Dust-Tex Service, Inc.

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dust-Tex Service, Inc. and Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Help- ers, Warehousemen, Yardmen and Allied Workers, Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America . Case 14-CA-7738 October 29, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 25 , 1974, Administrative Law Judge Ber- nard Ness issued the attached Decision in this pro- ceeding. Thereafter , the General Counsel filed excep- tions and a supporting brief, and Respondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge , except as modified herein ,' and to adopt his recommended Order, as modified. We agree with the Administrative Law Judge's conclusions that Respondent violated Section 8(a)(5) and (1) of the Act by effectuating its proposed changes in the employees ' wage structure without bargaining to impasse with the Union, by negotiating 1 The Respondent and the General Counsel have 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 resolu- tions 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 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for revers- ing his findings Respondent contends that its action with respect to employees Behrens, Dreyfus, and Walker on December 1, 1973, constituted a lawful preimpasse lockout and was not, therefore, violative of Sec 8 (a)(3) and (1) of the Act We find this contention without merit It is clear from the record and from the Administrative Law Judge 's Decision that Respondent discharged Beh- rens, Dreyfus, and Walker because they exercised their protected right to refuse to accept changes in their conditions of employment to which their collective-bargaining representative had not acquiesced Accordingly, we cannot agree with Respondent that by not permitting the three men to work it was merely taking lawful economic action in support of its bargaining position 2 The General Counsel has excepted to the Administrative Law Judge's failure to order Respondent to bargain with the Union, upon request, with respect to the wages, hours, and working conditions of the employees in the unit We agree with the General Counsel that, inasmuch as the Union re- mains the exclusive bargaining representative of the employees in the appro- priate unit, Respondent is under a continuing obligation to bargain with the Union We shall modify the recommended Order accordingly terms or conditions of employment directly with em- ployees, and by threatening employees with termina- tion if they refused to accept the proposed changes. We further agree that the discharges of employees Behrens, Dreyfus, and Walker violated Section 8(a)(3) and (1) of the Act. We also agree with the Administrative Law Judge's findings that Respondent violated Section 8(a)(1) of the Act by the conduct described in his Decision. In addition, we find, contrary to the Ad- ministrative Law Judge, that Respondent violated Section 8(a)(1) by the following conduct. In Septem- ber 1973, Respondent's general manager, Catalano, told employee Dreyfus that Respondent's president, Matthey, "would like to get out of the Union," and in October Catalano said to Dreyfus that "Matthey wanted out of the union and he wanted [the employ- ees] as independent contractors." We find, as con- tended by the General Counsel, that these statements by an agent of Respondent, in the context of Respondent's subsequent unfair labor practices di- rected towards getting rid of the Union, were an at- tempt to solicit the employees to abandon the Union. Accordingly, we find that Catalano's above remarks constituted a separate violation of Section 8(a)(1) of the Act. ADDITIONAL CONCLUSION OF LAW We adopt the Conclusions of Law of the Adminis- trative Law Judge but make an additional conclu- sion. Insert the following as paragraph 7 and renum- ber the remaining paragraphs accordingly: "7. By soliciting employees to abandon the Union as their collective-bargaining representative, the Re- spondent has interfered with, restrained, and coerced its employees in the exercise of their protected rights and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that Respondent, Dust- Tex Service, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modi- fied below: 1. Insert the following as paragraph 1(b) and relet- ter the subsequent paragraphs accordingly: "(b) Soliciting employees to abandon the Union as their collective-bargaining representative." 214 NLRB No. 60 DUST-TEX SERVICE, INC. 2. Substitute, for the first word in paragraph 2(a), the word "Reinstate." 3. Insert the following as paragraph 2(d) and relet- ter the subsequent paragraphs accordingly: "(d) Bargain in good faith, upon request, with the Union as the exclusive representative of the employ- ees in the aforesaid appropriate unit, concerning wages, hours, and other terms or conditions of em- ployment, and embody in a signed agreement any understanding reached." 4. Substitute the attached notice for the Adminis- trative Law Judge's notice. 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 collectively with Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehouse- men, Yardmen and Allied Workers, Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, by changing the wages or other terms and conditions of em- ployment of our employees in the appropriate unit stated below without bargaining collectively with the Union to an impasse about such changes. The appropriate unit consists of: All driver salesmen employed by Respondent at its St. Louis, Missouri facility, excluding of- fice clerical employees, professional employ- ees, guards, supervisors as defined in the Act, and all other employees. WE WILL NOT solicit our employees to aban- don the Union as their representative for pur- poses of collective bargaining. WE WILL NOT negotiate directly with our em- ployees concerning changes in rates of pay, wag- es, hours of employment, and other terms and conditions of employment in derogation of their exclusive bargaining representative. WE WILL NOT discharge, threaten to discharge, or otherwise discipline employees in the appro- priate bargaining unit who refuse to accept uni- lateral changes unlawfully imposed concerning rates of pay, wages, hours of employment, and other terms and conditions of employment. WE HEREWITH revoke the unilateral changes 399 made in the method of compensation and the employment status of the employees in the ap- propriate bargaining unit. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL reinstate Charles Behrens and David Dreyfus to the positions they held under the terms and conditions prior to our unilateral changes in the employment status of the em- ployees in the appropriate bargaining unit with- out prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered. WE WILL offer to Kermit Walker immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his se- niority or other rights and privileges, and make him whole for any loss of earnings he may have suffered. WE WILL bargain in good faith, upon request, with the Union as the exclusive representative of the employees in the aforesaid appropriate unit, and embody in a signed agreement any under- standing reached. DUST-TEX SERVICE, INC. DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: This proceed- ing was heard in St. Louis, Missouri, on March 20-22, 1974, pursuant to a charge filed on January 4, 1974, by Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen, Yardmen and Allied Workers, Local Union No. 682, affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union,' and a complaint issued on February 6, 1974, as amended on February 28, 1974, and further amended at the hearing, against Dust-Tex Service, Inc., hereinafter re- ferred to as the Respondent. In issue are the questions whether the Respondent, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, un- lawfully discharged and refused to reinstate four employ- ees, unlawfully refused to bargain in good faith in violation of Section 8(a)(1) and (5) of the Act, and engaged in other acts of interference, restraint, and coercion of employees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act. The Respondent in its answer has denied An opposed motion was granted to correct the name of the Union to that appearing in the caption 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the commission of any unfair labor practices. Upon the entire record, including my observation of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the fol- lowing: 2 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The facts found herein are based upon the pleadings and the admissions made by the Respondent at the hearing. The Respondent, a Missouri corporation, is engaged in the rental of industrial cleaning supplies and related products at its place of business in St. Louis, Missouri. During the calendar year 1973, which period is representative of its operations during all times material herein, Respondent, in the course and conduct of its business operations, provided services to customers in excess of $50,000. Said services were rendered directly to customers located in States other than the State of Missouri or to customers located in Mis- souri, each of whom annually either produces and ships goods and performs services valued in excess of $50,000 directly to and for customers located outside the State of Missouri, or purchases goods and materials valued in ex- cess of $50,000, which are transported and delivered to such enterprise in Missouri directly from suppliers located outside the State of Missouri. The parties agree and, based upon the foregoing, I find that Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Respondent, through its membership in a multiemployer association," had a bargaining relationship with the Union covering its driver-salesmen. The most recent contract be- tween the parties was from December 1, 1969, to Decem- ber 1, 1972, extended for 1 year to December 1, 1973.1 Prior to commencement of negotiations, Respondent time- ly withdrew from the Association and gave the Union its termination notice and requested negotiations for a new contract. Two negotiation meetings were held-November 19 and November 29. The stumbling block to reaching agreement was wages. On December 1, immediately upon expiration of the contract, the Respondent implemented its 2 The transcript of the record contains a number of erros. I have listed a number of corrections limited to those where the intended language is fairly ascertainable from the context in which the errors appear Accordingly, the transcript of the proceedings has been corrected accordingly 3 Linen Retail Employers Association 4 Unless otherwise indicated, all dates hereinafter refer to 1973 proposed changes in compensation and in the status of its employees. Three of the four driver-salesmen employed by the Respondent at the time were asked by Respondent to work under the changed system and they refused.' They were not permitted to return to work. The fourth was dis- charged, allegedly for poor work .6 The General Counsel alleges in his complaint that Re- spondent violated Section 8(a)(5) of the Act by ( a) negoti- ating directly with the employees, threatening them with reprisals, and thereafter discharging the employees in the bargaining unit because of their activities on behalf of the Union and in order to undermine the Union; (b) negotiat- ing in bad faith with no intention of reaching an agree- ment; and (c) unilaterally altering the terms and conditions of employment. The complaint further alleges that the four driver-salesmen were unlawfully discharged on November 30 in violation of Section 8(a)(3) and (1) of the Act. The complaint also alleges independent acts of interference, re- straint, and coercion in violation of Section 8(a)(1) of the Act. The principal issue involved is whether or not the Re- spondent was privileged by an impasse or other consider- ations to implement its contract proposal upon expiration of the contract between the parties. Also involved is the status of the three drivers who refused to work under the implemented changes in the wage structure and the fourth who was discharged outright allegedly for poor work. B. The Respondent's Operations The Respondent is engaged in the business of renting industrial cleaning supplies and equipment such as mops and mats to service institutions, retail stores, and industrial establishments. Lee Matthey, Jr., is the Respondent's presi- dent and chief operating official of the Company. Second in command is the general manager, Anthony Catalano. The Respondent regularly employed four driver-salesmen, each of whom covered designated routes each day. Each morning, they would pick up their supplies at the Respondent's facility and then deliver the clean mops, mats, and other supplies to the customers and retrieve the dirty material. Upon completion of their routes, they would return to the Respondent's place of business. They drove company trucks and were permitted to take the trucks home each evening and on weekends. Under the terms of the contract with the Union which expired on November 30, the drivers were paid $204 per week.' Al- though not fully explicated in the record it appears, based on the testimony of Dreyfus and Behrens, that the driver- salesmen in December 1972 obtained withdrawal cards from the Union and thereafter for a period of several months possessed some form of independent contractor status. C. Independent Acts of Interference Restraint and Coercion 1. The complaint alleges that in early September Catala- no solicited employees directly to induce them to refrain s Charles Behrens, David Dreyfus, and Kermit Walker 6 Arthur Heidke 7 $5 10 per hour with 40 hours guaranteed DUST-TEX SERVICE, INC. from remaining members of the Union or give assistance or support to it. In support of this allegation, Dreyfus testified he had a conversation with Catalano about mid-September at the Respondent's loading dock. He testified Catalano "made the comment that Mr. Matthey wanted to offer us 15 per- cent gross sales and we maintain our trucks" and that "he would like to get out of the union." About a week or two later Catalano told him Mr. Matthey "wanted to give us a proposition of 21 per cent and he would maintain the trucks." Dreyfus further testified that on other occasions he talked with Catalano about what would happen when the contract expired and that sometimes he initiated the conversation. He stated that in October, Catalano told him "Mathey wanted out of the union and he wanted us as independent agents." Behrens testified as to a conversation with Catalano in September. Catalano had brought some supplies to him at a customer's premises.8 Behrens testified he asked what was going to happen when the contract expired. Catalano replied that Mr. Matthey wanted to give the employees 15 percent straight commission. Behrens further testified he had another conversation with Catalano on the same sub- ject in October. Catalano told him the Respondent would probably propose a 21-percent commission and the drivers would operate under some form of independent contractor relationship as they had for several months early in 1973. On cross-examination Behrens conceded that at the time of this conversation the Union had requested his discharge if he didn't pay his dues. He admitted he told Catalano he was undecided whether to stay in the Union and that Cata- lano urged him to stay in the Union.9 Catalano denied telling the employees what would or might happen upon expiration of the contract or what the Company's proposals would be. He testified that in Sep- tember Matthey told him he was going to notify the Union of his intention to terminate the contract and intended to get a new contract with an incentive system Matthey told him not to discuss the details with any employees. Catala- no further related he was unaware of any specific proposals to be made to the Union until November 17- -2 days be- fore the first negotiation meeting.10 I do not credit Catalano's denials. Although he may not have been aware of the specific proposals which Matthey would ultimately present to the Union, I am convinced he was aware of Matthey's intentions to change the wage structure to pro- vide for an incentive system and probably some form of independent contractor status for the drivers. Accordingly, I find that Catalano told Dreyfus and Behrens the Respon- dent wanted to change the wage structure and the status of employees to independent contractors. I further find that Catalano told Dreyfus that Matthey "wanted out of the Union." The General Counsel contends in his brief that by the aforementioned remarks the Respondent was soliciting the employees individually to get their reaction to proposals 8 Jennings High School 9 This coincides with Catalano's testimony It should be noted the con- tract contained a union-security clause 10 Corroborated by Matthey 401 designed to induce them to abandon the Union. I do not agree. Both Dreyfus and Behrens testified they were con- cerned about their status when the contract would expire and themselves made inquiries of Catalano. Catalano only expressed his opinion of what the Respondent wanted and what it would propose. I do not construe these remarks to convey the impression that Respondent intended to change the wage structure or the status of the employees without first pursuing negotiations with the Union. Nor do I be- lieve Catalano was attempting to solicit reactions from the employees or attempting to get them to desert the Union His remark that Matthey wanted out of the Union is am- biguous and its significance is entirely speculative. It may be that Catalano intended to convey the thought that Mat- they wanted the drivers to be converted to a form of inde- pendent contractor status without being required to be a member of the Union. Here too, I do not believe this re- mark to be violative of Section 8(a)(1) of the Act. li Accord- ingly, I shall recommend this allegation of the complaint be dismissed. 2. The complaint alleges that in the middle of Septem- ber, Matthey threatened an employee that all employees in the bargaining unit would be terminated upon expiration of the contract unless the employees accepted Respondent's contract proposals to be made in subsequent negotiations. Dreyfus testified that about mid-October he encountered Matthey in the plant. According to Dreyfus, he greeted Matthey and Matthey responded by pointing his finger at him and said, "come November 30th I was out of a job to start looking for a different job." Matthey denied making the statement attributed to him by Dreyfus. Dreyfus im- pressed me as an honest witness intent on presenting the truth frankly and without overstatement and I credit him. I find Matthey's threat violative of Section 8(a)(1) of the Act. The threat of termination was not based upon short- comings of Dreyfus as an employee since Respondent ac- knowledged he was a good employee. Matthey implied that when the contract expired Dreyfus would be terminated if he would not accept changes in the working conditions that Matthey intended to implement. 3. The complaint alleges that in November Paul Brown, a salesman, as Respondent's agent, interrogated employees as to their willingness to accept Respondent's forthcoming contract proposals. Both Dreyfus and Behrens credibly testified that in No- vember, shortly before the expiration of the contract, Brown arranged to meet with them in a bar after work. At their meeting, Brown outlined to them what he said they would get from the Company upon the expiration of the contract-$250 weekly guarantee and 21-percent commis- sion over a certain amount of sales, and in return the em- ployees would pay the Company $30 per week for the use of the company truck plus $15 or $16 per week for gas and oil.', 11 This speculation on my part as to the significance of Catalano's remark is based in part on a proposal made by Matthey at a later date, at the first negotiation meeting on November 19 when Matthey proposed a form of independent contractor status for the drivers with their option of remaining in the Union 12 This closely parallels the Respondent's offer to the Union 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown is a salesman for the Company who solicits new accounts, occasionally fills in for the drivers when they are out, and occasionally makes special runs to customers. The parties agree he is not a supervisor nor has he been includ- ed in the bargaining unit. He testified the meeting was ar- ranged by Dreyfus and Behrens and that the three sat around speculating what the Company would offer and that he had no knowledge of what the Company would offer. There is no testimony that Brown was requested by the Respondent to meet with the employees or to discuss company proposals with them. In absence of any agency relationship, I shall recommend dismissal of this allegation. 4. The complaint alleges that in November, Catalano threatened that all employees in the bargaining unit would be discharged unless they accepted the Respondent's con- tract proposals. On November 8, Respondent placed an ad in the news- paper for driver-salesmen.13 Shortly thereafter two employ- ees were hired and rode with Heidke and Walker on their routes. Dreyfus testified that sometime thereafter, still in November, he was told by Catalano that the new men were going to replace the employees on the routes after Novem- ber 30.14 Walker testified that on November 24 Catalano told him, "Well, Kerm, I guess you're going on another paid vacation." He did not recall any other comments made in this conversation. Heidke testified that shortly after a new employee was assigned to accompany him on his route he engaged Cata- lano in conversation. His testimony follows: A. I asked Mr. Catalano about the men riding on the trucks and he said they had accepted an indepen- dent contract offered by Mr. Matthey and I then asked him what about, you know, what would happen to us drivers and he said, "Well," he said, "Kermit and I had made it clear to him that we didn't want the offer and that Mr. Behrens, he told me that Mr. Beh- rens and Mr. Dreyfus, he wasn't sure about them be- cause they had taken the offer last year." Q. And what did he say about your continued em- ployment after the end of the contract? A. Oh, I was asking him what would happen to us and he said, "Well, if you don't want the contract," he said, "you will probably be out of work." Q. What do you mean by "the contract," do you know? A. This offer, I was never made the offer but I knew what it was. Q. I see. Did you say anything about fringe bene- fits? A. Oh, I asked him about the hospitalization, and so forth, again, and he said, well, then, under the new contract, he said, if you wanted to work hard and long hours he said you could make quite a bit of money, and you could pay for your own hospitalization. I asked him what about the retirement, and he said, "Well, you can make a lot of money," he said, "You won't need retirement." I proceeded to ask him about Mr. Walker. I said, "Well, the man's going to retire before too long," I said, "Are you dust going to kick him out, and, you know, blow his retirement?" and he said "Well, that's up to the man," he said, "If he doesn't want the offer he will be out of work." Catalano denied making the statements attributed to him. I credit the testimony of Dreyfus, Walker, and Heidke in this connection and find that Catalano made the remarks to the employees as described above. However, I find that his statement to Walker, in absence of any testimony regard- ing the context in which it was made, is vague and ambigu- ous and, accordingly, I do not find it violative of the Act. On the other hand, Catalano's statements to Dreyfus and Heidke conveyed clear threats to the employees that the bargaining unit employees who did not accept Respondent's intended changes in their status or method of compensation would be replaced. I find these statements violative of Section 8(a)(1) of the Act. D. The Alleged Refusal to Bargain The contract between Linen Retail Employers Associa- tion and the Union was due to expire on November 30. The Respondent timely withdrew from the multiemployer group and by letter dated September 12 informed the Union of its action. The letter also contained a notification of contract termination upon its expiration and a request to set up a meeting for the purpose of negotiating a new con- tract. By letter dated October 16 the Union replied it would submit proposals for a new contract. By letter dated No- vember 6 the Respondent suggested three dates available to it to begin negotiations. The parties then agreed to meet on November 19.15 Prior to the first meeting, the Union submitted its proposals for modifications to the Respon- dent. The November 19 Negotiating Meeting Present for the Respondent were Matthey, Catalano, and Don Keithley, general manager of a related company owned by Matthey. The Union was represented by Gene Walla, its president, Robert Sansone, recording secretary, and Paul Reynaud, business representative for the Union's laundry division. Matthey and Walla were the principal spokesmen. Under the existing contract due to expire at midnight, November 30, the driver-salesmen received $204 per week ($5.10 per hour with 40 hours guaranteed). The discussion at the meeting focused principally upon wages. During the course of the meeting, Matthey proposed two different plans involving the wage structure, referred to as Plan A and Plan B. Only Plan A was submitted in writing at the 13 G C Exh 3 It offered $200 per week guaranteed plus commission The same newspaper ad appeared during the first week in December 14 Only one was still employed on November 30 15 The parties agree and I find the appropriate unit to be All driver salesmen employed by Respondent at its St Louis, Missouri, facility, ex- cluding office clerical employees, professional employees, guards, supervi- sors as defined in the Act, and all other employees DUST-TEX SERVICE, INC 403 meeting. Plan B was described orally meetmg.16 by Matthey at the proposed plan B, stating, "Look, we have got a plan. We Plan A. Routemen shall be paid a commission of 15% on all Dust-Tex service delivered . Routemen will be allowed a weekly drawing account of $165.00, payable each week . The routeman's earnings, based on the 15% commission , will be applied toward his weekly drawing account on a cumulative basis (week to week). When a routeman's earnings exceed his total draw, he will receive that excess in cash that week along with his draw. When his drawing account is in a deficit position, his earnings in excess of $165.00 per week will be applied toward the deficit until the deficit is eliminated . The drawing account of each routeman will be on a calendar year basis commencing the first complete week in January and ending the last com- plete week in December. Under this plan, the company would continue the present welfare and pension payments to the Union in the employees behalf but would not pay anything into the Supplemental Fund. (See actual Proposal for any other details) Plan B . Route would be serviced by an independent agent (non employee) and paid a flat commission of 21% of all Dust-Tex sales. Agent would be guaranteed a gross income of $1,000.00 every four weeks. Company would (at agent's option) lease a truck to agent for $30.00 per week. Agent can also provide his own truck if he so chooses. In view of the impending gasoline shortage, company will reimburse agent for all gasoline and oil expense necessary to run his route that exceeds an allocation of $64.00 per month. Under this plan, all commissions earned in excess of $1,000.00 for each four week period shall be paid at the end of each four week period At this time any gasoline and oil expense that exceeds $64.00 for the four week period will also be paid by the company. Example: Minimum 4-week income $1,000 Four week leasing cost (if need) 120 Maximum 4-Wk gas & oil cost 64 Total Minimum 4-week earnings $816 Matthey detailed his reasons for wanting to change from a straight hourly rate to an incentive system and submitted economic reasons to justify his desires. While discussing the Company's economic situation under the existing wage structure, Walla remarked that he was obligated to repre- sent the unit employees. Matthey then remarked, "Well, look, in that event, why don't you do this, why don't you let these men operate with us on a contract basis wherein they can be in the union or out of the union at their own option. Then we can both solve our problems " He then 16 Both plans (in writing) were later shown by Matthey to the employees on December I guarantee these men a thousand dollars every four weeks with a $30 a week truck lease, with a maximum gasoline allowance due to this energy shortage of $16 so that the men would be guaranteed $204 a week. If those men went out and worked their routes they could make well over $300 a week net." Matthey admitted to Walla that the men would then have to pay for their own fringe benefits. Walla said he wouldn't consider plan B. Matthey then presented plan A in writing to the Union. Walla said he had no ob- jection to an incentive system and thought something could be worked out on a commission basis. He asked Matthey if he thought a contract could be agreed upon provided they agreed on economic issues. Matthey's re- sponse was, "Frankly, Gene, a lot of other things we have got in our agreement here are strictly for bargaining pur- poses. As far as I am concerned, if we can get together on the economics where we can keep our costs within the 15 per cent area, I am pretty positive we can get agree- ment." 17 Walla remarked he needed time to study and evaluate the Company's proposal. He observed that as it appeared to him the Company's proposal (plan A) would result in the bargaining unit employees receiving less re- muneration than under the existing contract and before he would agree to any proposal resulting in a loss of pay he would use his "economic strength." Upon prodding from Matthey as to what he meant, Walla explained that he meant picketing a related company owned by Matthey. Matthey refused to agree to any retroactivity. The parties agreed to meet again on November 29. The November 29 Negotiation Meeting Walla proposed an 18-percent commission on top of the $165 account plus certain fringe benefits. Matthey rejected this proposal and indicated he was receptive to improving the amount of the draw. Considerable discussion then took place regarding guarantee as compared to draw. Matthey held firm to a 15-percent commission and Walla spoke in terms of 18 percent. During the course of discussing their proposals 18 Matthey announced they had reached an im- passe Walla replied, "For now." Matthey said he intended to offer the proposals to the employees 19 and asked if the employees would work under his proposals upon expira- tion of the contract. Walla responded that the Company was obligated to retain the existing conditions until the parties reached an agreement and the employees could not work under a changed work structure. As the meeting closed, Walla proposed another meeting on December 7. Matthey said he would let Walla know on December I when they both were scheduled to meet in negotiations involving the Union and an employer association of which one of Matthey's related companies was a member 2° Mat- 17 Included in the Company's proposals submitted to the Union on No- vember 19 was elimination of the union-security clause 18 Matthey described it as "hemming and hawing " 19 Walla had said he had not informed the unit employees of the Respondent's proposals 2 All the participants at the meetings testified at the hearing except for Walla who was out of the city and unavailable at the time of the hearing. I find the above facts from mutually corroborative testimony of the witnesses Continued 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they did not contact Walla on December 1 and as of the time of the hearing, no further meetings have been held. The Implementation of Respondent's Proposed Change in the Wage Structure and its Effect on the Employees On Friday afternoon, November 30, when Behrens, Dreyfus, and Walker returned to the plant upon comple- tion of their routes, Catalano asked for the keys to the trucks and requested them to report on Saturday to meet with Matthey 2' Catalano did not explain why they couldn't take the trucks home for the weekend which had been the normal custom, nor did he explain why they were to meet with Matthey. Dreyfus, Behrens, and Walker were scheduled to meet individually with Matthey at hourly in- tervals beginning, respectively, at 7 a.m.22 At the Saturday morning meetings Matthey held individ- ually with Behrens, Dreyfus, and Walker, he showed them a two-page document he had prepared.23 The second page fully described plan A and plan B. The first page was as follows: To: Mr. Charles Behrens Mr. David Dreyfus Mr. Kermit Walker Gentlemen: For the past five years our company has experienced a zero growth rate per route while operating under the flat rate (no incentive) salary structure that the union insisted on. This remuneration policy has increased our wage and fringe routemen's cost to go from 15.55% to 22.70% of our total route sales dollar vol- ume. This information and other pertinent data was pre- sented to Local 682 of the Teamsters Union. The Union was also informed that the economics of our business did not permit us to continue under the terms of the contract that went out of existence on Novem- ber 30, 1973. Our company proposed several changes in the Union contract along with two incentive plans for paying our routemen for their services. The Union considered our proposals and after ten days informed us that there was no way that we could come to an agreement at this time. Testimony of any of these witnesses which conflicts with these findings is not credited 21 They were not scheduled to work on Saturday 22 Based upon Catalano's credited version of his conversation with Held- ke, when Heidke reported back from his route on Friday afternoon, Catala- no handed him a dismissal letter The letter , dated November 30, stated his dismissal was effective December 7 and explained his discharge was due to the poor manner in which he handled his route He was not scheduled to see Matthey on Saturday morning f do not credit Heidke's testimony that he was told by Catalano to report on Saturday when he was first given the dismissal letter 27 G C Exh 5 The necessity of serving our customers as per schedule next week is essential to the survival of our firm. We feel that the continuity of your employment with our firm on a basis which we can afford is mutually essen- tial to both you and our company. We are therefor offering you employment on the basis of either one of the two proposals offered to the Union. The details of the two plans are described on the following page. I accept Plan A. I accept Plan B. I accept neither. The employees read the document and Matthey asked them to accept either one of the two plans. Matthey told them neither of the plans was acceptable to the Union. Walker rejected it outright. Dreyfus told Matthey he couldn't accept it, that it was "not fair to me or to the other boys or to the union without getting their advice." Matthey asked him to consider it and return at 2 p.m. for further discussion. Dreyfus did not return. Behrens told Matthey he didn't think he could accept either plan. He did not communicate later with Matthey. Matthey explained it was under his direction the em- ployees were not permitted to take the trucks home for the weekend because he didn't know whether they would show up on Monday. He testified that had they agreed on Satur- day to accept either plan A or plan B, he would have per- mitted them to take the trucks home and to continue work- ing. Matthey's explanation for meeting with Behrens, Drey- fus and Walker on December I was as follows: The purpose of these, presenting these proposals was for us to find out what these men intended to do as far as coming back Monday morning. We felt that these men had indicated to us by merely saying they would take one proposal or the other, we would want to give them the keys to the truck and have them take the truck on home, so we would know that we would have men available Monday morning; because when we left the meeting with the union, there was a tre- mendous doubt in our mind as to whether these men were going to show up Monday morning. He conceded he did not ask the employees if they would report for work on Monday, the next working day, under the wage structure in the contract that expired the mid- night before. All three employees credibly testified they had fully intended reporting for work on, Monday under the existing conditions and had not contemplated any strike action nor had they had any discussion with the Union about any strike action. Dreyfus, who had been employed by Respondent since 1964, returned to work on February 12, 1974 . Sometime in January he spoke to Catalano and said he was available for work. Then Matthey again offered him either of the two plans previously offered to him which Dreyfus again reject- ed. Then in early February, Catalano contacted him and DUST-TEX SERVICE, INC. asked him to return to work under the same wage structure as existed in the contract that had expired while negotia- tions went ahead for a new contract. Dreyfus accepted and returned on February 12. Behrens was also contacted to return also under the preexisting wage structure and accepted. He returned on February 14, 1974. Catalano also testified both Dreyfus and Behrens were reinstated under the same wage structure as existed before. He specifically stated they were not reinstated under plan A or B. Matthey testified to the contrary. He stated they were returned to work under plan B although they received the same amount of gross pay-$204. The pay stubs, ac- cording to him, did not reflect deductions called for in plan B. It appears to the undersigned that the employees upon reinstatement do receive the same amount as before-$204 per week, less deductions for withholding and other deduc- tions made as before, but nevertheless under plan B. This is not to say that Catalano or Dreyfus or Behrens are aware of this. Walker was not asked to return to work. He had been employed by the Respondent since February 1968 and had intended to retire in April 1974. He had made his inten- tions known to Respondent in the fall of 1973. He had filed retirement papers in October 1973 to be processed under a Central States Retirement Program, not otherwise ex- plained in the record. The retirement was to be effective in April when he attained 57 years of age. Whether he retired under this program, the record is silent He commenced employment with a municipal school district in February 1974 where he was still employed at the time of the instant hearing. E The Discharge of Arthur Hetdke Heidke began his employment as a driver salesman with the Respondent in June 1973. Considerable testimony was adduced through Catalano regarding the poor manner in which he serviced his route and complaints from custom- ers. Although it appeared to me that Catalano attempted to embellish Heidke's deficiencies somewhat I am satisfied that the Respondent received numerous complaints from customers serviced by Heidke and despite his explanations, the Respondent believed him to be careless and derelict in the performance of his duties. The decision to terminate Heidke was made in late October. The ad for employees first appearing in the newspaper on November 8 was moti- vated in part to seek a replacement for Heidke. His termi- nation notice was given to him on November 30, effective December 7.24 He rejected the offer to continue until De- cember 7 under the wage structure then in existence. Un- like the cases of the other three alleged discrimmatees, I find that Respondent discharged Heidke because of its dis- satisfaction with his performance of duties and was not based on unlawful considerations. I shall therefore recom- mend that this allegation of the complaint be dismissed. 24 Under art XIII of the contract expiring on November 30, the Employ- er was required to give I week's notice in case of termination 405 Analysis and Conclusions It is well settled that an employer who takes unilateral action regarding terms and conditions of employment then in the process of being negotiated with the exclusive bar- gaining representative of his employees violates his collec- tive-bargaining obligation under Section 8(a)(5) of the Act unless the parties have reached a genuine impasse in nego- tiations.25 The Respondent contends that an impasse had been reached in this case at the time it implemented its changes in the wage structure at the expiration of the con- tract on December 1. I cannot agree. A genuine impasse in negotiations is one where despite the parties' best efforts to achieve an agreement, neither party is willing to move from its respective position.26 I am convinced that Matthey had a fixed determination to change the wage structure immediately upon expiration of the contract from that provided for in the contract regard- less of the status of negotiations. December I was Matthey's target date for the change. Negotiations had not even begun when both Catalano and Matthey had told the unit employees they would be out of jobs come the expira- tion of the contract. Even before the negotiations had be- gun, in early November the Respondent had placed an ad in the newspaper for route salesmen. As Matthey himself stated, his motive for seeking new employees then had a two-fold purpose-to obtain a replacement for Heidke, and "in the event we had a work stoppage." According to the Respondent, it took several weeks to break in a new man. Matthey was uncertain whether his unit employees would work under his contemplated changes which had not yet been submitted to the Union and accordingly he was preparing to have replacements available in the event his unit employees found his changes in the wage structure to be unacceptable.27 At only one meeting was there any meaningful discussion of one of the proposals-plan A. The Company's proposals were first submitted to the Union at the first meeting on November 19. Walla said he wanted time to study plan A and indicated he was recep- tive to a commission basis. Matthey's pronouncement at the November 29 meeting that the parties had reached an impasse was only a self-serving statement artificially creat- ed and motivated by his desire to implement a change to the existing wage structure immediately upon expiration of the contract. I do not attach any real significance to Walla's response-"For now"-to Matthey's impasse dec- laration. I do not view this as an acknowledgment by Wal- la that an impasse had been reached. Rather I would look upon his statement merely as recognition that the parties were not yet in agreement after this one meeting of sub- stance. Walla had proposed a higher commission basis than that offered by Matthey but this is not to say that as a result of that one meaningful meeting, the positions of both parties were so solidified as to be immovable. It may be that Matthey did not want to move beyond the 15- percent commission but he appeared to be flexible on the amount of the draw. I do not believe that the Union's post- 25 N L R B v Katz et a!, 369 U S 736 (1962) The Respondent does not point to other "circumstances" to justify the unilateral action 26 Hi-Way Billboards, Inc, 206 NLRB 22 (1973) 27 He testified he prepared his proposals on November I 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion was fixed and uncompromising. The Union asked for another meeting for 8 days later but Matthey did not con- firm it, instead implementing the changes . Strangely, while the negotiations focused principally on plan A, plan B hav- ing been somewhat brushed aside at the first meeting, it was plan B that Matthey said he put into effect . It should be noted too that under plan B , the driver-salesman would not even be considered an employee, but to use Matthey's term would be "an independent agent." For the above stated reasons, I conclude that the parties had not reached an impasse at the time the Respondent put into effect on December 1, the changes in the wage struc- ture which also affected the conditions of employment of the employees and the integrity of the bargaining unit 28 Accordingly, the Respondent's action in this regard violat- ed Section 8(a)(5) and (1) of the Act. The General Counsel also alleges that the Respondent engaged in surface bargaining with no intention of reach- ing an agreement . I do not agree. The evidence does dis- close that the Respondent was determined to have the wage structure revised so that the changes it desired could be put into effect immediately upon expiration of the con- tract and attempted to seek acceptance from the Union to one of its proposals, albeit unsuccessfully. The fact that Matthey was firm in his insistence that the commission not exceed 15 percent does not form a basis for concluding he had no desire to reach an agreement. I shall accordingly dismiss this allegation. In addition to my finding above that the Respondent's unilateral change violated the Act, I also conclude that Respondent engaged in further violations of Section 8(a)(5) of the Act by threatening the employees with discharge at the expiration of the contract upon their failure to accept Respondent's contemplated changes in the wage structure. The effect of such threats was to coerce the employees to accept Respondent's terms and to induce them to abandon their activity on behalf of the Union, thereby undermining the Union's bargaining position in the forthcoming negoti- ations. With respect to the status of Behrens, Dreyfus, and Walker, the General Counsel contends they were construc- tively discharged. The Respondent on the other hand takes the position that when they refused to accept either of Matthey's proposals, they refused to continue working and thereby engaged in a work stoppage and assumed the sta- tus of strikers. One may liken this to which came first, the chicken or the egg. In considering this issue, a brief review of the facts is appropriate. The employees had no knowledge of the pro- posals put on the bargaining table by either party and were deeply concerned as to what would happen when the con- tract expired. The Union had not discussed a cessation of work and the employees were fully prepared to and intend- ed to report for work on December 3, the next working day following the expiration of the contract. But without any explanation and departing from the customary practice, the truck keys were taken from the unit employees when they returned from their routes on November 30, the last 28 Under plan B the driver-salesmen would no longer be considered em- ployees day of the contract period. They had no intimation this would be taken and had to seek their own way to return to their homes. Considering their apprehension as to their sta- tus at the end of the contract period, the employees were amply justified in assuming they were terminated. When they reported the next morning to meet with Matthey pur- suant to instructions, they were asked to work under one of the two proposed plans of Matthey. None responded he would work under either plan. Matthey did not say they were fired or laid off nor did he inquire whether they would continue to work under the existing conditions. Matthey's conduct at these meetings with the employees, following the appropriation of the truck keys the day be- fore, would logically lead the employees to believe their tenure of employment was concluded. Under these circum- stances, I reject the Respondent's contention they were strikers. Whether they were discharged or laid off is only a question of semantics . The plain fact is they were refused continued employment. The refusal of the Respondent to permit them to continue working was because the condi- tions imposed by the Respondent were not acceptable to the employees . Either of its proposals constituted a sub- stantial change in the wage structure regardless of the ef- fect on the actual take home pay. Moreover under plan B their status as employees may have been lost. Imposing these conditions upon the employees at a time when Re- spondent was obligated to retain the existing working con- ditions, was unlawful. It was no less unlawful than condi- tioning continued employment upon abandonment of the Union. The employees had the protected right to insist that the existing wage provisions be retained at this time inas- much as no impasse had been reached. Accordingly, I find that by requiring the three named employees to accept uni- laterally imposed changes in the wages, together with the prospect of losing their employee status, as a condition of continued employment, the Respondent thereby construc- tively terminated their employment in violation of Section 8(a)(1) and (3) of the Act.?" IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, the Union has been the 29 It would be entirely speculative to assume that absent his termination on December 1, Walker would or would not have fully processed his retire- ment papers Under the circumstances , I shall provide for the usual remedy for an unlawfully discharged employee DUST-TEX SERVICE, INC. exclusive bargaining representative of the Respondent's employees in the following appropriate unit: All driver-salesmen employed by Respondent at its St. Louis, Missouri, facility, excluding office clerical em- ployees, professional employees, guards, supervisors as defined in the Act, and all other employees. 4. By putting into effect on December 1, 1973, the pro- posals previously submitted to the Union without bargain- ing collectively with it concerning these proposals to an impasse, the Respondent has engaged in an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act 5. By negotiating terms or conditions of employment di- rectly with the employees and threatening them with termi- nation in absence of their acceptance of its proposals, the Respondent thereby has engaged in unfair labor practices in violation of Section 8(a)(5) of the Act and has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 8(a)(1) of the Act. 6. By terminating Charles Behrens, David Dreyfus, and Kermit Walker on December 1, 1973, because of their re- fusal to accept unlawfully imposed conditions of employ- ment, the Respondent has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 7. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Except for the foregoing, Respondent has committed no unfair labor practices under the Act THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent violated Section 8(a)(5) and (1) of the Act by taking certain unilateral ac- tion regarding its proposals concerning wages and terms or conditions of employment without first bargaining collec- tively to an impasse about such proposals, and deeming it appropriate that the employees in the bargaining unit be restored to their employment status they enjoyed prior to Respondent's unlawful unilateral action, I shall recom- mend that Respondent be ordered to revoke the unilateral changes in the wages and other terms or conditions of em- ployment. As the Respondent unlawfully terminated Charles Beh- rens, David Dreyfus, and Kermit Walker, failed to rein- state Walker and reemployed Dreyfus and Behrens under its unlawfully imposed unilateral changed terms or condi- tions of employment, I shall recommend that it reinstate Walker and reinstall Behrens and Dreyfus to the positions they held under the terms and conditions in existence prior to its unlawful changes and make them whole for any loss of pay they may have suffered by reason of its unlawful modification of their wages, rates of pay, and terms and conditions of employment. Backpay shall be computed on a quarterly basis, plus interest at 6 percent annum, as pre- 407 scribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, from the date of the unilateral changes to the date of their revocations. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER30 Respondent, Dust-Tex Service, Ind., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive bargaining representative of the employees in the aforesaid appropriate unit, by changing the rates of pay, wages, hours, or other terms or conditions of employ- ment of the employees without bargaining collectively with the aforesaid Union to an impasse about such changes. (b) Threatening employees with discharge or other disci- plinary action in order to cause them to refrain from sup- porting the Union. (c) Dealing individually with its employees with respect to rates of pay, wages, hours, or other terms or conditions of employment in derogation of their exclusive bargaining representative. (d) Discouraging membership in the Union, or any other labor organization by discriminatorily discharging its employees or by discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment. (e) In any like or related manner, interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Reinstall Charles Behrens and David Dreyfus to the positions they held under the terms and conditions prior to the unilateral changes made to the working conditions ex- isting on November 30, 1973, without loss of seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered in the manner set forth in "The Remedy" section of this Decision. (b) Offer to Kermit Walker immediate and full rein- statement to his former job or, if his former job no longer exists, to a substantially equivalent position, without loss of seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered in the manner set forth in "The Remedy" section of this Deci- sion. (c) Revoke the unilateral changes made to the working conditions existing on November 30, 1973. 30 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, 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 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its plant in St. Louis, Missouri , copies of the ized representative , shall be posted by the Respondent im- attached notice marked "Appendix." 31 Copies of the no- mediately upon receipt thereof, and be maintained for 60 tice, on forms provided by the Regional Director for Re - consecutive days thereafter, in conspicuous places, includ- gion 14, after being duly signed by Respondent's author- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or cov- 31 In the event that this Order is enforced by a Judgment of a United ered by any other material. States Court of Appeals , the words in the notice reading "Posted by Order (e) Notify the Regional Director , in writing, within 20 of the National Labor Relations Board" shall read "Posted Pursuant to a days from the date of this Order, what steps the Respon- National of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " dent has taken to comply herewith.