Fullerton Transfer & Storage Ltd, Inc.

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fullerton Transfer & Storage Limited, Inc. and Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 377 Case 8-CA-9227 agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recom- mended Order June 8, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On March 9, 1976, Administrative Law Judge Robert M Schwarzbart issued the attached Decision in this proceeding Thereafter, General Counsel and the Charging Party filed exceptions and supporting briefs and the Respondent filed an answering 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 and to adopt his recommended Order 2 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 and hereby orders that the Respondent, Fullerton Transfer & Storage Limited, Inc, Youngstown, Ohio, its officers, 1 The General Counsel and Charging Party have excepted to certain cred- ibility 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 We find no merit in the Unions contention that we should hold Re- spondent liable for all costs incurred by employees in connection with the strike herein This position is based on the unfounded premise that Respon- dent is bound by the terms of the Union s National Master Freight Agree- ment which provides, inter alia that an employer assumes liability for costs incurred by employees in attempting to force their employer to remedy delinquencies in its contributions to the Union's pension and health and welfare funds The Union argues that since the strike herein was caused at least in part by Respondents failure to make such payments, under the national agreement Respondent is liable for the costs incurred by employ- ees in connection with the strike Obviously this argument is without merit since there was no finding by the Administrative Law Judge that Respon dent was a party to the national agreement, as such a finding was unneces- sary for resolution of the issues herein Further, even if it should be de- termined that Respondent is bound by the terms of the national agreement any rights which employees have thereunder are purely contractual and must be enforced in an action at law rather than a Board proceeding DECISION STATEMENT OF THE CASE ROBERT M SCHWARZBART, Administrative Law Judge This case was heard on October 14 and 15, 1975, in Youngstown, Ohio, pursuant to a charge and amended charges I filed by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Lo- cal 377, herein called the Union, and a complaint, issued on August 4, 1975 The complaint alleges that Fullerton Transfer & Storage Limited, Inc, herein called the Respondent, has engaged in certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act The Respondent filed an answer denying the allegations of unlawful conduct set forth in the complaint Issues 1 Whether the Respondent in violation of Section 8(a)(5) of the Act has refused to bargain collectively with the Union by (a) Unilaterally decreasing the compensation paid to certain of its contract truckmen, (b) Unilaterally ceasing its contribution payments on behalf of its employees to the jointly administered health, welfare, and pension funds, (c) Refusing to continue to meet with the Union's repre- sentatives, upon request, for the purpose of processing em- ployee grievances and for purposes of discussing the unila- teral changes referred to above concerning compensation and its health and welfare and pension contributions 2 Whether the Respondent in violation of Section 8(a)(3) of the Act discharged 11 of its employees for en- gaging in a protected strike protesting the Respondent's unfair labor practices 3 Whether the Respondent, in violation of Section 8(a)(1) of the Act, threatened its employees that it would close its facilities involved herein if the Union "pressed too hard" in handling grievances Other issues presented were whether the Union repre- sented a majority of the Respondent's employees in an ap- propriate unit, whether there was an existing and underly- ing duty on the part of the Respondent to bargain with the Union with respect to the employees in such a unit, wheth- er the strike of the Respondent's employees, which began on or about May 29, 1975, was a protected unfair labor practice strike, and whether the Union, having made an unconditional offer to return to work on behalf of striking employees thereafter, declined to end the strike after its offer was accepted by the Respondent i The original charge was filed on June 10 1975 and the first and second amended charges were filed on June 13 and 18, 1975 respectively 224 NLRB No 80 FULLERTON TRANSFER & STORAGE LIMITED, INC 481 At the hearing, all parties were represented by counsel and were given full opportunity to appear, introduce evi- dence, examine and cross -examine witnesses, and to file briefs Upon the entire record, the briefs filed by the Gen- eral Counsel and the Respondent and upon my observa- tion of the demeanor of the witnesses, I make the follow- ing FINDINGS OF FACT I JURISDICTION The Respondent is an Ohio corporation with its princi- pal office and place of business at Youngstown, Ohio, where it is engaged in providing transportation services Annually, in the course and conduct of its business opera- tions, the Respondent receives gross revenues in excess of $50,000 for the transportation of goods in interstate com- merce Upon the foregoing facts, the Respondent concedes and I find that the Respondent is in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 377, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Background The Respondent is engaged in the local and interstate transportation of household goods under an agency con- tract with North American Van Lines, Fort Wayne, Indi- ana, and stores household goods and general commodities and provides moving services, such as the packing and crating of customer goods The Respondent further is en- gaged in the interstate and intrastate transportation of iron, steel, and general commodities In its operations, the Respondent employs hourly-rated drivers who operated equipment owned by the Respon- dent and contract truckmen or owner-operators 2 who own their own trucks and were paid on a percentage basis Richard E Mills, the Respondent's president, who has been with the Company for approximately 22 years, has been actively in charge of all facets of the Respondent's operations since the departure of the former vice president and general manager on or about September 30, 1974 Mills has been assisted in this work principally by Robert Kollar, operations manager, and James Huston, sales man- ager For some years, midwestern employers in the trucking 2 The record revealed the existence of a semantic difference between the Respondent and the Union as to the nomenclature of contract truckmen or owner-operators The Respondent traditionally has used the former term while the Union, the latter As it is clear that in this proceeding the terms are synonymous, individuals in this category will be referred to herein as con- tract truckmen Their status as independent contractor or employees within the meaning of the Act will be discussed, infra business who bargain collectively with local unions affiliat- ed with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, have subscribed to the National Master Freight Agreement and Central States Area Local Cartage Supplemental Agree- ment, printed in single booklet form and herein jointly called the Master Agreement This document provides for further supplementation by the negotiation of riders of the local union level The current Master Agreement is effec- tive from July 1, 1973, through March 31, 1976 Although the Respondent did not sign the current Mas- ter Agreement, and the evidence is not clear as to whether it had signed any of its predecessor agreements, the Re- spondent did execute a memorandum of agreement on May 12, 1970 This document, retroactively effective to May 1, 1970, for a period of 1 year set forth the compensa- tion to be paid the contract truckmen 3 No more recent agreement with the Union was signed by the Respondent B The Alleged Refusals To Bargain I The appropriate unit The complaint alleges, the answer admits, and I find that the following unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act All hourly-rated paid and percentage-paid truckdrivers4 employed by the Respondent at its Mid- lothian Boulevard, Youngstown, Ohio, facility, includ- ing all contract truckmen/moving division and the The Respondent contends that the 1970 memorandum of agreement had been executed by the Respondent with the drivers as individuals rather than with the Union as the drivers' representative In support of this posi- tion, the Respondent notes that it was separately signed by all of the rele- vant contract drivers and contract packers employed at that time, except for one who was out of town at the time , and that the Union s business agent and steward had merely signed the agreement in their respective capacities as advisors However, the introductory paragraph of the memorandum pro vides as follows The following agreement between Fullerton Transfer and Storage Lim- ited, Inc, and its household goods Contract Truckmen domiciled at the Youngstown terminal is the result of numerous meetings between the Company, Union and the Contract Truckmen The majority of the Contract Truckmen in conjunction with their union representative had agreed with the Company on the various issues as follows In addition, item 7 of the memorandum, in part, provides that This Memorandum is an addendum to the existing contract agreement " Accord- ingly, noting the role of the Union herein negotiating the said memorandum and other existing contract agreements" on behalf of and in conjunction with the Respondent's contract drivers and packers, as set forth in the plain language of the agreement , and from the record as a whole , I find that the 1970 memorandum of agreement was negotiated with the Union in its repre- sentative capacity and not merely with individual employees who were being informally advised by an unrecognized union a As the answer concedes that percentage-paid drivers, which group in- cludes the contract truckmen/moving division were appropriately a part of the overall unit which is not contested in the answer the subsequent efforts by the Respondent at the hearing to show that such contract truckmen should be excluded from the unit as independent contractors were held to be inappropriate It has long been settled that a Respondent must challenge in its answer any allegation in the complaint it wishes to place in issue NLRB v The Blanton Company 121 F 2d 564 (C A 8, 1941) In addition such collateral testimony concerning these contract truckmen as is con- tained in the record would tend to support their placement within the unit They work exclusively for the Respondent and, depending upon the volume of business or the absence of hourly rated drivers, also work in various hourly-paid classifications while contract truckmen sometimes may hire Continued 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispatcher, but excluding all contract truckmen/steel and freight divisions, packers, temporary and seasonal employees, all office clerical employees , professional employees, guards and supervisors , as defined in the Act with the exception of Sinn, were union members in good standing On the basis of the foregoing it is now found that at all times material herein, the Union has had support of a majority of the employees in the appropriate unit 10 Although union dues had been checked off from their earnings, and they had received other indicia of union rep- resentation, including the processing of other grievances, at the hearing, the General Counsel took the position that George H Kimble, Andrew C Labuda, Joseph H Novak, and Henry Rutherford should be excluded from the unit on the ground that they are contract truckmen in the freight division, a classification specifically excluded in the unit description The record revealed that their duties would put them in that category As the appropriateness of the unit as alleged in the complaint, although less than optimum, was not raised as an issue in the pleadings and as the record indicates that the unit found herein has a bar- gaining history of approximately 20 years' duration, I find that the unit as alleged in the complaint is appropriate and that the four men named above should be excluded It is also found, in accordance with the General Counsel's posi- tion that Jack C Tubb, Robert Samsa, Kenneth Davies, and John M Wagner, the latter having been alleged in the complaint as a discriminatee, should be excluded from the unit, as, by virtue of their retirement or resignation, they are no longer employed by the Respondent 2 Majority issue Mills testified that from October 1974 until at least April 1975 the Respondent deducted union dues from the earn- ings of all employees in the unit described above and paid these moneys to the Union 5 The relevant complement of the Respondent's employees during this period consisted of the following Contract truckmen/moving division Edward G Evich, Jr, Dominic Moderalli, Clayton K Oiechoneg, Daniel Piluga and Gary Sinn 6 Hourlyaid drivers Clarence J Booth, James 0 Campbell,? Raymond De Vmney, Rocco Moderalli, Warren Orechoneg (Union steward), William Vincent and Robert Watson 8 In addition, from the undisputed testimony of Patricia L Hodgson 9 and Boano, it is found that all the foregoing their own helpers, occasionally such helpers are assigned and paid by the Respondent 5 Abstracts of union records in evidence reveal that dues were checked off and paid in full from January 1973 through May 1975 6 Sinn, the most recent member of the unit had been with the Respondent for about 2 months in May 1975 There is no evidence that he had paid dues to or otherwise supported the Union 7 Orechoneg testified that Campbell had started as a contract truckman but for approximately the last 2 years he had operated a company-owned truck and was hourly-paid 8 The record revealed that although Watson was referred to by Mills as a member of management, he was employed as the part-time dispatcher As the complaint alleges and the answer admits that the dispatcher is a part of the unit found appropriate herein, I shall include Watson in the unit 9 Hodgson, a secretary employed by the Union, had custody of the Union's dues records which she used to determine the amounts paid over 3 The duty to bargain, unilateral changes in terms and conditions of employment Although, as noted, the Respondent did not execute the Master Agreement, formally adopting for themselves the contract for the industry, it is clear that the Respondent, prior to May 1975, historically had observed the terms and conditions of that agreement, except for the variances that will be discussed below The Master Agreement requires that employers make contributions to the Central States, Southeast and South- west Areas Pension Fund, herein called the Pension Fund, and the Central States, Southeast and Southwest Areas Health and Welfare Fund, herein called the Health and Welfare Fund Employer contributions to each of those plans are based on specified weekly amounts for each em- ployee covered by the agreement who has been employed by the contracting employer for 30 days or more, with stat- ed increases to become effective during the term of the agreement The Master Agreement also contains detailed proce- dures for the processing of employee grievances, estab- lishes a wage scale for hourly-rated drivers," and provides for an assortment of fringe benefits, which include 8 paid holidays per year, including employee birthdays, paid fu- neral leave, and vacations The Master Agreement specifies that a seniority list shall be posted by employers, at least once every 12 months and that employees shall make writ- ten complaints to the Company and union within 30 days after such posting Any such complaint not settled thereaf- ter shall be submitted to the grievance procedure 12 Finally, the Master Agreement contains a union dues checkoff pro- vision whereunder dues could be deducted from the em- ployees' earnings by the Employer and be paid directly to the Union Warren R Orechoneg, the shop steward,13 testified that when he began his employment with the Respondent, the Union was already representing the Respondent's employ- ees in the relevant unit Prior to May 1975, Orechoneg and the other hourly rated employees were being paid in accor- dance with the wage scale for hourly rated employees in his classification as set forth in the Master Agreement In ad- dition, he and the others also received all other fringe bene- and due from various employees including the Respondent She also pre- pared and sent out the monthly dues billing statement Marquis Elevator Company, Inc 217 NLRB 461 (1975) The Master Agreement provided that the minimum rental rates to be paid to employees who lease their equipment to the employers shall be determined by negotiations between the parties in each locality subject to approval by joint state and area committees approval Under the terms of the Master Agreement seniority shall prevail in determining precedence for layoff and recall bumping rights and where applicable for job bidding In addition to the annual seniority list posted annually referred to above the Union was entitled to a seniority list each 6 months upon request 13 Orechoneg an hourly-rated driver was employed by the Respondent for approximately 18 to 20 years and has been the Union steward at the Respondents facility since 1965 FULLERTON TRANSFER & STORAGE LIMITED, INC 483 fits provided in that agreement, including funeral leave, vacations, sick benefits, health and welfare insurance, pen- sion contributions and, also, implementation of the griev- ance procedure , as set forth in the Master Agreement 14 Michael L Boano, the Union's business representative, testified that when he took over from Robert Eliser as the Union's bargaining representative for the Respondent's employees in the latter part of October 1974, the latter had informed him that the Respondent was then delinquent in its payments to the health and welfare and pension funds In early November 1974, Eliser and Boano, and Joseph Blumetti, pension fund field representative , on behalf of the Union, met with Mills and William T Bodoh, who then was the Respondent's attorney, at the Respondent's of- fice 15 Eliser introduced Boano as his successor as union bar- gaining agent for the Respondent's employees and an agreement was reached with regard to the method by which the Respondent would become current in the pay- ment of its contributions to the pension fund 16 By the terms arranged, Mills agreed that the Respondent immedi- ately would pay in full the contributions for two of the past months for which moneys were owed, would pay the total amount for December 1974, when that became due, plus an additional monthly sum of $500 to liquidate the delin- quency At that meeting, as related by Boano, there was also discussion concerning the Respondent's arrearages in health and welfare premiums , wages and grievances, and four copies of the Master Agreement were given to the Respondent's representatives The union representatives, contrary to the Respondent , contended that the Respon- dent had previously signed a Master Agreement at some unspecified time, but that its copy had been lost while the Union was moving to different offices It was one of the Union's requirements that the Respondent should sign the current Master Agreement With respect to wages, the Union expressed its desire to renegotiate the compensation scales set for contract truckmen by the above-noted local supplement executed by the Respondent and Union in 1970 Mills hesitated at signing the Master Agreement which set forth the pay scale for the hourly rated employees and at renegotiating the 1970 supplemental agreement on the ground that the Respondent was in poor financial condi- tion He also, therefore, stated that the Company was un- 14 It is undisputed that during the year that preceded the May 1975 strike Orechoneg, as steward, processed approximately nine grievances with the Respondent 1 The meeting had been arranged pursuant to a mailgram previously sent by Boano on behalf of the Union to the Respondent which read as follows "This will serve as official 72 hour notice under Article 45 Section 2 ' Arti- cle 45 , section 2 , of the Master Agreement provides , in effect, that notwith- standing anything contained in that agreement , in the event that any em- ployer is delinquent in contribution payments to the health and welfare or pension funds, after proper service of a 72-hour notice to the employer of such delinquency, the union may take such action as it deems necessary until such payments are made 16 In the letter, dated November 6, 1974 , to the Respondent from Joseph Blumetti, pension fund field representative , the Respondents alleged pen- sion delinquency as of that time was stated to total $6,813 50 for various specified periods This figure was later adjusted able to meet its current obligations to the health and wel- fare and pension funds Mills also requested an adjustment in the Master Agreement as he could no longer afford to pay the going rate Boano told Mills that he had no control over the rates for the hourly paid employees or the wage and cost-of-living increases that were scheduled for July 1, 1975, as those were provided for in the Master Agreement However, Boano promised to try to cooperate with the Company in other ways and advised Mills that all items on the supplement for the contract truckmen were negotiable Mills, in his testimony , conceded that he had met with pension fund field representative Blumetti in the fall of 1974, who had told him at that time that the Respondent's obligations to that fund must be paid The record contains a series of letters , authenticated by Mills, between him and Blumetti, commencing on November 26, 1974, which re- flected the Respondent's temporary effort to become cur- rent in its obligations to the pension fund According to Mills, during his meeting with Blumetti, the latter dictated to Mills' secretary, for Mills' signature, a letter to the pen- sion fund setting forth the terms of the payment plan as described above, which included an immediate payment of $1,904 to cover 2 months for which payments were past due, which sum included $500, the amount to be paid each month in addition to the current contribution in order to liquidate the balance of the delinquency The letter dis- claimed liability for certain weeks in December 1971, and March 1973, for which claims payment previously had been made by the Respondent to the pension fund Mills signed this letter and conveyed it to the pension fund The approval of the payment plan was confirmed in a letter, dated December 2, 1974, to the Respondent, signed by Blumetti, wherein receipt of the Respondent 's initial payment was acknowledged Mills testified, however, that the agreement thereafter was exceeded by the pension fund when the Respondent received a letter, dated December 5, 1974, from Blumetti, purporting to supplement his corre- spondence of December 2 The December 5 letter advised that, effective February 1, 1975, there would be an 8 per- cent interest fee charged on all the past due balances of all accounts and that any payments received will first be ap- plied to the interest charge with the remainder being ap- plied to the moneys due on the account Mills contended that the 8 percent interest charge had not been a part of the deal he had made to make payments for current months and to liquidate arrearages at the monthly rate of $500 Accordingly, Mills made no further payments to the pen- sion fund and by mid-May 1975, approximately 2 weeks before the strike, according to correspondence to the Union from the pension fund's counsel, the Respondent's obligation to that fund had increased to $7,346 The fund's counsel, in its letter, also asked that the Union take steps to make the Respondent's account current by either serving 72-hour strike notice or by referring the matter to local counsel for legal action Accordingly, a 72-hour notice, identical to the mailgram that had been sent in advance of the November 1974 meeting, was again forwarded to the Respondent Following the meeting between the representatives of the Respondent and Union in November 1974, described above, William T Bodoh, who had attended that meeting 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the Respondent's attorney wrote the following letter, dated November 11, 1974, to the Union's business repre- sentative, Eliser, illustrative of the status of bargaining be- tween the parties at the time Re Fullerton Transfer Contract Dear Mr Eliser This letter will confirm the discussions in our meet- ing of Friday morning regarding the formal contract between Fullerton and Local 377 We discussed your contacting Mr Richard Mills at Fullerton in order to establish a mutually agreeable time when he can meet with you and the members of the bargaining unit to formally execute the contract and to discuss some other matters that must be resolved These include the establishment of a seniority list, the necessity for bid- ding for various jobs in the unit, the discussion of con- tracts for both local and over-the-road operations and health and welfare and other fringe benefit options open to the employer and the members and to discuss the Teamster Health & Welfare coverage in order to eliminate any unnecessary expense that some unit members may be going to in providing overlapping coverage As we discussed in our meeting, the formal signing of the contract is in no way intended by either the union or the company to change our historic bar- gaining relationship This will also acknowledge your formal notification to Fullerton that the recognized shop steward is Mr Warren Orechoneg We appreciate your taking the time to sit down and discuss with us these matters of mutual concern and we hope this meeting will be beneficial to both the Company and its employees in future operations Be- cause of Mr Mills' previous commitments, it appears that the meeting we discussed cannot be held until the week of November 25 at the earliest so that in your planning we wish you would keep that time frame in mind 17 Boano testified that in January 1975 he met with Mills and the Respondent's operations manager, Kollar, and sales manager, Huston, on about five different occasions These meetings, which concerned essentially the same sub- ject matter, related to (1) the Respondent's failure to meet its obligations to the health and welfare and pension funds, (2) the Union's request that a new seniority list be posted in accordance with the provision for the annual list required under the Master Agreement, (3) the Union's protest against the Respondent's practice of deducting money from the employees' pay for claims based on alleged pilfer- ages and shortages without following the hearing proce- 17 Although the November I I letter indicated that carbon copies thereof had been sent by Bodoh to Mills, Boano, and Orechoneg, Mills denied that he had received a copy of the letter, that the position set forth therein had been authorized, or that he even had discussed its content with Bodoh Mills' testimony with respect to this letter was directly contradicted by Bo- doh who was subpenaed later in the proceeding Bodoh, who had not been present during Mills' testimony, testified as to the accuracy of his letter in relation to what had occurred during the underlying meeting with the Union Although under the rules of agency, the Respondent, in any event, would be bound by the representations of its attorney Mills disclaimers thus controverted, are not credited dures set forth in the Master Agreement, and (4) wages As a result of these meetings, the Respondent posted a seniority list, dated January 28, 1975,18 and began to com- ply with the contractual procedure concerning loss claims for alleged shortages Accordingly, pursuant to the Master Agreement, in April 1975 two relevant grievances were processed through the second stage of the grievance procedure-the grievance of William Vincent, a driver, with respect to his seniority, and that of Dominic Moderalli, a contract truckman, who was protesting the Respondent's action in deducting more than $800 from his compensation on the ground of alleged shortages As no resolution of the grievances of Moderalli and Vincent were possible during point discussions at the local level in March 1975,19 the matters were set for hearing at the next level, before the local cartage committee 20 Moderalli's grievance was considered on April 17, at which time the Respondent was represented by its operations manager, Kollar Mills, who had been out of town on April 17, was present as the Respondent's representative on April 23 when the committee reviewed Vincent's grievance The grievants were successful in each case Thereafter, Mills heatedly informed Boano that the committee proceedings had been "rigged," with his competitors sitting in judgment of him During a telephone conversation between Mills and Boano on April 24, the day after the second local cartage committee proceeding, Boano tried to calm Mills Mills, however, accused Boano of having taken advantage of Kollar's inexperience in labor relations at the Moderalli grievance proceeding and called the local cartage commit- tee a "kangaroo court " He stated that he would not com- ply with the committee's decision to reinstate Vincent's se- niority 21 and would lay off everybody up to Vincent's seniority date to get him Boano testified that Mills also told him that the hourly employees would have to take a cut to $5 an hour as he could get college kids to work for $3 to $4 an hour Boano replied that a meeting would be required to discuss any reduction in wages Mills replied that there would be no meeting to discuss wages and if Boano did not like what he was doing, he would shut down the Company 22 18 In accordance with the Master Agreement, Mills, at the time the senior- ity list was posted, asked Union Steward Orechoneg to remind the employ- ees to submit any protests they may have as to their seniority, as listed, in written form within 10 days Thereafter, two grievances relating to seniority were filed 19 Although several unwritten employee complaints were resolved in Jan- uary 1975, by the Respondent and Union Steward Orechoneg, there were no meetings between the Respondent and the Union in February However, in March, there were three meetings During that month , the grievances of Vincent and Moderalli were discussed by representatives of the Respondent and Union with the participation of the respective grievants 20 The Master Agreement, pp 99-100, provides for the establishment of joint local area committees, herein called the local cartage committee, con- sisting of an equal number of members appointed by employers and unions with jurisdiction over disputes and grievances involving local unions or complaints by local unions in their respective areas Such a committee must have at least three members from each group, none of whom, of course, may be interested in the issue presented 2i At that time, Vincent was in layoff status 22 Although the threat to shut down the Company as described above which Mills denies making, was alleged in the complaint as a violation of Sec 8(a)(1) of the Act, I do not find it necessary to make a credibility finding with respect to this incident as no employees were present and the FULLERTON TRANSFER & STORAGE LIMITED, INC During this conversation, Boano asked when the next grievance meeting could be held as other grievances had more recently been filed Mills replied that there could be no more grievance meetings as he was not getting "a fair shake" and as Boano had been leaning too heavily on him In that connection, Mills stated that he would not service the grievance filed by Andy Labuda, a contract truckman, and if Labuda continued to push his grievance Mills would cancel his contract 23 Boano replied that it would be illegal to cancel the lease with Labuda without first meeting with a union business representative From the time of that conversation, the Union has not been successful in meeting with the Respondent to serve and discuss grievances Copies of records of the health and welfare fund, re- ceived in evidence, reveal payments had been made to that fund by the Respondent for the months of July through December 1974, and for January 1975 24 However, the Re- spondent did not continue to make payments to the health and welfare fund after January 1975 On May 2, 1975, Mills posted on the window of the dispatcher's office a notice of that date addressed to all contract truckmen/moving division The notice, on the Respondent's stationery and signed by Mills, stated that in order to meet competition, effective that date, the contract truckmen's compensation will be adjusted to the percent- age of hnehaul figures shown There followed a listing of the various specified moving services performed by con- tract truckmen and the adjusted percentage to be paid to them for each listed operation In almost every instance, the listed procedure was to be compensated at a rate of 50 percent of the linehaul figure, representing a reduction from the 65 percent previously paid to these drivers 25 The last paragraph of the May 2 notice provided as fol- lows Local Moving It is also required, commencing immediately that Health & Welfare Pension will be paid either direct by the contract truckmen to the Union or with proper authorization, the company will deduct these pay- ments and remit to the Union programs Prior to the May 2 notice, in accordance with articles 54 and 55 of the Master Agreement, the Respondent had made its payments to the health and welfare and pension funds on noncontributory bases matter therefore would not be violative of the Act 23 The record is not clear as to the nature of Labuda's grievance Al- though the grievance was being processed by the Union as noted Labuda as a contract truckman in the freight division, is not a member of the unit found herein In any event, the alleged threat to fire Labuda also could not be violative of Sec 8(a)(i) of the Act as it too, was not made in the presence of employees 24 These records run contrary to Boano s testimony that the Respondent had made payments for January and February 1975, but had not paid for December 1974 causing him to ask Mills the reason for the missing contri- bution for that month 25 Although the complaint does not allege disparate treatment of union employees as a violation of Sec 8(a)(1) and (3) of the Act the record re- vealed that the wages of the Respondent's nonunion office employees were increased on or about the time the notice was posted When asked if the amount of such increases equaled $50 per week per employee Mills did not deny the figure but stated that he would have to look it up 485 Mills conceded that the May 2 notice above described had been prepared and posted without prior notice to or negotiation with Boano as the Union's representative However, Mills contended that the proposed reduction in compensation had been discussed about a week before the notice was posted during a meeting between Union Steward Orechoneg, Bob Watson, the dispatcher, and him- self at the End of the Tunnel Lounge, situated in a Youngs- town building where the Respondent maintains business offices Mills related by way of background that he had earlier discussed the proposed changes in the contract truckmen's compensation with the Respondent' s sales manager, Huston, and operations manager, Kollar, and Watson Watson then had proposed that Mills meet with him and Orechoneg at the lounge to discuss a possible ar- rangement whereunder Watson and Orechoneg would take over the contract truckmen part of the operation as mid- dlemen, supervising movements in both local and interstate traffic The compensation for the contract truckmen would be reduced to the percentages later effectuated on May 2 and Watson and Orechoneg would receive a financial over- ride in excess of the 50 percent to be paid the contract truckmen to pay for their administrative efforts in hiring and supervising contract truckmen in the movement of household goods The meeting lasted an hour and one-half Approximately 1 week later, Orechoneg sent word to Mills through Watson that he was not interested in undertaking the arrangement Nothing further was done until the May 2 notice was posted Orechoneg denied Mills' version of the meeting 26 The steward testified that they had met at the request of himself and Watson who had wanted to discuss with Mills the pos- sibility of their becoming contract truckmen That topic had been the principal matter discussed He reiterated his denial that Mills had ever discussed a reduction in the con- tract truckmen's earnings before the posting of the May 2 notice A strike began among the Respondent's contract truck- men and hourly rated drivers on or about May 29, 1975, which continued in effect at the time of the hearing 27 During the course of the strike, the parties met in the last half of July 1975, and proposals were exchanged for a set- tlement agreement On about August 2, the union drivers voted to reject Respondent's proposals and no further meetings were held for that purpose 4 The Respondent's position Mills' basic contention is that, during the time material herein, the Respondent had not signed the Master Agree- ment and had no duty to bargain with the Union, particu- larly with respect to the contract truckmen whom he now considers to be independent contractors rather than em- ployees Contrary to the Union, Mills testified that the Respondent's labor relations policy is directed on a "one- to-one relationship" with its drivers whose employment terms are settled during separate discussions with each driver whose employment terms are settled during separate 26 Watson, the remaining participant, did not testify at the hearing 27 The nature of the strike and the surrounding events will be considered in detail infra 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussions with each driver at the time of hire, a policy that has been in effect during his 22 years with the Respon- dent Accordingly, when employees are hired, Mills testi- fied, he sits down with them and separately negotiates their hourly pay rates,28 and probationary periods, 2 based upon work experience and other personal qualifications Health and welfare and pension benefits are also negotiated with the individual employees and the Respondent's contribu- tions to the health and welfare and pension fund, prior to May 2, were the result of accords reached with various employees themselves as to what their terms and condi- tions of employment would be rather than payments in conformity with the provisions of a binding collective-bar- gaining agreement or of a more generalized duty to bar- gain Again, as to the Respondent's grievance processing prac- tices, Mills testified that during his years with the Compa- ny, the Respondent generally has been successful in resolv- ing employee complaints without intervention In a minority of instances where individuals or groups of em- ployees insisted on bringing Teamster representatives to advise them at grievance meetings with the Respondent's officials, such union representatives were always courte- ously treated by Mills He conceded that such representa- tives, including, at various times, Eliser and Boano, partici- pated fully in such discussions, utilizing union grievance forms With respect to the Respondent's participation in the second stage processing of the grievances of Moderalli and Vincent in April 1975, Mills testified that these matters, too, were being worked out on an individual basis, but that he had sent Kollar to one meeting of the local cartage com- mittee to find out what it was all about and he had attend- ed another such meeting Both Kollar and he had concur- red that the grievance procedure was not for the Company Mills, contrary to the Union, except in connection with the hearing herein, denied that he had ever signed a Master Agreement, examined it or used it at various meetings he had had with the Union's representatives On the matter of the Respondent's participation in the pension and health and welfare funds, Mills testified that in October 1974, when he became more active in the Respondent's operations after the departure of the former vice-president and general manager, he became aware that the Respondent was in arrears on its payments to those funds He concedes his participation in the arrangement made with the pension fund's field representative, Blumet- ti, as described above, where the Respondent paid contri- butions into the pension fund for certain months immedi- ately, pledged to stay current, and to liquidate the arrearages at a rate of $500 a month However, as noted, Mills discontinued payments after the month of January 1975, when the Union, in December 1974, advised him that an 8 percent interest charge would be assessed on the out- standing arrearages Starting in October 1974, Mills also began to investigate 28 Generally, operating personnel advance from hourly rated drivers to contract truckmen, an arrangement that affords incentive 29 The Master Agreement specifies a probationary period of 30 days Mills testified that he would vary this interval at his option as needed the Respondent's arrearages in health and welfare fund contributions, seeking to coordinate benefits of the point health and welfare fund with a private plan underwritten by an outside carrier utilized for other employees in the Respondent's employ Mills contended that he thereafter paid contributions to the Teamster Health and Welfare Fund only to avoid a strike and is not certain where the Respondent stood with respect to that fund at the time of the hearing In any event, the Respondent has taken the position that it would not be appropriate to make health and welfare and pension contributions on behalf of the contract truck- men as they were not employees of the Respondent, but, rather, were independent contractors Mills found support in this view in special bulletin #29, dated October 1975, issued by the health, welfare and pension funds over the signature of the funds' executive director, addressed to af- filiated employers This document stated, in effect, that owner-operators, vendor salesmen and other individuals who are employees are eligible to participate in the health and welfare and pension funds, have contributions made in their behalf and receive benefits from those funds when appropriately eligible However, individuals who are not employees as defined in the Act, but are independent con- tractors, employees, et al, are ineligible to participate in jointly administered tax exempt funds such as those in question regardless of whether they are covered by a col- lective-bargaining agreement Participating employees were urged in the bulletin to determine whether any contri- butions have been made on behalf of ineligible individuals, and, if so, to notify the funds in order to obtain refunds 30 Mills denied having threatened employees with a shut- down of the Respondent's operations "if pressed too hard," stating that he had merely advised them that the Company could not continue to operate with a deficit, and had en- couraged them to work harder to help the Company While identifying the previously posted seniority list, dated January 28, 1975, Mills asserted that the Respondent had not independently prepared the document, as asserted by Boano Contrary to the Union's contentions, seniority had not been utilized by the Respondent as a basis for layoff, recall, or compensation The list in question had been prepared at a meeting with contract truckmen and hourly rated employees in Mills' office on a Saturday in January 1975, at which time Mills merely had reduced to writing what the employees told him concerning their se- niority At that time, Mills had protested the impracticabil- ity and inapplicability of such a list to the Respondent's operation, but as those present seemed to want a seniority list, he was prepared to oblige Finally, the changes in compensation for contract truck- men posted in the notice of May 2 was caused by the Respondent's stated need to be competitive After months of investigation, Mills had determined that his company's 30 Although contract truckmen in the moving division have been found to be employees it is relevant to note that bulletin #29, issued in October 1975 long postdated the delinquencies in the Respondent's accounts with the health and welfare and pension funds and, therefore, could not have been a factor when Mills determined to withhold further payments In adds Lion the Respondent also withheld such payments on behalf of hourly rated employees as well as contract truckmen FULLERTON TRANSFER & STORAGE LIMITED, INC 487 competitors were paying their contract truckmen 50 per- cent of line haulage receipts while the Respondent was paying 65 percent Before implementing the plan, Mills had reviewed the matter with Kollar, Huston, and Watson, as noted, and allegedly had also discussed it with Orecho- neg and Watson at their meeting at the End of the Tunnel Lounge, as described above He conceded that he had not given advance notice to Boano as he felt that the Respon- dent was under no obligation to bargain with respect to the affected contract truckmen 5 Discussions and findings Based upon my observation of the witnesses and the clear weight of the evidence, I find Mills' denial of the existence of a long-standing and continuing collective-bar- gaining relationship between the Respondent and the Union, as detailed above, to be frivolous It is evident that at least until August 1975, the Respon- dent continued to recognize the Union as the representa- tive of its employees, both hourly rated and contract truck- men, and to bargain with the Union's successive business representatives, Eliser and Boano Further, although the parties did not execute any document that would constitute a formal adoption of the current Master Agreement, it might be argued that the parties' course of conduct through May 29, 1975, constituted, in effect, an adoption of that contract In addition to having executed the 1970 agree- ment, which was on its face a contract supplement, until at least April 1975, the Respondent withheld dues from the compensation of its hourly rated and percentage-paid em- ployees and forwarded them to the Union Business rec- ords showed that the Respondent made health and welfare contributions to the relevant Fund on behalf of the per- centage-paid and hourly paid employees as specified in the Master Agreement from July 1974, through January 1975, and that Mills, in November 1974, acknowledged his company's obligations to the pension fund by entering into a written arrangement for the liquidation of the Respondent's arrearages During the relevant period, griev- ances were processed with the Union and the Respondent complied with the Master Agreement by participating in second step grievance proceedings before the local cartage committee twice in April 1975 Prior to May 1975, hourly rated employees were paid at the rate specified in the Mas- ter Agreement and employees received all fringe benefits set forth in the Master Agreement Even after the strike began, the Respondent's representatives met with the Union and negotiated, although unsuccessfully, in an ef- fort to reach a new agreement In Marquis Elevator Company, Inc," where a collective- bargaining agreement was found to have been adopted, the Board approved the following discussion by the Adminis- trative Law Judge The Board has held, in deciding whether an employ- er and a union have agreed upon a contract, that it is not bound by the technical rules of contract law Lo- zano Enterprises v N L R B, 327 F 2d 814 (C A 9, 31 217 NLRB 461 (1975) 1964) In John Wiley & Sons v Livingston, 376 U S 543, 550 (1964), the Supreme Court held that a collec- tive-bargaining agreement is not governed by the same common law concepts which govern private contrac- tors, nor is it an ordinary agreement comparable to one for the purchase of goods and services Cf Operat- ing Engineers v Flair Builders, Inc, 406 US 487 (1972) Here, as in Manor Research, Inc, 165 NLRB 909 (1967), the continued utilization of the welfare, pension and educational funds, the use of the Union for the settlement of grievances, "demonstrate the existence of a continuing relationship between the Re- spondent and the Union" Marquis contributed to the trust funds established by that contract and paid the wage scale established therein In the instant case, unlike the situation in Marquis Ele- vator, supra, Mills did not express an intention to work under the industrywide agreement and, although possible, it is not clear that the Respondent herein had ever formally signed a predecessor Master Agreement However, as the General Counsel herein merely contends that a longstand- ing bargaining relationship exists between the Respondent and the Union, pursuant to which the Respondent is obli- gated to bargain but has not alleged or argued that the Respondent, by its conduct, had adopted and was bound by the Master Agreement, it is not necessary, in finding the existence of a bargaining relationship, to determine wheth- er that contract, in fact, had been adopted Accordingly, on the basis of the foregoing, noting, as found above, that all employees in the bargaining unit herein except Sinn were members of the Union in good standing during all times material herein, I find, as alleged in the complaint, that during the relevant period the Union has been the representative for the purpose of collective bargaining of the employees in the appropriate unit herein- above described and is now the exclusive representative of all employees in said unit for such purpose 32 I further find that the Respondent's actions in reducing rates of pay, terminating the grievance procedure and dis- continuing payments to the health and welfare and pension funds respectively, all constituted illegal unilateral changes in the terms and conditions of employment of the affected employees and constituted refusals to bargain in violation of Section 8(a)(5) and (1) of the Act 33 As the Respondent's threats to close the plant for unlaw- ful reasons, alleged in the complaint, were made to union officials and had not occurred in the presence of employ- ees, no independent violation of Section 8(a)(1) of the Act is found in connection therewith 32 Johnson Electric Company Inc 196 NLRB 637 642 enfd 472 F 2d 161 (C A 6 1973) 33 N L R B v Benne Katz d/b/a Williamsburg Steel Products Co 369 U S 736 (1972), Marquis Elevator Company, Inc, supra Johnson Electric Company Inc supra Viewlex Inc, 204 NLRB 1080 1082 (1973) Mills alleged references to the proposed pay reduction during his meeting with Orechoneg at the End of the Tunnel Lounge does not affect the unilateral nature of the action thereafter taken Even if Mills' version of the meeting was to be credited and Orechoneg, arguendo was a union official with whom such a matter could be negotiated, Mills merely gave notice of his intent to reduce wages, rather than to bargain on the matter Huttig Sash and Door Company Inc, 154 NLRB 811, enfd 377 F 2d 964 (C A 8 1967) 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C The Unfair Labor Practice Strike On about May 29, 1975, certain of the Respondent's contract truckmen/moving division and hourly rated driv- ers went on a strike which was still current at the time of the hearing The complaint alleges that the strike was pro- tected and the General Counsel contends that it had been caused and prolonged by the Respondent's unfair labor practices Boano and Orechoneg testified credibly that Orechoneg, on Boano's instructions, had polled the members of the unit By the end of the first week in April 1975, Orechoneg reported to Boano that the unit employees had informed him of their desire to engage in a strike against the Respon- dent The issues that formed the basis for the strike, ac- cording to Boano and Orechoneg, were the Respondent's continuing delinquency in its payments to the health and welfare 34 and pension fund and the Respondent's proposal to reduce the wages of contract truckmen from 65 to 50 percent This proposal was made by the Respondent dur- ing a meeting in March or early April at which time it was rejected by Boano Boano credibly testified that on about May 5, immedi- ately upon receiving in the mail the Union's copy of the notice that the Respondent had posted on May 2, an- nouncing that the contract truckmen's pay percentages would be reduced and that the Respondent would no lon- ger make payments to the health and welfare and pension funds on behalf of the employees, he telephoned Mills to protest the Company's actions In response to his admoni- tion that the Respondent could not undertake the pay re- ductions without first consulting the Union, Mills stated Boano did not own the Company and that he would do as he saw fit Boano requested a meeting to discuss the mat- ter Mills replied that there was nothing to discuss That was the way it was going to be On about May 29, as the strike began, Boano repeated to Orechoneg the above reasons for the strike and informed him that it had been sanctioned by the Union at the Inter- national, regional, and local levels In accordance with the foregoing, I find that the strike was caused by Respondent's failure and refusal to meet its obligations to the health and welfare and pension funds 35 and by its ac- tion in unilaterally reducing the percentage amounts to be paid contract truckmen I also find that a contributing cause of the strike was the Respondent's refusal to process grievances after April 24,36 and that the strike thereafter was prolonged by the discharges of striking employees, dis- cussed below D The Discriminatory Discharge of the Striking Employees and the Reinstatement Offer 1 The discharges The complaint alleges and the record reveals that shortly after the start of the strike, the Respondent terminated the employment and/or the truck lease agreements of employ- ees Clarence Booth, Warren Orechoneg, Rocco Moderalli, Howard Price, William Vincent, Robert Watson, John Wagner," James Campbell, Raymond De Vinney, Clayton Orechoneg, Daniel Piluga, and Dominic Moderalli 38 The Respondent's letter, substantially similar copies of which were sent to the hourly rated employees, read as follows It is mandatory that you be available for work and handle deliveries under the (name of relevant custom- er) Contract with Fullerton Transfer tomorrow morn- ing at 8 a in The failure to report for work at Full- erton tomorrow, will necessitate your discharge and the hiring of a replacement driver, since this (Customer's name) Contract is vital to the economic future of the company The Respondent began to send copies of the letters above-quoted to its employees on June 2, 1975, and like letters were sent to Watson, Vincent, Price, and Rocco Moderalli on June 3, and to Campbell and De Vinney on June 5 At the same time, contract truckmen, including Daniel Piluga and Clayton Orechoneg, received notices from the Respondent that their lease agreements were ter- minated, effective May 30 and June 2, respectively Con- tract truckman Dominic Moderalli received a letter, dated June 3, from Sales Manager Huston, which stated that Moderalli's refusal to make a specific delivery might result in damages for which the Respondent would hold him per- sonally liable Thereafter, the strike continued Mills testified that no replacements had been hired for the striking employees in spite of his efforts On July 14, 1975, at a meeting at the National Labor Relations Board's Regional Office in Cleveland, Ohio, at- tended, inter aba, by Mills, the Respondent's attorney, Richard P McLaughlin, Boano, Orechoneg and the Union's counsel, Anthony P Sgambati II, Sgambati in- formed the Respondent's representatives that the employ- ees were willing to go back to work unconditionally Mc- Laughlin replied that the offer would be taken under advisement 2 The reinstatement offer 34 Employees had complained to union officials at the time that their outstanding hospitalization and health insurance claims had not been paid as the premiums had not been covered 35 In the first week of May 1975, prior to the start of the strike, the Union's negotiating committee met in a restaurant to consider the Respondent's conduct with respect to health, welfare, and retirement bene- fits and the percentage cut in the contract truckmen's compensation About a week later, Boano and Orechoneg again met at the union hall and dis- cussed the same issues That was the last conference before the strike 36 Boano and Orechoneg both described their unsuccessful efforts to dis- cuss grievances with Mills On the following morning at or about 8 o'clock, Mills approached a group of pickets, including Union Steward Orechoneg, Piluga, Rocco Moderalli, and Vincent while 37 Although Wagner was alleged in the complaint as a discriminatee Ore- choneg testified that Wagner had resigned from the Respondent's employ about 2 months before the start of the strike Accordingly, no further con- sideration will be given to his status 38 The complaint was amended at the hearing without objection to per- mit the addition of Dominic Moderalli, inadvertently omitted, as an alleged discriminatory dischargee FULLERTON TRANSFER & STORAGE LIMITED, INC they were standing in front of the Respondent's facility Mills told Orechoneg in the presence of the others, that he (Orechoneg) had offered to go back to work and there was work Before Orechoneg could reply, Boano walked up and he referred Mills to him Orechoneg then saw Boano and Mills walk up the street together, but did not hear their conversation Orechoneg, thereafter, did not discuss the matter with Boano, assuming only that Boano had dealt with the Mills' offer As noted, the employees did not go back to work To show that Mills' offer of work was insincerely grounded and incompetent on the ground that Mills alleg- edly had been intoxicated at the time, the General Counsel called Daniel Piluga, a contract truckman, as a witness and recalled Orechoneg and Boano 39 Piluga testified that on the morning of July 15, at the picket line, he overheard Mills ask Orechoneg what time he had gotten in during the night before, telling Orechoneg that he (Mills) had just gotten in not too long before, at or about 5 30 a in and that "they had tied one on " He then heard Mills ask, "Are you ready to go back to work9 I have plenty of work" At that moment, Boano ap- proached and Orechoneg told Mills that he would have to talk to Boano When Boano arrived, Mills put his arm around him and the two men walked away together Piluga testified that he had been a Youngstown police officer who, in that capacity, had arrested individuals for being intoxicated He gave a detailed description of Mills' appearance on the morning of July 15 to support his expe- rienced conclusion that Mills had been under the influence of alcohol at the time Orechoneg, recalled as a witness, also described Mills' appearance in a like fashion 40 Boano, too, testified that Mills displayed the symptoms of intoxication on the morning of July 15 as they walked together away from the pickets, for which he had remon- strated with him Mills testified that although he may have been out late the night before, there was no basis for the characteriza- tions made as to his appearance on July 15 He had driven himself to work in good condition, freshly showered, shaved and neatly dressed and, in fact, had conducted an active day's business on that date Mills recalled that he had spoken to Warren Orechoneg and several other employees on the picket line at or about 8 a in on the date in question Mills told Orechoneg that he had been at the meeting on the day before and had heard Mr Sgambati say the men would go back to work unconditionally He indicated the trucks in the yard, stated that the Company has work and asked if he would please get back to work At that moment, before Orechoneg could answer, Boano walked up Mills told Boano that he was offering work to the employees on the unconditional return offer made by Sgambati in his presence on the day before and asked if the men will now come back to work Mills testified that Boano had replied that the men will return to 39 Boano, in his initial testimony, had not mentioned that the Respondent had accepted the Union's unconditional offer to return to work and Orecho- neg although he described the offer had not referred to Mills condition at the time 40 On cross-examination, Orechoneg testified that he had not described Mills' appearance in his initial testimony because he had not been asked 489 work if he signed the contract, paid the pension, health and welfare and settled the grievances At that point, Boano's demands trailed off As noted, thereafter, in late July, the Respondent and Union met to negotiate the terms of a strike agreement and written proposals were submitted to the Union About Au- gust 2, the employees voted to reject the proposed agree- ment and the strike, as noted, was still in progress at the time of the hearing I do not find it necessary to resolve the foregoing con- flict as to Mills' capacity to conduct his business affairs when on the morning of July 15, according to the undisput- ed testimony, he verbally informed Boano and Orechoneg, the Union's principal representatives, that he was accept- ing the Union's unconditional offer to return to work, made the preceding day on behalf of the striking employ- ees Even if the Union did question the sincerity of Mills' offer, had it remained firm in its purpose, the Union could only have gained by accepting the offer and thereby ending any question in connection herewith Rather, I credit Mills' testimony that when he informed Boano of his readiness to accept the Union's unconditional offer to return to work Boano then superimposed precondi- tions to the employees' return which, in fact, revoked the earlier offer In so concluding, it is noted that the testimo- ny concerning Mills' allegedly intoxicated condition, as noted, was not presented spontaneously in the General Counsel's case in chief, but only after Orechoneg, without characterizing Mills' condition, had testified that the em- ployees were still on strike although Mills had accepted the Union's unconditional offer to return to work Boano, in his initial testimony, had described the events leading up to the strike, but had not mentioned the offer of reinstatement at all Even more basic, however, is the implausibility of the Union's position that discharged employees who at- ready had been on strike for 1-1/2 months and were main- taining an unconditional offer to return to work, would refuse such employment when offered under the circum- stances alleged herein 3 Discussions and findings As the strike that began on or about May 29 was previ- ously found to be an unfair labor practice strike, the Re- spondent violated Section 8(a)(1) and (3) of the Act when, during the first week of June 1975, it discharged the 11 unfair labor practice strikers named in the complaint, as amended The strike having been caused and prolonged by the Respondent's unfair labor practices, as noted by the Supreme Court in Mastro Plastics,41 "the striking employ- ees do not lose their status and are entitled to backpay even if replacements for them have been made " The Re- spondent also was obligated to offer full and immediate reinstatement to the strikers, without prejudice to their se- niority and other rights and privileges, upon their having applied unconditionally to return to work 42 As found 41 Mastro Plastics Corp v N L R B, 350 U S 270 (1956), Courtesy Volks wagen Inc, 200 NLRB 84, 95 (1972), ITT Henze Valve Service, 166 NLRB 592 (1967), 170 NLRB 1320 (1968), enfd 435 F 2d 1308 (C A 5, 1971) 42 Mastro Plastics Corp, supra, N L R B v E T Dell, t/a Waycross Ma- chine Shop 283 F 2d 733 741 (CA 5, 1960) 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above, when the Union's July 14 unconditional offer to return to work was not accepted by the Respondent and the Union was merely told on that occasion that its offer would be taken "under advisement," this response did not fulfill the Respondent's obligations at the time under Sec- tion 8(a)(3) of the Act and constituted a refusal to rein- state Having found that the Union had made valid uncon- ditional application for reinstatement on behalf of all the discrimmatees on July 14, at which time the Respondent refused to reinstate them, I find that the Respondent's re- fusal on that date constituted additional violation of Sec- tion 8(a)(3) and (1) of the Act 43 However, when on July 15, the Respondent, through Mills, informed the Union's representatives, Boano and Orechoneg, that he was accepting the unconditional offer to return to work and validly offered immediate reinstate- ment,44 the backpay liability for the discrimmatees was tolled 45 Inasmuch as the 11 employees have remained on strike since the offer was made, they still maintain their status as unfair labor practice strikers and are entitled to reinstate- ment upon application 46 Therefore, for the reasons stated, I find that it has been established by a preponderance of the evidence that as specified herein, the Respondent has violated Section 8(a)(1), (3), and (5) of the Act However, for the reasons set forth above, no independent violation of Section (a)(1) of the Act has been found in connection with the Respondent's alleged threat to close the plant 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 relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof CONCLUSIONS OF LAW truckmen/moving division and the dispatcher, but exclud- ing all contract truckmen/steel and freight division, pack- ers, temporary and seasonal employees, all office clerical employees, professional employees, guards and supervisors as defined in the National Labor Relations Act, as amend- ed, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 Prior to and since October 1974, and at all times ma- terial herein, the Respondent has recognized and bar- gained with the Union as the exclusive collective-bargain- ing representative of the employees in the appropriate unit described above 5 Prior to and since October 1974, and at all times ma- terial herein, the Union has been the exclusive bargaining representative of all employees in the appropriate unit de- scribed above for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 6 By unilaterally and without prior notice or good faith negotiation with the Union, changing the compensation rates to be paid employees in the above-described appro- priate unit, discontinuing health and welfare and pension contribution payments on behalf of unit employees and by discontinuing the processing of grievances under the estab- lished grievance procedure, and by all of the foregoing conduct, the Respondent has engaged in unfair labor prac- tices in violation of Section 8(a)(5) and (1) of the Act 7 By discharging unfair labor practice strikers Clarence Booth, Warren Orechoneg, Rocco Moderalli, Howard Price, William Vincent, Robert Watson, James Campbell, Raymond De Vinney, Clayton Orechoneg, Daniel Piluga, and Dominic Moderalli and by thereafter refusing to rein- state such strikers from on or about July 14, 1975, when proper application for their reinstatement was made, until July 15, 1975, when the application was accepted, the Re- spondent has discriminated in regard to the hire, tenure, and other terms and conditions of employment of its em- ployees, thereby discouraging membership in the Union, in violation of Section 8(a)(3) and (1) of the Act 8 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 9 The strike which began on or about May 29, 1975, having been caused and prolonged by the Respondent's unfair labor practices, is an unfair labor practice strike 1 The Respondent, Fullerton Transfer & Storage Limit- ed, Inc, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Lo- cal 377, is a labor organization within the meaning of Sec- tion 2(5) of the Act 3 All hourly-rated paid and percentage-paid truckdriv- ers employed by the Respondent at its facility at Midlothi- an Boulevard, Youngstown, Ohio, including all contract 43 Courtesy Volkswagen Inc supra 44 Trinity Valley Iron and Steel Company, a Division of C C Griffin Manu facturing Company Inc 158 NLRB 890, 893-894 (1966) 45 Courtesy Volkswagen Inc, supra, Southwestern Pipe Inc 179 NLRB 364, modified 444 F 2d 340 (C A 5, 1971) 46 Courtesy Volkswagen Inc supra, National Business Forms 189 NLRB 964 (1971) THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act The Respondent will be required, upon request, to recog- nize and bargain collectively in good faith with the Union as the exclusive representative of the employees in the aforementioned unit, to revoke its unilateral changes with respect to pay rates, cessation of health and welfare and pension fund contributions and termination of the estab- lished grievance, and to make whole its employees for any loss of earnings or other benefits they may have suffered as a result of the Respondent's unlawful refusal to bargain As the strike herein has been found to be an unfair labor FULLERTON TRANSFER & STORAGE LIMITED, INC practice strike and as the Respondent, on July 14, 1975, discriminatorily refused to immediately reinstate strikers Clarence Booth, Warren Orechoneg, Rocco Moderalli, Howard Price, William Vincent, Robert Watson, James Campbell, Raymond De Vinney, Clayton Orechoneg, Daniel Piluga, and Dominic Moderalli, all of whom earlier had been unlawfully discharged, it is recommended that the Respondent be required to make them whole for any loss of earnings and other benefits they may have suffered as a result of the Respondent's refusal to reinstate them from July 14 to July 15, 1975, when the Respondent of- fered reinstatement As to the above-named employees who declined the Respondent's July 15 offer of reinstate- ment but who have remained on strike and occupy the status of unfair labor practice strikers, the Respondent shall be ordered to offer them, upon application, immedi- ate and full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any replace- ments The Respondent also will make them whole for any loss of pay they may have suffered by reason of Respondent's refusal, if any, to reinstate them upon their applications Backpay shall be computed in accordance with the formula prescribed by the Board in F W Wool- worth Company, 90 NLRB 289 (1950), together with 6 per- cent interest per annum, to be computed in accordance with Isis Plumbing & Heating Co, 138 NLRB 716 (1962) Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER 47 Fullerton Transfer & Storage Limited, Inc, Youngs- town, Ohio, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Failing or refusing, upon request, to bargain collec- tively with the aforesaid labor organization as the exclusive collective-bargaining representative of our employees in the unit represented by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 377 The appropriate unit is All hourly-paid and percentage-paid truckdrivers employed by the Respondent at its facility on Midlo- thian Boulevard, Youngstown, Ohio, including all contract truckmen/moving division and the dispatch- er, but excluding all contract truckmen/steel and freight divisions, packers, temporary and seasonal em- ployees, all clerical employees, professional employ- ees, guards and supervisors, as defined in the Act (b) Unilaterally, without prior notice to or negotiation with the Union, changing pay rates affecting employees in the bargaining unit 47 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 491 (c) Unilaterally, without prior notice to or negotiation with the Union, discontinuing its payments to the pension, health and welfare funds on behalf of our employees in the bargaining unit (d) Unilaterally, without prior notice to or negotiation with the Union, failing and refusing to continue to process grievances filed by employees in the unit in accordance with the established grievance procedure (e) In any like or related manner, interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor or- ganizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities 2 Take the following affirmative action, which is deemed necessary to effectuate the purposes of the Act (a) Recognize and, upon request, bargain collectively with the Union as the exclusive representative of all em- ployees in the appropriate unit described above with re- gard to rates of pay, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment (b) Revoke and cease to give effect to the changes in the terms and conditions of employment it unilaterally institut- ed, as set forth above, except in such particulars as the Union may request that a specific change not be revoked (c) Make whole the employees in the appropriate unit who were adversely affected by Respondent's failure to pay for their health and welfare contributions, as provided in the past, by granting them all interest, emoluments, rights, and privileges in such plan which would have ac- crued to them but for Respondent's unlawful conduct found herein, and further, henceforth make such health and welfare payments until such time as Respondent nego- tiates in good faith with the Union either to an agreement or to an impasse 48 (d) Make whole all its employees for any loss of earn- ings and other benefits that they may have suffered as a result of the Respondent's unlawful refusal to bargain (e) Make whole its striking employees, Clarence Booth, Warren Orechoneg, Rocco Moderalli, Howard Price, Wil- liam Vincent, Robert Watson, James Campbell, Raymond De Vinney, Clayton Orechoneg, Daniel Piluga, and Dom- inic Moderalli, for any loss of earnings and other benefits they may have suffered as a result of its failure and refusal to reinstate them from July 14, 1975, when unconditional reinstatement was requested, until July 15, 1975, when re- instatement was offered, and, upon application, grant the above-named employees full and unconditional reinstate- ment to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any replacements hired (f) Preserve and, upon request, make available to au- thorized agents of the Board, for examination and copying, 48 See Impressions, Inc 221 NLRB 389 (1975) 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay and health and welfare and pension payments due under the terms of this Order (g) Post at its various facilities in Youngstown, Ohio, copies of the attached notice marked "Appendix " 49 Cop- ies of said notice on forms provided by the Regional Direc- tor for Region 8, after being duly signed by the Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material (h) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found herein av In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides were represented by their attorneys and presented evidence, it has been found that we have violated the National Labor Relations Act in certain respects To correct and remedy these violations, we have been directed to take certain actions and to post this notice WE WILL NOT refuse to bargain collectively with In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 377, as the exclusive collective-bargaining representative of our employees in the appropriate bargaining unit de- scribed herein, which they represent The appropriate unit is All hourly-paid and percentage-paid truck drivers employed by the Respondent at its facility on Mid- lothian Boulevard, Youngstown, Ohio, including all contract truckmen/moving division and the dis- patcher, but excluding all contract truckmen/steel and freight divisions, packers, temporary and sea- sonal employees, all office clerical employees, pro- fessional employees, guards and supervisors, as de- fined in the Act WE WILL NOT unilaterally and without prior notice to or negotiation with the above-named Union, change pay rates affecting employees in the said bargaining unit WE WILL NOT unilaterally and without prior notice to and negotiation with the above-named Union, discon- tinue our payments to pension, health and welfare funds on behalf of our employees in the bargaining unit WE WILL NOT unilaterally and without prior notice to or negotiation with the Union, refuse to continue to process grievances filed by employees in the bargain- ing unit in accordance with the established grievances procedure WE WILL recognize and, upon request, bargain col- lectively with the above-named Union as the exclusive representative of all employees in the appropriate unit described above with regard to rates of pay, hours of employment and other terms and conditions of em- ployment and, if an understanding is reached, embody such understanding in a signed agreement WE WILL revoke and cease to give effect to the changes in the terms and conditions of employment we unilaterally instituted, as set forth above, except in such particulars as the Union may request that a spe- cific change not be revoked WE WILL make whole the employees in the appropri- ate unit who were adversely affected by our failure to pay for their health and welfare contributions, as pro- vided in the past, by granting them all interest, emolu- ments, rights, and privileges in such plan which would have accrued to them but for our unlawful conduct and, further, WE WILL henceforth make such health and welfare payments until such time as we negotiate in good faith with the Union either to an agreement or to an impasse WE WILL make whole Clarence Booth, Warren Ore- choneg, Rocco Moderalli, Howard Price, William Vin- cent, Robert Watson, James Campbell, Raymond De Vinney, Clayton Orechoneg, Daniel Piluga, and Dom- inic Moderalli with interest, for any loss of pay they may have suffered as a result of our temporary refusal to reinstate them on July 14, 1975, until reinstatement was offered on July 15, 1975 WE WILL, upon application, grant the above-named employees full and unconditional reinstatement to their former positions, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, with- out regard to any replacements who may have been hired WE WILL NOT discourage membership in the above- named Union, or any other labor organization by dis- charging any of our employees or by discharging or refusing to reinstate any of our employees who join a lawful strike and who are entitled to reinstatement af- ter they have made proper application, or by otherwise discriminating against any employees in regard to hire, tenure of employment, or any term or condition of their employment FULLERTON TRANSFER & STORAGE LIMITED, INC 493 WE WILL NOT in any other manner interfere with, concerted activities for the purpose of collective-bar- restrain, or coerce our employees in the exercise of gaining or other mutual aid or protection, or to refrain their right to self-organization, to form, join, or assist from any or all such activities any labor organization, to bargain collectively through representatives of their own choosing, to engage in FULLERTON TRANSFER & STORAGE LIMITED, INC