, and has at all material times herein been, the exclusive majority representative of all employees in the following bargaining unit of employees at the Respondent's Baton Rouge, Louisiana, plant; all full-time and regular part-time hourly paid employees, excluding office clerical employees, salesmen, professional employ- ees, guards, watchmen, and all supervisors as defined in the Act. 4. By refusing, on August 17, 1971 and thereafter, to bargain with the Union upon request, the Respondent has refused to bargain collectively with the Union as the exclusive collective-bargaining representative of its em- ployees in violation of Section 8(a)(5) of the Act. 5. By the foregoing conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1). 6. The aforesaid unfair labor practices are unfair labor practices proscribed by Section 2(6) and (7) of the Act. -Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 5 ORDER The Respondent, Capital Rubber & Specialty Co., Inc., Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain, upon request, with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate bargain- ing unit described above. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. (b) Post at its plant in Baton Rouge, Louisiana, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative of the Respondent, shall be posted by it 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.? 5 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 6 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 " r 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 15, in writing , 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 After a full trial in which both sides had the opportunity to present their evidence the National Labor Relations Board has found that we, Capital Rubber and Specialty Co., violated the National Labor Relations Act, and ordered us to post this notice. We therefore notify you that: WE WILL, upon request, bargain collectively with General Truck Drivers, Warehousemen and Helpers, Local No. 5, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind., as the exclusive representative of all employees in the appropriate bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT refuse to meet and bargain with this union as the exclusive representative of the following employees: All our full-time and regular part-time hourly paid employees, excluding office clerical employ- ees, salesmen, professional employees, guards, and supervisors as defined in the Act. 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, join, 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. CAPITAL RUBBER & SPECIALTY CO., 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, T 6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.