Chauffeurs, Teamsters and Helpers, Local 301

CHAUFFEURS, TEAMSTERS AND HELPERS , LOCAL 301 783 Chauffeurs, Teamsters and Helpers, Local Union No. 301, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America and Merchants Moving and Stor- age, Inc. Case 13-CB-4883 May 21, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On November 30, 1973, Administrative Law Judge Milton Janus issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in answer to the General Counsel's 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE MILTON JANUS, Administrative Law Judge: The General Counsel issued his complaint in this proceeding on July 31, 1973, after a charge filed on June 20, 1973. The complaint alleges that the Respondent (the Union or Local 301) violated Section 8(b)(3) of the Act by demanding that the Charging Party (Merchants or the Company) sign first an interim collective-bargaining agreement and then a new agreement with it, without affording Merchants the opportunity to bargain over the terms and conditions to be included in such agreements , and with no intention of bargaining collectively in good faith. Also alleged as a violation of Section 8(b)(3) is the assertion that the Union called a strike and picketed Merchants' premises in support of these demands. Respondent's answer denies the material allegations of the complaint. I held a hearing in this matter on October 2 and 3, 1973, at Chicago, Illinois, at which all parties were afforded full opportunity to be heard. Briefs have been received from the General Counsel and the Respondent which have been duly considered. Upon the entire record in the case, including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer is an Illinois corporation which maintains an office and warehouse at Lake Bluff, Illinois, where it is engaged in the business of moving and storage of goods for commercial accounts and for various branches of the Armed Forces. During a recent and representative 12- month period, it performed services valued in excess of $50,000 for business enterprises which themselves annually shipped goods valued in excess of $50,000 directly to States other than the one in which they were located. It is also an agent and subcontractor for three interstate van lines which move household goods for military personnel into and out of military installations in the Chicago area. I find, based on the undenied testimony of the president of the Employer as to its operations as described above , that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein.' If. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Merchants has recognized Local 301 as the representa- tive of its drivers and helpers since 1962, and has entered into bargaining agreements with it at approximately 3-year intervals since then . Local 301 has jurisdiction over two counties north and northwest of Chicago, and has contractual arrangements with about 475 employers in its area, each of whom is signatory to one of the 25 or so separate contracts that Local 301 negotiates . Merchants is one of the 9 or 10 employers who have uniformly been included in Local 30l's Parcel and Furniture Drivers (PFD) agreement . The PFD agreement covers all local cartage operations of the employers covered by it (see sec. i Ready Mixed Concrete & Materials, Inc, 122 NLRB 318, and H P 0 Service Inc., 122 NLRB 394 210 NLRB No. 133 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4, G.C. Exh. 4) and applies to such employees as drivers, dockmen and helpers, mechanics and helpers, greasers, and garage employees. Bargaining in the Chicago metropolitan area has been conducted by a Teamsters Council in which Local 301 participates, which negotiates with five or six employer associations. Such bargaining sets the pattern for the wage and fringe benefit structures which the separate Teamsters Locals then propose to the employers with whom they deal. Article I of the PFD agreement for 1970-73, which I assume is typical of PFD agreements for other periods, defines the employers covered as associations, members of associations who have authorized it to execute the agreement, members of associations who have not given such authorizations, and individual employers who become signatory to the agreement. The record in this case does not indicate whether any of the 10 or so employers who are covered by the PFD agreement belong to an association, the nature of their authorizations to it, if in fact it exists, or the nature of their bargaining with Local 301. There are only two evidentiary items bearing on this question: (1) that Mrs. Schultz, president of Merchants, signed a printed contract in 1970 which she had never seen before, and (2) that only one employer, of those who signed either the 1970 or the 1973 contract, was permitted any variations in the terms of the standard contract. The General Counsel and Charging Party sought to introduce evidence as to the relationship between Mer- chants and Local 301 since 1962, and specifically to show that Merchants never had an opportunity to bargain for itself, but had to accept whatever document Local 301 placed before it. I rejected the offer because I considered it too remote even as background, but I did allow the introduction of testimony as to the negotiations in 1970 which led to the last contract between the Company and Local 301. In any event, this bore out what the General Counsel had hoped to prove as to previous contracts, that as a practical matter, Merchants could not expect to negotiate a contract with Local 301 which departed from the pattern set in the area-wide bargaining between the Teamsters Council and the employer associations with which it bargained. The reason for this seems obvious to me, although I cannot point to any specific testimony in the record which proves it neatly. Effective bargaining in the Chicago area in the trucking and related industries does not take place between individual Locals and Employers but between their respective representatives-a council of locals and associations . Once the area-wide pattern has been set, both the unions and the associations must hold the line to prevent undercutting. It was in such a setting that Merchants, a company with six full-time employees wanted to negotiate a contract with Local 301 without preconditions. B. Bargaining Between the Company and Local 301 in 1973 The 1970 PFD agreement was due to expire April 30, 1973. On February 16, 1973, Robert Barnes, secretary- treasurer and chief executive officer of Local 301, sent to the employers signatory to that agreement, including Merchants, notices of termination in accordance with article 29, and also informing them that Local 301 would meet "as a ,separate bargaining unit with you or your Association Representative at a mutually convenient time and place to negotiate a new Collective Bargaining Agreement." Mrs. Schultz, president of Merchants, heard nothing further from Barnes until April 6, when she received an interim agreement (G.C. Exh. 6) with a request that it be signed and returned immediately. It provided for extension of the current agreement through July 31, 1973, with all terms and conditions of that agreement to remain in effect, except that wage rates and vacations were to be increased by 24 cents per hour between May 1 and July 31. About 2 weeks later, Mrs. Schultz spoke to LaDuke, a business representative of Local 301, while he was at the plant collecting dues, and told him she wasn't happy with the present contract and wanted to know about the Chicago furniture movers contract. LaDuke told her she would have to contact Barnes about it. A month after that, about May 15, Mrs. Schultz, who had been ill for part of this time, went to the Union office to inform Barnes that she would be away on vacation until June 8, that she could not sign the interim agreement, and that he should not bother her 23-year-old grandson about it while she was away. She also left some financial reports about the business with Barnes. When she returned from her vacation, she wrote Barnes on June 12, referring to the Union's notice of February 16, and asking about a time and place for negotiating. She claimed that Merchants was in an extremely precarious financial condition, noted that she had no affiliation with any association and asked for personal negotiations. Barnes called her when he received her letter and demanded that she get right down to his office by the following Tuesday to sign the interim agreement. He hung up the phone when she asked whether it was to negotiate. Mrs. Schultz then retained Maslanka as her counsel. Maslanka tried to reach Barnes in the next few days but was unsuccessful. On June 18, Barnes called Schultz, referred to Maslanka in derogatory terms, and told her to be at his office the next day. She told him she couldn't be there because Maslanka had to be out of town then. On June 20, Barnes appeared at the Company' s premises before work began, to inform the union members on the lack of progress to date. When Mrs. Schultz arrived, she asked what was going on. According to her, Barnes became abusive because she had not kept the appointment for the day before. She asked him and some of the employees to come into her office, and then called Maslanka to talk to Barnes. After some vituperative exchange between them, Barnes hung up the phone, and insisted that she sign the interim agreement immediately. She called Maslanka again to get him to talk with Barnes, and this time, despite further mutual recriminations, an arrangement was made for Barnes to meet with Maslanka and Schultz on June 22. The Company filed its charge in this case on June 20, and by the time of the meeting on the 22d, Barnes had received a copy. The meeting took place in Mrs. Schultz' office. Barnes testified that he asked Maslanka, referring to the charge, where he got the idea that Local 301 was refusing to bargain in good faith, and that Maslanka had said the charge was just a formality. Barnes said he asked CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 301 785 Maslanka if he wanted to negotiate a new agreement or extend the old one (to July 31) with the 24-cent additional wages. Maslanka asked him why he wanted to extend the old agreement, and Barnes said he told him that by July 31, he would know what the results of the negotiations then going on in Chicago would be . Maslanka said he preferred to negotiate a new contract and asked Barnes if he had a proposal to make . Barnes then showed him a proposal for a new PFD agreement which had been favorably voted on by the employees covered by that agreement on February 5 (G.C. Exh. 9). Its eight items read as follows: 1. 3 year agreement. 2. Wages-75 cents per hour each year. 3. Health and Welfare-$3.00 per week per mem- ber. 4. Pension-$3.00 per week per member. 5. Vacation-Three weeks after 7 years. Four weeks after 12 years. Five weeks after 20 years. 6. Holidays-Friday after Thanksgiving. Good Friday. 7. Jury Pay. 8. Sick Pay-One day per month to accumulate up to 60 days. Barnes testified that Maslanka looked at the proposal, said it was impossible for the Company to give anything in view of its poor financial condition, and asked him to review the Company's financial statements. Barnes said he told Maslanka that he couldn't get into that . Barnes said he did not insist that the 90-day interim agreement had to be signed, that he would leave it to Maslanka either to agree to it or to negotiate a new agreement. According to Barnes, they went through the items of the proposal, that Maslanka agreed to a 3-year agreement, but as to the items that could cost the Company money, he said they could not afford anything, and made no counteroffers . Maslanka said he needed more time to go over the Company's financial status, said he would take the proposals under advisement, and asked for another meeting. Mrs. Schultz testified on direct that Barnes had insisted on June 22, that the Company had to sign the interim agreement, that Maslanka responded that the Company was in bad shape and he didn't see how it could pay the increase, and that he needed more time to go over the company books. She also said she claimed that as a small moving company it should not be subject to a freight contract but should be under a movers contract such as there was in Chicago. Barnes responded, according to Schultz, that she didn't charge high enough rates. As to the proposal for a new agreement, Schultz said on direct examination that Barnes had given it to her and Maslanka, but that they had not read it then. However, on cross- examination Schultz admitted that Barnes and Maslanka had gone over some of the specific items of the proposal, and that Maslanka had said the Company could not afford any, increase in health and welfare, and that it might not even be able to afford the pension payments called for under the expired agreement , much less pay any increase, and that it could not afford the vacation increases . She said that Maslanka had not gone into the holiday, sick pay, or jury pay items. Maslanka testified that he and Barnes did not discuss the proposals for a new contract , that he told Barnes he would look at them but needed more time to do so and to evaluate the Company's financial condition. Maslanka said that Barnes wanted Schultz to sign the interim agreement, but Maslanka said that would have to be considered later in the bargaining. According to Schultz and Maslanka, the June 22 meeting lasted no more than 15 or 20 minutes, while Barnes said it lasted more than an hour. I credit Barnes as to the length of the meeting and the subjects that were discussed. I find it highly unlikely that after all the trouble gone into in arranging the meeting for the 22nd, that it would have ended in 20 minutes. It was Maslanka and Schultz who had called for and insisted on a meeting, and once Barnes sat down with them it seems likely that they would want to get into the Union's proposal for a new agreement , since by then the interim agreement had little more than a month to run. I find that there was some discussion of the proposal for a new 3-year agreement, but that Maslanka insisted that the Company was in no financial position to pay anything more than what it was already paying, if that. On June 27, the second and last meeting was held. Schultz and Maslanka met with Barnes who was accompa- nied by Serdar, a trustee and business representative of Local 301 . Maslanka went into the Company's poor financial position, that it owed a bank $105,000, and offered to prove it by having Barnes examine its records. Barnes refused to do so. They considered the individual items of the Union's proposal, but to each of the important money items, wages, health and welfare, pensions, and vacations, Maslanka argued that the Company was unable to pay the increases listed in the proposal, but that it would try to see what it could do. Maslanka never put forward any specific amount which it offered to pay on any of these items, and Barnes never offered to accept less than its proposal. At one point, Maslanka asked what the Union would take as a minimum hourly rate, but Barnes never offered to take less than the 75-cent-per-hour increase already proposed. Maslanka and Schultz again asked why the Company couldn't be covered by the Chicago Movers Association contract (with Local 705) since Merchants was primarily a furniture mover. Barnes, whose Local was not a party to that agreement, rejected any transfer out of the PFD agreement because his Local had been administering that agreement for many years, and he was not about to change it. He offered, probably facetiously, to add "Movers" to the title of the PFD contract, but Maslanka pointed out that it wasn't a title change he was interested in, but the provisions of the Local 705 contract.2 Maslanka had by this time gone through all the substantive money items of the proposal, and to each one 2 The Local 705 contract is in evidence as G.C. Exh. 10. It is effective for as against an hourly rate of $5 32 under the Local 301 contract If the Local a 3-year term from January 15, 1972, thus overlapping the term of the 301 proposal for a 75-cent increase was approved , its rate after May 1, 1973, proposed PFD contract, which was to start May 1, 1973. The 1972 rate for would be $6.32, as against $5.64 per hour in calendar 1973 under the Local drivers of moving vehicles under the Local 705 contract was $5.09 per hour 705 contract. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had said that the Company could not afford the proposed 'increase, and as to pensions, that he didn't think it could fven keep up with the provision in the expired contract. Barnes then pointed out that the employees would lose their pensions, to which Maslanka answered, according to Barnes, that that was the way the ball bounces. Barnes said that Maslanka had no counter proposals to make, and that they were at loggerheads. He said he would have to go back to the membership to report, and Maslanka said that it was up to him, Barnes and Serdar then left. The meeting lasted between a half hour and an hour. No arrangements were made for another meeting. The next day, Barnes sent notices to the Local 301 members employed by the Company for a special meeting on July 5. On that day the men met, voted to reject Maslanka's offer and to strike. The strike began on July 9, and was still effective as of the date of this hearing, 3 months later. Soon after the strike began, much of the Company's equipment was repossessed under a delinquent chattel mortgage. The summer season, when the Company does the bulk of its moving work for the military has been lost. The Company offered to meet with the Union if it removed its pickets, while Barnes offered to negotiate at any time during the strike. No further bargaining sessions were held. Contentions, Analysis, and Concluding Findings Section 8(b)(3) of the Act makes it an unfair labor practice for the employees' bargaining representative to refuse to bargain collectively with their employer, much the same as its counterpart, Section 8(a)(5), imposes a correlative obligation upon the employer to bargain collectively with the employee representative. Section 8(d) defines the phrase "to bargain collectively" as "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other conditions of employment, . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession ... This case presents the question of the extent to which concepts utilized in 8(a)(5) cases as indicia of bad-faith bargaining are transferable to 8(b)(3) situations. Assuming that a Union has satisfied the formal requirements of Section 8(d) by meeting at reasonable times and conferring on wages, hours, etc., has not insisted on including illegal or nonmandatory clauses in the agreement, and has not engaged in any unilateral act which may be per se violations of the bargaining obligation, are there other conditions which must be satisfied, similar to those which have been imposed on employers in establishing that bargaining has been conducted in good faith? General Electric Company, 150 NLRB 192, enfd. 418 F.2d 736 (C.A. 2, 1969), cert. denied 397 U.S. 965 (1970), is a case which presents in full detail, in both the majority and dissenting opinions of the Board and the court, the theories and reasoning by which bad faith can be distinguished from good-faith bargaining in the case of an employer. An adequate summary of the facts of this complex case is unnecessary for my purpose ; very briefly, the conclusion of the Board and the court was that the Company had violated Section 8(a)(5) by its "entire course of conduct, its failure to furnish relevant information , its attempts to deal separately with locals and to bypass the national bargain- ing representative, the manner of its presentation of the accident insurance proposal, the disparagement of the Union as bargaining representative by the communications program, its conduct of the negotiations themselves , and its attitude or approach as revealed by all these factors." 150 NLRB 192, 196. In the shorthand phrase often used in 8(a)(5) cases, it is its "totality of conduct" which measures the Company's good or bad faith in bargaining.3 One of the factors relied on by the Board in determining the Company's "totality of conduct" was its "take it or leave it" attitude . As the Board put it: Thus, a party who enters into bargaining negotiations with a "take it or leave it" attitude violates its duty to bargain although it goes through the forms of bargain- ing, does not insist on any illegal or nonmandatory bargaining proposals, and wants to sign an agreement. For good-faith bargaining means more than "going through the motions of negotiating." "... the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground ...." Good-faith bargaining thus involves both a procedure for meeting and negotiating, which may be called the externals of collective bargaining, and a bona fide intention, the presence or absence of which must be discerned from the record . It requires recognition by both parties, not merely formal but real, that "collec- tive bargaining" is a shared process in which each party, labor union and employer, has the right to play an active role . . . Supra, at p. 194. (Footnotes and citations in the original are omitted). This seems to me to be saying that a "take it or leave it" stance in bargaining is a per se violation, but the thrust of the entire Board decision is rather that it may only be evidence of an intention not to adjust differences or to reach an acceptable common ground. The Court's opinion states it somewhat differently. In answering the dissent's argument that it never defines what "take it or leave it" means, the majority said that it does not consider the lack of major concessions as evidence of bad faith, but rather that if the Company had made major concessions, it would raise a strong inference of good faith. 418 F.2d 736 at 758. Further attempts to resolve the exact shade or tone of so elusive a concept as "take it or leave it" bargaining is probably fruitless. As the Supreme Court noted in N. L. R. B. v. Insurance Agents' International Union, AFL-CIO, 361 U.S. 477, at 486, "Obviously there is tension between the principle that the parties need not contract on any specific terms and a practical enforcement of the principle that they are bound to deal with each other in a serious attempt to resolve differences and reach a common ground." 8 See also, the court's statement on this point in section V of its opinion, 418 F.2d 736, 756 CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 301 787 The General Counsel's basic premise for its contention that the Union violated Section 8(b)(3) is that it did not intend to reach an agreement except on its own "take it or leave it" terms. He seeks to prove that proposition from the Union's totality of conduct, comprised of the following items. 1. In 1970, Barnes told Mrs. Schultz that she had to sign the contract which had been negotiated in Chicago, and as evidence that he never intended to vary those terms, he put before her a punted copy of that contract and insisted that she sign it immediately. This reveals, accord- ing to the General Counsel, a like intent on Barnes' part to force Schultz to sign first the interim agreement, and then the 1973 contract without negotiation. 2. Barnes refused to look at the Company's financial records which it offered as showing its inability to pay the rates set in the interim agreement and the new contract. This also is said to reflect the Union's "take it or leave it" attitude. 3. The PFD agreement (to which Local 301 and Merchants had been parties for at least 10 years) was not the proper contract for a moving firm such as Merchants, since it pertained to parcel and furniture drivers. Maslan- ka's offer to consider bargaining under the Chicago Furniture Movers contract was rejected by Barnes "with no intention of reconciling differences or offering conces- sions." 4. Finally, the General Counsel argues that the strike against Merchants, which began on July 9, and which was authorized and sanctioned by Local 301, is itself a violation of Section 8(b)(3) since it was in furtherance of its unlawful stance, and thereby excused the Company from its own obligation to bargain in good faith. Leaving item 1 aside for the moment, and proceeding to item 2, that Barnes refused to look at Merchant's financial records, I see nothing in that to prove that Local 301 wanted thereby to frustrate the reaching of an agreement. An employer violates Section 8(a)(5) if he refuses to produce his financial records in order to substantiate a claim that he is unable to meet a union's demands, but it does not follow that a union is guilty of a violation of Section 8(bX3) if it refuses to look at such records. An employer may offer less than it is able to pay, and a union may demand more than the employer is able to pay. I think the General Counsel's argument that Barnes exhibited bad faith by refusing to discuss transferring Merchants to the coverage of a different contract to which neither Local 301 nor Merchants had ever been a party is without merit. The employees of Merchants had designat- ed Local 301 as their representative; the description of the unit work in that contract covered drivers and dockmen, both of which are classifications employed by Merchants; the Merchants plant is within the territorial jurisdiction of Local 301, and there is no evidence that Local 301 was not capable or willing to represent those employees as adequately as it had in the past. Realistically, Maslanka 23 was only asking that the lower wage rates of the Chicago Furniture Movers contract be made available to Mer- chants, and Barnes was not obligated to grant such request. The General Counsel contends that the strike against Merchants was an independent violation of Section 8(bX3) because it was in furtherance of its unlawful bargaining posture. He recognized that a strike during bargaining is not inconsistent with the duty to bargain in good faith. However, he analogizes the situation here to those in which the Board and courts have found that strikes to obtain clauses deemed unlawful under the Act are themselves unlawful, and to lockouts which have been found to be unlawful because they were being used to avoid bargaining entirely. His argument depends on a prior finding here that the Union was already engaged in an unlawful refusal to bargain by virtue of its bargaining demands and posture. That is the crux of the case. The same central issue is also raised by the General Counsel's first point in his argument, that the Union's attitude to bargaining was unlawful because of its inflexible and unyielding demand that all its proposals be accepted without change. I find, first of all, that the only two bargaining sessions held between the parties resulted in a bargaining impasse. The only issues they faced were the economic issues of wages and fringes. I am satisfied that the Company was not prepared, and was probably unable, to pay anything close to what the Union was demanding. The gap between their respective expectations was so wide and unbridgeable that the parties early realized there was no possibility that further discussions would result in a compromise. The Union wanted an agreement on its terms, but then so did the Company, despite its reluctance ever to state what it was able or willing to pay. Neither was required, under Section 8(d), to agree to the other's proposal nor to make any concession, and I therefore find that the Union's position during bargaining, considered either alone or under the formula of "totality of conduct" was not unlawful.4 It follows that the ensuing strike, designed to bring pressure on the Company to accept the Union's terms, was also not unlawful. Some further comments on, or explanation of my finding may be appropriate here. It may be that a union is guilty of bargaining in bad faith if it singles out an employer in the industry where its activity is concentrated, by demanding more onerous contract terms from him than it is willing to accept from his competitors, in order to drive him out of business. But that is not the situation here, even if ultimately the Union's demands make it impossible for Merchants to compete. The Union is seeking for its members employed at Merchants the same wages, pensions and other benefits that it has gotten for the employees of other employers in the area. It has an obligation to those whom it represents to seek equal pay and fringe benefits for similar work, regardless of who employs them, and if its judgment is to pursue that goal without regard to possible business failures, it seems to me that the Board is not 4 Ben Cutler v N L R B, 395 F 2d 287 (C A 2, 1968), enfg 164 NLRB union fail to bargain in good faith by informing Cutler that its members would not work for him unless he paid them in accordance Concededly, in the present case , the bargaining power of Local 802 with the revised bylaws. It is clear from N LR B v Insurance Agents' so greatly exceeded that of Cutler that he would be almost compelled to International Union, supra, that "the use of economic pressure . is of accede to most of the Union's demands But it is no violation of the Act itself not at all inconsistent with the duty of bargaining in good faith." for a labor organization to be economically powerful. Nor did the 361 U S at 490-491 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD empowered, by interpreting the good-faith requirements of Section 8(b)(3), to force it to moderate its demands. The following quotation from Judge Friendly's dissent in the General Electric case (418 F.2d 736 at 769) has no precedential value since it is both a dissent and a dictum, but it sums up my position so well that I offer it for its intrinsic persuasiveness: It surely cannot be, for example, that a union intent on imposing area standards violated Section 8(b)(3) if it refused to heed the well-documented presentation of an employer who insists that acceptance of them will drive him out of business. Neither can it be that a union violates Section 8(b)(3) if it insists on its demands because it knows the employer cannot stand a strike .3 9 Cutler v N L R B, 395 F 2d 287 (2 Cir 1968), is another illustration of union obduracy. Although the employer's failure to press his demands made it possible for this court to uphold the decision in favor of the union without reaching the issue of overall good faith, it would require some naivete to suppose that any efforts by the employer in that case to get the musician' union to alter its wage scale would have borne the slightest fruit I conclude, based on the foregoing discussion, that the Union did not violate Section 8(b)(3) in its dealings with the 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 Company over the interim agreement or the proposed 1973 PFD contract, or by its strike. CONCLUSIONS OF LAW 1. Merchants Moving and Storage, Inc., is engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers Local Union No. 301, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices alleged in the complaint. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS It is hereby recommended that the complaint be dismissed in its entirety. 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