Channel Master Corp.

National Labor Relations Board - Board Decisions

Jan 5, 1967

162 N.L.R.B. 632 (N.L.R.B. 1967)

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges
that Respondent refused to bargain by refusing to sign a contract on April 22 and
26, 1966.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain with Teamsters, Chauffeurs, Helpers and
Taxi Cab Drivers Local Union No. 327, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
the collective-bargaining representative of the employees in the appropriate
unit as found in the Trial Examiner's Decision.
WE WILL NOT in any like or similar manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to form,
join, or assist said Local Union No. 327, or any other labor organization, to
bargain collectively through representatives of their own choosing or to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive bargaining representative of all employees in the
following unit with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is:
All production and maintenance employees at our Smyrna, Tennessee, plant
including the truckdriver, but excluding all office clerical employees, profes-
sional employees, guards, and supervisors as defined in the Act.
All our employees are free to become, remain, or refrain from becoming or
remaining members of said Local Union No. 327, or any other labor organization.
GREER STOP NUT COMPANY, A DIVISION OF
KAYNAR MANUFACTURING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Iiepresentative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice, or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele-
phone 534-3161.
Channel Master Corporation and Local Union No. 445, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Cases 3-C A-PU40 and N0 4.2. Janu-
ary 5, 1967
DECISION AND ORDER
On July 14, 1966, Trial Examiner John H. Eadie issued his Deci-
sion in the above-entitled proceeding, f riding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondent had not
162 NLRB No. 59.
CHANNEL MASTER CORP. 633
engaged in certain other unfair labor practices and recommended
that such allegations of the complaint be dismissed. Thereafter, the
General Counsel and Respondent filed exceptions to the Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor. Relations Board has
dele-ated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial. Examiner made
at, the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner John H. Eadie in Ellenville,
New York, on various dates starting on February 28 and ending on March 18,
1966, on the complaint of the General Counsel and the answer of Channel Master
Corporation, herein called the Respondent.' The issues litigated were whether the
Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations
Act, as amended. At the conclusion of the General Counsel's case and at the con-
clusion of the whole case the Respondent moved to dismiss the complaint. Ruling
was reserved. The motion to dismiss is disposed of as hereinafter indicated.
After the conclusion of the hearing the General Counsel and the Respondent
filed briefs with me. Both parties also filed motions to correct the transcript of
testimony. The Respondent opposed the General Counsel's motion in part. The
motion of the General Counsel, insofar as it is not opposed by the Respondent, and
the motion of the Respondent are granted. The General Counsel's motion, the
Respondent's motion, and its answer to the General Counsel's motion are received
in evidence as Trial Examiner's Exhibits 1, 2, and 3, respectively.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation with an office and place of business
in Ellenville, New York, where it is engaged in the manufacture, sale, and dis-
tribution of television antennas, accessories, aluminum tubing, and related products.
During the period of 12 months preceding the issuance of the complaint, the
Respondent purchased and had delivered to its Ellenville plant goods and materials
valued in excess of $50,000, of which goods and materials valued in excess of
$50,000 were transported to said plant directly from States of the United States
other than the State of New York. During the same period, the Respondent manu-
factured, sold, and distributed products valued in excess of $50,000, of which prod-
ucts valued in excess of $50,000 were shipped from its Ellenville plant directly to
States of the United States other than the State of New York.
1 Local Union No. 445, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the Union, filed the charge in Case .R-CA-2440 on
September 4, 1964, and the charge in Case 3-CA-2742 on August 31, 1965. The complaint
issued on November 16, 1965. The General Counsel issued an amended complaint on
January 24, 1966.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges, the Respondent's answer admits, and I find that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and I find, that the Union is a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
On September 30, 1963, the Regional Director for Region 3 certified the Union
as the exclusive representative of the Respondent's over-the-road truckdrivers
excluding local drivers and all other employees. The over-the-road drivers consisted
of drivers in the Respondent's "light fleet," "heavy fleet," and "refrigerated fleet."
In October and November of 1963, two unfair labor practice charges were filed
against the Respondent. The November charge was filed by the Union. A hearing
on the consolidated cases was held before a Trial Examiner in Ellenville on May 5
and 6, 1964. In its Decision rendered on September 25, 1964,2 the Board found
that the Respondent had violated Section 8(a)(1) and (3) of the Act The Board
found that a provision in the Respondent's profit-sharing retirement plan was dis-
criminatory in that it provided "nonrepresentation by a union as a requirement for
participation," and that the Respondent considered the "heavy-duty" drivers to be
"the union instigators." The Board ordered that the discriminatory provision in the
retirement plan be eliminated.
As stated above, the charge in Case 3-CA-2440 was filed on September 4, 1964.
This charge alleged violation of Section 8(a)(1) and (5) of the Act. On March 17,
1965, the Regional Director approved a Settlement Agreement of that case; and on
August 23, 1965, the Acting Regional Director notified the Respondent that the
case was closed subject to continued observance of the terms of the Settlement Agree-
ment. On November 16, 1965, the Regional Director, having found that the
Respondent had not complied with its terms, withdrew the Settlement Agreement.
B. The negotiations
The Union received its certification on September 30, 1963. On October 15, it
wrote to the Respondent asking for a meeting date in order to commence negotia-
tions for a contract. The Respondent did not reply. On October 23 the Union
again wrote to the Respondent, suggesting a time and place for a meeting or any
alternative date convenient to the Respondent. The Respondent replied by letter,
dated October 24, 1963, in which it stated only that it had moved the Board to
reconsider its denial of the Respondent's request for review in the representation
matter. The denial of the Respondent's motion to reconsider having issued on Octo-
ber 30, 1963, Raymond Ebert, business representative of the Union, called Louis
Berger, general counsel and member of the board of directors of the Respondent, on
or about November 4. As a result of this call, a tentative meeting date was set for
November 14, subject to the availability of Harry Resnick, president of the
Respondent. Berger wrote to Ebert on November 7, stating that Resnick was not
available for November 14 and suggesting November 21 as a meeting date. The
parties met as scheduled on November 21, 1963. Thereafter, they met on approxi-
mately 22 occasions. Ebert was the principal negotiator for the Union. Henry Maier,
an employee and shop steward for the Union, attended some of the meetings. Ber-
ger was the principal negotiator for the Respondent until August 11, 1964. On and
after that date Francis Conrad, attorney for, the Respondent, attended the meet-
ings along with Berger.
At the meeting held on November 21 Berger, Resnick, and Harold Stengel,
Respondent's personnel director, were present. After Ebert presented the Union's
proposed contract, he asked Berger to discuss it with him. Berger refused, saying
that it would save time at subsequent meetings if he first read through the pro-
posed contract and noted any questions that he might have. It was agreed that the
parties would meet again on January 15, 1964. Before leaving the meeting, Berger
told Ebert, "You know, Roy, we've got a lot at stake here . .. . You represent a
very small minority of the employees in that plant . . . . If it was a question just
2 Channel Master Corporation, 148 NLRB 1343
CHANNEL MASTER CORP. 635
for union drivers, I don't think we would have so much trouble, but there is
another thousand people in the plant.3 We have to consider them. They are all
looking to see what happens here. This is a very important step which the Com-
pany is taking. Mr. Resnick is very concerned about this."
The parties met as scheduled on January 15, 1964. At the opening of the meet-
ing, Berger stated that the Respondent would not agree to any article or any pro-
vision of the Union's proposed contract until there was total agreement on the
whole contract. In this connection he said that he might suggest adding, deleting,
or changing language with respect to some of the Union's proposals, but that this
did not mean that he was agreeing to any specific proposal. Although Ebert pro-
tested that this would make bargaining "extremely difficult" and suggested that the
parties mark a clause "okay" and set it aside as agreement was reached, Berger
refused. Berger then requested that they start to read together the Union's proposed
contract Ebert stated, "I suggested that a month and a half ago. You suggested
you would have questions for us. Now, do you have any questions?" Berger replied,
"The questions will come up as we read it." They then started to read the Union's
proposed contract. Berger suggested some changes and Ebert agreed to them.
Meetings were held on January 29 and February 5. At these meetings the
Respondent suggested a number of deletions and additions to the Union's proposed
contract. The union agreed to some of them. At the meeting held on February 5,
Ebert asked that the Respondent agree to those clauses which had been changed in
accordance with its suggestions. He told Berger that they were "absolutely getting
nowhere" unless they could "okay something, put it aside, move on to something
else " Berger refused to agree to this. He stated that the reading of the Union's pro-
posed contract was "good" because he was getting Ebert's "thinking on articles and
sections of the contract" and Ebert was getting his. Berger said that after they had
finished reading through the Union's proposed contract together, he would submit
the Respondent's counterproposal. They discussed the date of their next meeting.
Berger did not want to meet until after the hearing in the pending unfair labor
practice case was concluded, but finally agreed to meet at 1 p.m. on February 26 4
However, he stated that he would not agree to meet again after that date until the
hearing was over.
The hearing, scheduled originally for March 11, was rescheduled several times
at the Respondent's request. As stated above, it was finally held on May 5 and 6-
Between February 26 and May 6 the Union did not ask the Respondent for a
meeting date. Ebert spoke to Berger on May 6 immediately after the conclusion of
the hearing. He requested a meeting between the parties "as soon as possible to
commence negotiations again." He suggested that they have a meeting that after-
noon. Berger replied that he had to prepare a brief on the unfair labor practice
case, that this would "take some time," and that Ebert should contact him later for
a meeting date.
Sidney Gaines, the Union's attorney, sent the following letter, dated May 6, 1964,
to Berger:
I represent Local 445, I. B. T.
I have been advised by this Local Union that it has had difficulty in airang-
ing a meeting with you for the purpose of concluding negotiations for a Col-
lective Bargaining Agreement.
Our client would like to devote Thursday and Friday, May 14th and 15th,
1964 to the holding of such meetings. If agreeable to you, please communicate
with the undersigned so that a mutually agreeable time and place can be
worked out.
I shall await your advice.
On May 11, 1964, Berger answered the above letter as follows:
This is to acknowledge receipt of your letter of May 6th, 1964.
I find it strange indeed that you should have been advised by your Local
that it has had difficulty in arranging a meeting with me. I last heard from your
Mr. Ray Ebert on February 26th when he failed to appear at a pre-airanged
3 The record discloses that there were approcnnately 35 drivers in the appiopriate unit
4 Ebert called Berger during the morning of February 26 and told him that he would not
be able to attend the meeting George Shaeffer, a representative of the Union who had
attended other meetings between the parties, appeared at Berger's office about 1 20 pin.
on February 26 He told Berger that lie could not proceed without Ebert.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting to be held in my office on that day when my client and I were ready to
proceed Our only word from your Local since, has been in the form of a
charge filed March 20th, 1964, Case No. 3-CA-2305, for refusal to bargain
which charge was withdrawn by letter of approval from the National Labor
Relations Board dated April 17th, 1964.
My schedule for the balance of this month, including the present Supreme
Court Trial Term in Ulster County, makes it difficult for me to agree upon a
specific date or dates. In addition, I shall have to consult with Mr. Harry
Resnick, President of Channel Master Corporation as to his availability.
I shall advise you in due course.
Gaines wrote again to Berger on May 19, requesting him to specify "two days
during the first ten days in June" as meeting dates. Berger by letter, dated June 1,
1964, replied as follows:
This is in reply to your letter of May 19, 1964.
It was agreed with your Mr. Raymond F. Ebert at the outset of negotiations
that he would not request that we meet for two consecutive days.
It will be agreeable that our next meeting take place on June 11th, 1964 at
my office at 1:00 P.M.
The parties met as scheduled on June 11. Resnick was not present. Ebert and
Berger finished the reading of the Union's proposed contract. The Union agreed
to some of the Respondent's suggested changes. However, Berger continued to
refuse to agree to any one of the clauses even when changed at his suggestion. He
stated that "these changes would all be incorporated" in the Respondent's counter-
proposal. Concerning the conclusion of the meeting, Ebert testified credibly as
follows :
when we concluded our session for that day, and we were discussing
when we would meet again; Mr. Berger was unable to give us a date and the
reason that he said that he had to put together his counter proposal to our
proposal for the collective bargaining agreement. And he said, "I just can't
tell you how long this is going to take." He suggested, "You call me in a
couple of weeks and in the meantime, if you would send me any literature that
you have on your hospitalization, your welfare program and pension program
so we can study that and use that if we find that we could," and that is how
we left off at that meeting. And again, at this meeting, Mr. Berger pointed out
this was a very serious step the Company was taking, that they had a thousand
other employees who had no Union affiliation and they wanted to be very cer-
tain that they did the right thing in this particular case.
I suggested we meet sooner, within three or four weeks at the most.
... But he would not agree to any date because he had this work that he
wanted to do and he wanted to have this proposal completely finished. He
used the words, he said, "It would be so complete and so fair that I feel after
you have read it that the Union will accept it." He said, "That is how fair
our proposal is going to be."
On June 15 Ebert sent Berger the following letter:
As promised at the conclusion of our collective bargaining session last
Thursday, June 11, we are enclosing herewith a booklet explaining in detail
the various 445's hospitalization and pension program.
The program, hospitalization and pension, proposed for your employees is
described in the Freight Division section of this booklet.
As you promised, please advise this week when your counterproposal will be
ready.
Berger answered Ebert's letter by letter, dated June 19, 1964, as follows:
Thank you for forwarding to me a copy of the Welfare Plan which I
requested at our negotiating meeting last week. Since it is new to us we will
give it the careful study it requires.
As you were informed at our last meeting, the counterproposal you requested
necessitates a current review of your entire contract proposals. In view of
the length of the proposed contract, your just-completed explanation of its
provisions, and the seriousness and care with which we desire to consider
CHANNEL MASTER CORP. 637
your demands, it appears that such counter-proposal will not be completed
before late July or early August.
We appreciate your present desire for a quick presentation of our counter-
proposal. However, in the light of the foregoing, I am sure you can under-
stand that the time set forth above will be required for proper consideration
of such counter-proposal.
On June 25 Ebert sent the following letter to Berger:
We cannot permit negotiations to drag out interminably. There is nothing
so complex or novel in our contract proposals which would necessitate a
further delay of more than two months.
We do not believe you are bargaining in good faith. If you really desire
to reach an agreement you can evidence your intent by meeting with us
quickly and negotiating until a contract is signed.
We shall expect to hear from you on or before July 1, 1964 to fix a
mutually satisfactory time and place.
Berger replied to Ebert by letter, dated June 26, 1964, as follows:
I take extreme issue with the contents of your letter of June 25th.
We, at all times, have been bargaining in good faith and strong exception
is taken to your statement that we are not doing so.
At our negotiating meeting on February 5th, you agreed that you would
meet with us on February 26th, but you failed to appear on that day. In
your absence, Mr. Shafer advised that you would call me within a day or
two thereafter to arrange a new meeting date. However, the next word I had
from you or the Union was a letter from your Counsel, Mr. Gaines, dated
May 6th, and thereafter it was mutually agreed to meet on June 11th. Not-
withstanding this delay on your part, you saw fit on Marcn 20, 1964 to have
a charge filed against us for refusal to bargain, which charge was withdrawn
with the approval of the National Labor Relations Board, as we were advised
by letter dated April 17, 1964.
The Channel Master plant will be on vacation for most of the month of
July. The previously advised date for our reply to your proposals was not
submitted for the purpose of dragging out our negotiations, and I would
further point out that your reference to "a further delay of more than two
months" is, in any event, most inaccurate.
As has been stated to you on many prior occasions, and as set forth in
our letter to you of June 19th, this matter will be given our most serious
attention and it is for this reason and the others set forth in that letter that
we cannot submit a reply to your demands prior to the date set forth therein.
On July 27 Ebert sent Berger the following letter:
It has been six weeks and four days since our last negotiating session and
still no word from you as to the date of our next meeting.
In an effort on our part to bring these negotiations to a conclusion, we are
setting aside August 5, 6 and 7, for negotiations with you. Of course, if you
desire to meet earlier, we will be ready and available.
Kindly confirm the above dates by return mail.
The parties met again about 1 p.m. on August 11, 1964. Berger, Conrad, and
Stengel represented the Respondent. Berger stated that Conrad was "the chief
negotiator for the Company from here on out." Ebert asked for the Respondent's
counterproposal. Concerning the Respondent's reply to this request, Ebert testified
credibly as follows:
Mr. Conrad said, "We will use your proposal and we will work off your
proposal." And I turned to Mr. Berger, who was standing behind his desk,
and said, "Mr. Berger I am here and I expect a complete counter proposal
from the Company. This is what I have been waiting for. This is why we
just had a two month delay. This is why we went through the type of
negotiations we went through for a whole year. You were going to submit
in writing to us, a complete contract." And I reminded him that he said it
would be so fair, after we read it, we would sign it and I said I might just
do that, where is it, let me have it, . . .
He would not answer.
After the above conversation Ebert and Conrad argued back and forth, with
the former asking for the Respondent's counterproposal and the latter insisting
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they start reading at the beginning of the Union's proposed contract. Finally,
Ebert agreed and read through the Union's proposal. With respect to seniority,
Conrad stated that he would present the Respondent's position "in writing" at the
next meeting. During the reading of the Union's proposed contract, the Respond-
ent's representatives suggested changes Some of these changes had been suggested
by Berger and accepted by Ebert at previous meetings. Berger again stated that
the Respondent would not agree to any specific clause until agreement was reached
on the whole contract. At the end of the meeting Ebert suggested that the parties
meet again the following week. Berger said that this was impossible as he had
"prior commitments," but that he was available for September 3. Ebert accepted
this date.
At the conclusion of the meeting held on September 3, Berger suggested that
the next meeting be set for September 25. When Ebert requested an earlier date,
Berger refused, saying that he had "private commitments in between." 5 At some-
time before September 25 Berger called Ebert and postponed the meeting until
9 a.m. on September 29. He again called Ebert and postponed the meeting until
10 a.m. -
The meeting of September 29 lasted about 21/2 hours It was interrupted by
Berger who stated that he had an appointment with an agent of the Board. Berger
and Conrad suggested that the next meeting be set for the third week in October.
Ebert objected, saying that they would have to have a meeting "much sooner" as
they had made "absolutely no progress at this meeting." The Respondent's repre-
sentatives refused to agree to an earlier date. The meeting adjourned without a
date being set. Ebert called Berger about a week later. They agreed to hold the
next meeting on October 30.
At the meeting of October 30 the Respondent submitted its written proposal
for "Grievance Procedure and Arbitration." The entire meeting was devoted to
a discussion of this proposal. Meetings were held on November 5 and 24. At the
latter meeting seniority was discussed. The Respondent's representatives stated
that they would present their position on seniority "in writing" at the next meeting.
At the next meeting, held on December 2, Ebert asked for the Respondent's
written proposal on seniority. Conrad answered, "We are not in agreement in sub-
stance, and therefore, we have nothing in writing for you at this time." Ebert then
referred to the seniority provision in the Respondent's booklet, entitled "Your
job with Channel Master," and asked Conrad if the Respondent's position on
seniority was "different than the rest of the employees in the plant." The parties
discuss°d the question of seniority for 2 or 3 hours, but no agreement was
reached.
The parties next met on December 29, 1964. Among other matters they dis-
cussed the Union's "health, welfare and pension" plan and the Respondent's "profit-
sharing plan." Berger told Ebert that he had reviewed the plans with Resnick and
that they had found that the Union's plan was "a lot cheaper" than the Respond-
ent's plan. Ebert replied that he had not made a comparison. Berger then said,
"I am going to tell you what kind of a guy Harry Resnick is. He said that the
men can have either plan, they can have . the Retirement Profit-Sharing Plan
of the Company's [sic] or they can have the Union plan, even though the Com-
pany's is more expensive " The parties also discussed overtime at this meeting.6
It was agreed that Stengel would "run a survey" to find out what the cost would
be to the Respondent under the Union's overtime proposal.
At the meeting held on January 19, 1965, Ebert asked for the results of the
survey on overtime. Stengel replied that he did not make the survey. The parties
then discussed the question of overtime for about 1 hour. Berger stated that the
Respondent would not pay overtime after 9 hours and asked why the Union would
not be satisfied with overtime after 46 hours. Maier asked what assurance did the
employees have that they would work more than 46 hours per week.? Berger
asked him how many hours he was working at the time. When Maier replied that
he was working 60 or 70 hours per week, Berger said that there was "no reason"
why he should not continue to work the same number of hours. At the con-
clusion of the meeting the parties discussed the next meeting date. The Respond-
5 As noted above , the charge in Case 3-CA-2440 was filed by the Union on Septem-
ber 4, 1964
6 The Union was asking for daily overtime for work after 9 hours The Respondent paid
overtime to its drivers for work after 46 hours per week
9 With the exception of the Refrigerated Fleet , at all material times herein the drivers
were working under a guaranteed workweek of 46 hours
CHANNEL MASTER CORP. 639
ent's representatives stated that no date was available until March 2, since Conrad
would be away for personal reasons.
Ebert started the meeting held on March 2 by stating that the parties had done
"a lot of talking," that they knew the positions of each other, and that he thought
that the time had arrived for an agreement to be "hammered out." He suggested
that they start with "Article I" of the Union's proposed agreement . The Respond-
ent's representatives agreed . During the meeting some few of the Union's pro-
posals, including language, were agreed to by the parties. Although the meeting
lasted about 4 hours, the discussion between the parties covered only the first
three articles of the proposed contract.
The meeting held on April 5 lasted about 3 hours. Discussion was confined to
seniority.
The parties next met on April 29. Ebert opened the meeting by stating that he
had "a deadline to meet" as the employees had indicated to him their intention
to go on strike on April 30 unless "substantial progress" on a contract was made
at the meeting. Berger stated that he would not negotiate if there was "talk of a
strike." However, after Berger and Conrad left the room, they returned and
announced that they were ready to proceed. When they reached article 7 of the
Union's proposed contract, Ebert referred to the Respondent's written proposal
on grievance and arbitration. He asked if the parties were in agreement on that.
Conrad answered, "Yes." When they started to discuss the pension plan, Berger
stated that Resnick wanted "those employees who joined the Union to have the
Union's Pension Plan and those employees who did not join the Union to be
covered by the Company's Profit-Sharing Retirement Plan." 8 Ebert rejected this
proposal, saying that he did not think it would be legal and that the parties
would have to agree on one or the other. He reminded Berger that he (Berger)
had stated at a previous meeting that the Union "could elect to, take either the
Company plan or the Union plan," and that he (Ebert) had so informed the
employees. At the end of the meeting Ebert told Conrad and Berger that there
would be no strike, as in his opinion "substantial progress" had been made. The
parties agreed to meet again on May 5.
On May 3 Ebert and Berger had a telephonic conversation. Ebert said that the
parties were "awfully close to an agreement," and asked him what he could do on
a wage increase. Berger offered a wage increase of 10 cents an hour effective 12
months from the date of the signing of the contract. Berger said that if this offer
was accepted, "everything else would be as is." Ebert asked if that meant that pro-
visions "like the steward situation" already agreed to would be in the new contract.
Berger answered, "Certainly any areas . . . already agreed to, that would be covered
by my meaning, . . . the expression as is." Berger also told Ebert that the parties
would have to agree "on specific language" for the contract at the next meeting.
At the meeting held on May 5 Commissioner Palmer of the Mediation Service
was present. At the start of the meeting Berger asked Ebert if he had prepared a
contract in accordance with their previous conversation. Ebert replied that he had
not because the language was "too hazy" and the wage offer was not satisfactory.
When Berger asked if the Respondent's wage offer was accepted, Ebert said that
it was not. Berger said, "Why didn't you tell me that? What are we meeting here
today for?" Ebert replied to the effect that he wanted to see if he could get the
Respondent to increase its offer "a little bit." After discussion between the parties,
Berger and Conrad called Resnick. Berger then offered to make the wage increase
effective in 9 months provided the term of the contract was for 3 years. Ebert said
he would submit the offer to the union members.
A union "ratification meeting" was held on Sunday, May 9. Ebert advised the
employees of the articles that had been agreed upon tentatively by the parties,
including the wage offer. The membership rejected the proposed contract.
Negotiations were conducted on May 12 and 20. As a result of these negotia-
tions, Berger told Ebert that the Respondent would agree to the Union's seniority
proposal "for purposes of layoff and rehire only," 9 and to the maintenance of
membership clause. He stated that the Respondent also would agree to the Union's
wage demand for "five cents now and five cents in one year," and to 2 years for
the termination date of the contract. Berger told Ebert that "the specific language
would have to be reviewed and discussed and agreed upon at our next meeting."
S Maier was present at this meeting.
b The Respondent maintained separate seniority lists for each fleet of its drivers. The
Union proposed one list for all drivers
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union held a ratification meeting on May 23. The members accepted the
offers as proposed by the Respondent . On or about May 24 Ebert called Berger
and advised him of the ratification meeting. They arranged for a meeting between
the parties on June 4.
Berger opened the meeting held on June 4 by stating that Resnick was "very
adamant" on his proposal for profit sharing and retirement, and that the Respond-
ent must have a 3-year agreement . Ebert accused Berger of "kidding." Berger
replied that he was not kidding and that it was a -"serious matter" as Resnick was
firm in his position . Ebert told Berger that he ( Berger ) previously had agreed that
all employees in the unit could have the Respondent 's profit-sharing plan. Berger
answered that at the meeting held on April 29 Ebert had said that the Respondent
could choose either its plan or the Union 's. Ebert stated that at the ratification
meeting held on May 23 the employees had elected to retain the Respondent's
profit-sharing plan, and that they had accepted the proposed agreement with the
understanding that it was for two years . Ebert said , "I am certainly not going to
start discussing this all over again . . . We have nothing to discuss. . . We have
an. agreement and I am not going back to the men." Ebert then picked up his
papers and put on his coat . When Berger asked him where he was going , he replied,
"I am going to get out of here ." Berger asked if his leaving meant a strike. Ebert
said that it did . When Berger asked him to "sit down ," Ebert answered , "I'll sit
down if we have something to discuss . I am here today to put into the contract this
language, and I am not here to negotiate on any item. . . Clear up the language,
make it read a little better . I am not here to discuss a serious item like retirement,
profit sharing and duration of the agreement and enter into any negotiations with
you over that ." He proposed that they "initial some draft of this language so that
when the typist brought the copy back we wouldn 't get involved in any hassle."
Berger said that that procedure would take "too long." He suggested that Ebert
draft the contract in accordance with the agreements of the parties. Ebert agreed
to do this. However , at the insistence of Ebert , the language of the maintenance-
of-membership and "reopener" clauses was approved . The Respondent submitted
to Ebert its written proposal for a "Management Rights Clause" during this
meeting.
An attempt was made to reach Resnick by telephone to get his approval on
including in the contract the Respondent's profit -sharing plan for all employees and
on limiting the contract to 2 years. They were unable to reach Resnick. It was
understood that Ebert would include these items in drafting the contract . Conrad
specified that language should be inserted in the draft so that the Union would
have no control over the Respondent 's profit-sharing plan. Ebert agreed to do this.
As will be discussed hereinafter , during the early part of May the Respondent
had reduced the weekly hours of work of the drivers in its heavy fleet. Contrary
to usual practice , their hours for the most part were limited to the 46 -hour weekly
guarantee . Ebert and Maier mentioned this to Berger at the close of the meeting
held on June 4. Berger asked Stengel if this was correct. When Stengel replied
that it was , Berger said to Ebert, "There is an obvious answer to that. We were
faced with a strike. We made other arrangements to haul our material." Ebert
answered , "Well, do you think things are going to get back to normal . That strike
threat has been off for over a month ." Berger then said , "Well, things should be
getting back to normal now."
Using his notes , Ebert drafted the contract in accordance with his understanding
of what the parties had agreed upon. It included in article 11, entitled "Union
Membership ," an escape clause, and in article XI, entitled "Accidents , Safety
Violations , Etc.," the language "in any civil court." Ebert presented the draft to
Theodore Daley, secretary -treasurer of the Union, for his approval . Daley objected
to the escape clause and the word "civil ." Although Ebert pointed out that he had
agreed to these items and that the employees had ratified the contract , Daley had
the pages in question retyped with the deletions . The contract with a covering
letter, dated July 1 , 1965, was sent by Daley to Berger. The latter states in part
as follows:
Enclosed herewith you will find the proposed draft of our newly negotiated
agreement . I am certain that the enclosed proposal reflects our final under-
standings reached in our negotiations , and submit same for your inspection
and approval.
I would suggest that as soon as you have had an opportunity to review the
contract that you advise this office so that we may arrange for a mutually
convenient time, date and place to meet for the purpose of signing same.
CHANNEL MASTER CORP. 641
On or about July 29 Berger called Ebert and arranged for a meeting on Au-
gust 2. Ebert, Daley, Maier, and several other union representatives appeared for
the Union. Berger, Conrad, Stengel, and Belitsky, the traffic manager, appeared for
the Respondent Berger and Conrad stated that there were some "minor" changes
in the contract that they wanted to discuss. Berger said, "For example, we never
agreed to incorporate the profit-sharing retirement plan by reference in this Agree-
ment." The parties then proceeded to discuss the changes. They started out with
article I, entitled, "Scope of Agreement." There was considerable discussion about
what was meant by the language in this article. Although Ebert stated that the
Union had never claimed representation of the local truckdrivers, the Respondent
insisted upon clarification of the language in order to make it plain that local oper-
ations were not covered by the article. Section 3 of article I. also was discussed.
The Respondent wanted this section specifically to exclude successors of the
Respondent. After the parties had discussed article I for about 2 hours, Daley
inquired' concerning the number of changes the Respondent wanted in the contract.
Conrad answered, "Quite a bit more." Berger stated that the parties were "basically
in agreement on the whole thing," but that there were "a few language problems."
Daley then suggested that the Respondent draft the contract with the changes that
it wanted and send it to the Union. Conrad and Berger agreed to this. Ebert asked
Berger if there was any truth to rumors that the Respondent had sold its aluminum
mill. Berger replied that the mill had not been sold but that such a sale was con-
templated. Berger claimed that the possible sale had been discussed at a previous
meeting . Ebert denied this and asked Berger what effect a sale would have on the
drivers. Berger replied , "none of the employees will be affected." Ebert also men-
tioned to Berger that the drivers in the heavy fleet were still complaining that they
were working only 46 hours per week. Berger asked Belitsky if this was so. Belit-
sky replied to the effect that he was using local carriers for some work rather than
the Respondent's fleet, because it was "cheaper." He asked if this was "illegal."
On August 27 Ebert called Berger and asked "what was holding up the finaliz-
ing of the contract." Berger replied that there was a typing problem but that he
would send it to him shortly. On August 30, 1965, Berger mailed to Ebert the
Respondent's version of the agreement. This contract differed in many material
respects from that submitted by the Union on July 1.
The above facts are based upon documentary evidence and upon portions of the
testimony of Ebert, Maier, Daley, Berger, and Conrad. Testimony contrary to the
above is not credited.
C. Unilateral conduct
1. Increases in compensation
During early March 1964, the Respondent's drivers received notices of certain
changes in "pay procedures," effective March 7, 1964. In addition to the changes,
the notice clarified some existing rules governing "pay and expenses." Maier testi-
fied without contradiction that the changes involved an increase in pay for driving
time, a 1-hour allowance with pay for paper work, and an increase of from 75 cents
to $2 per day for meal allowance. The changes were put into effect. The Respond-
ent did not notify or give the Union an opportunity to bargain with respect to the
above changes. In its original contract proposal, the Union had asked for an
increase of 75 cents in the meal allowance for a trip of 12 hours.
On August 10, 1964, the Respondent notified its drivers of a change, effective
retroactively to May 1, 1964. The change increased the amount paid for "drops
... after the first three" and applied to "mileage runs only." The Union received
no notification from the Respondent as to this change.
Also during August 1964, the Respondent gave all drivers in the light and heavy
fleets a pay increase of 5 cents per hour. The drivers in the refrigerated fleet, who
did not receive the raise, constituted about 25 percent of the 35 drivers in the
appropriate unit. Maier testified without contradiction that to his knowledge there
was no company practice of giving wage increases at specific times or at that par-
ticular time of the year. The Respondent did not give the Union any prior notice
of the above wage increase.
By notice dated February 22, 1966, the Respondent advised its drivers that,
"on Feb. 19, 1966, a general increase in the wages of all hourly employees
became effective." The notice stated that the hourly rate for "over the road
drivers" was increased 10 cents per hour to $2.65, that the mileage rate was in-
creased by $ .0033, and that the new rates applied "to trips which began on and
264-047-67-vol. 162-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after Feb. 19, 1966." 10 The Respondent did not notify the Union of these
increases.
2. Subcontracting
It is undisputed that before about May 1, 1965, the Respondent subcontracted
work to common carriers; that such subcontracting was limited to times when the
Respondent had more work than its own drivers were able to handle and did not
affect the number of hours of work of its drivers; and that after May 1, the
Respondent used "a lot more carriers" than before, performing work formerly done
by the Respondent's drivers.
It is also undisputed that the Respondent leased trucks both before and after
May 1, 1965. However, before May, one of the Respondent's drivers usually was
assigned to a leased truck; after May 1 the Respondent's drivers were not used on
leased trucks.
The evidence shows that this new practice of the Respondent drastically reduced
the hours and pay of its drivers. Henry Miller for the 19 weeks through May 7,
1965, worked, overtime (after 46 hours) every week except one and averaged about
$170 a week. For the following 19 weeks he worked overtime only 9 weeks and
averaged about $130 a week. Joseph Sanabria for the 19 weeks through May 7
worked overtime during 15 weeks." During the following 19 weeks there were
only 10 weeks during which he worked some overtime. His average weekly pay for
the weeks through May 7 was about $160. Thereafter, his weekly average was
about $135. For a similar period through May 7 there was only 1 week during
which Maier failed to work overtime. During this period his weekly earnings aver-
aged about $181. For a like period after May 7 he failed to work any overtime dur-
ing 9 weeks and his weekly earnings averaged about $126. William Spain for the
period of 19 weeks through May 7 worked overtime every week, with average
weekly earnings of about $178. For 22 weeks after May 7 he did not work overtime
during 8 weeks and his earnings averaged about $130 a week. The evidence dis-
closes that the hours and wages of drivers William Brown, Robert Simonson, and
Michael Cusato were likewise reduced after May 7. All of the above employees
were drivers in the heavy fleet.
In addition to reduced hours and wages, the Respondent's new practice caused
the layoff of at least one employee. Sanabria testified that he was laid oft on Au-
gust 20, and that he was rehired on August 27 for the light fleet. At the hearing the
parties stipulated that the Respondent "did lay off or otherwise separate" Brown
and Simonson on May 28 and Crotty on August 17. Brown, Simonson, and Crotty
did not appear at the hearing as witnesses.
It is undisputed that the Respondent did not notify the Union of the changes in
its operating practices of subcontracting or in using leased trucks. As related and
found above, Ebert complained to Berger about the reduction in hours of the
drivers in the heavy fleet at the bargaining sessions held on June 4 and August 2,
1965.
3. Aluminum mill
On September 25, 1965, drivers Miller, Cusato, and Maier were called to the
office Stengel, Belitsky, and Tom Briggs, the Respondent's dispatcher, were pres-
ent. Stengel told the employees that the Respondent had sold the aluminum mill to
"V.A.W." and the heavy fleet trucks to Jan Leasing. He also told them that Res-
nick had arranged with Jan Leasing so that they would have "first preference" for
jobs with that company since it was going to truck for V.A.W. The employees
asked if they could be transferred to the light fleet. Stengel replied that there were
no openings in the light fleet at that time. He stated that they had "two choices,"
either to take a layoff and go to "the bottom" of the seniority list for the light fleet
or to apply for jobs with Jan Leasing. The employees then asked about their inter-
est in the Respondent's profit-sharing retirement plan, mentioning that they had to
io The contract submitted by the Union on July 1, 1965, provided that the hourly rate
increase to $2 65 and a mileage rate increase were to become effective May 15, 1966 The
contract submitted by the Respondent on August 30, 1965, provided that the hourly rate
increase to $2 65 and a mileage rate increase were to become effective on May 1, 1966
The mileage rate in the Respondent's contract NN as OS8290 per mile The rate in the Union's
contract was 0890 per mile The rate effective February 19, 1966, as increased iias
08830 per mile
11 Sanabria worked in the light fleet until near the end of May of 1965 when he was
transferred into the heavy fleet
CHANNEL MASTER CORP. 643
work through September 30 in order to be eligible for it. Stengel replied that they
would be paid for the week so that they would not lose it. The three employees went
to Jan Leasing that same day and applied for jobs.
William Spain was a driver in the heavy fleet. During the early part of
September, Briggs told him that his truck would be discontinued from service in the
heavy fleet at the end of the week, and that he either could transfer to the light
fleet at the bottom of its seniority list or look for another job. Spain transferred to
the light fleet. In this work his trips were "strictly to New York City only." After
some few weeks he had another conversation with Briggs. Briggs told him that the
Respondent was "changing the method of operation," that the New York City run
"would be operated by one man," that it would be made only 3 days a week, and
that he (Spain) would "probably wind up with only about 46 hours a week on
that run." When Spain stated that the Respondent could not truck all of the mate-
rial in 3 days, Briggs replied that the Respondent was going "to start shipping
more stuff by common carrier." He told Spain that Jan Leasing was going to take
over the Respondent's heavy equipment, that the company was going to do the
trucking for V.A.W., and that he should apply for a job with Jan Leasing.
Spain obtained a job with Jan Leasing. He left the Respondent's employ on
October 1.
The conversation between Berger and Ebert at the meeting held on August 2 has
been related and found above. The Respondent did not give the Union any notice
concerning the sale of the aluminum mill or the sale of the trucks.
D. Conclusions
At the hearing herein the Respondent objected to any testimony concerning events
which transpired prior to the settlement agreement in Case 3-CA-2440. The objec-
tion was overruled. In its brief the Respondent contends that conduct which
occurred in the period prior to March 10, 1965, the date the Respondent signed the
settlement agreement, may not be found violative of the Act unless violation of the
settlement agreement is found in acts and conduct that occurred after that date. In
view of findings hereinafter made, violation of the settlement agreement by the
Respondent did occur. Accordingly, findings herein are based in part upon conduct
occurring prior to March 10, 1965.
It is found that the Respondent violated Section 8(a)(5) of the Act on and
after March 4, 1964. This finding is based upon evidence showing that the Respond-
ent did not bargain in good faith with the Union.
Between November 21, 1963, and August 2, 1965, the parties held meetings on
about 22 occasions. The evidence shows that although the Union pressed the
Respondent for meeting dates, it failed and refused to meet at reasonable intervals
and engaged in other dilatory tactics. This is particularly so during the period
between May 6 and October 30, 1964. At the meeting held on February 5, 1964,
Berger stated that he would submit the Respondent's counterproposal after he and
Ebert had read through the Union's proposal, and that he would not meet again
until after the hearing in the pending unfair labor practice case was concluded.
On May 6 Ebert requested that negotiations be resumed as soon as possible. Berger
refused, saying that he had to prepare a brief in the unfair labor practice case.
When the Union's attorney wrote to Berger on May 6, suggesting meeting dates on
May 14 and 15, Berger answered that he could not agree to a date because of his
"schedule" for "the balance of this month" and because he had to consult with
Resnick "as to his availability." When the parties finally did meet on June 11,
Resnick was not present. At the conclusion of that meeting Berger would not agree
to the next meeting date, giving as a reason the length of time it would take for
him "to put together" the Respondent's counterproposal. When Ebert wrote to him
on June 15 and asked when the counterproposal would be ready, Berger replied that
it would not be completed "before late July or early August." Although Ebert
complained about this long delay and urged a meeting in early July, Berger would
not agree to meet until August 11. This was exactly 2 months after the preceding
meeting. At the meeting held on August 11 the Respondent failed to produce the
promised written counterproposal. Instead it insisted on reading once again through
the Union's proposal.
The above furnishes an example of the delaying tactics employed by the Re-
spondent during the negotiations. While there is no legal requirement for a party
to submit a written counterproposal, the failure to do so under certain circumstances
may have a bearing on the question of good-faith bargaining. In my opinion, the
Respondent's above conduct, namely its failure and refusal to meet at reasonable
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intervals and its failure to submit a written counterproposal, standing alone, shows
conclusively that the Respondent was not bargaining in good faith. In addition, other
conduct of the Respondent, hereinafter found, supports this conclusion.
The evidence discloses that after March 4, 1964, the Respondent engaged in cer-
tain unilateral conduct. It is undisputed that the Respondent did not notify or give
the Union an opportunity to bargain on any of the matters involved. On March 7,
on August 10, on an undisclosed date during August 1964, and on February 22,
1966, the Respondent either granted pay increases or otherwise made changes affect-
ing the compensation of its drivers. There is no evidence that impasses had been
reached during the negotiations on any of the above. In fact, the evidence is to
the contrary in at least some instances. As related above, in its original proposal
the Union had asked for an increase to $3.75 for expenses on trips of less man 12
hours. This was the amount granted on March 7, 1964. The pay increases, effective
February 19, 1966, had been agreed upon during the negotiations, but were not to
have become effective until May. It is found that the above unilateral conduct was
violative of Section 8(a)(5) of the Act.
On or about May 1, 1965, the Respondent departed from its usual practice in
the use of common carriers and leased trucks. It is undisputed that this subcontract-
ing of unit work adversely affected the wages and hours of the drivers in the heavy
fleet and caused the layoff of at least one employee. The Respondent contends in
this connection that its action was justified in view of the strike threat made by
Ebert at the meeting held on April 29, 1965. This contention is rejected. At that
same meeting Ebert told Berger and Conrad that the strike threat was off because
"substantial progress" toward a contract had been made. There was no strike or
threat of a strike thereafter. When Ebert brought up the reduced hours and wages
at the meeting held on June 4 and pointed out that the strike threat had been off
"for over a month," Berger replied that "things" would be "getting back to normal
now." Notwithstanding this assurance, the Respondent continued its abnormal use
of common carriers and leased trucks.
The above conduct of the Respondent caused Maier, Miller, Spain, Cusato, Sana-
bria, Brown, and Simonson to suffer a substantial loss of customary overtime earn-
ings and caused the layoff of Sanabria from August 20 to 27, 1965. It is clear that,
had Respondent honored its statutory bargaining obligation in the first instance. these
employees would not have sustained such losses without the protection afforded
them by the bargaining process. As a result of such a bargaining process the work,
instead of being subcontracted, might have been retained in the unit, in which
instance the drivers would have suffered no loss. In any event, the Respondent was
obligated under the Act to afford the Union an opportunity to bargain about the
subcontracting of unit work before it took place, since it was the exclusive bargain-
ing representative of the affected employees. Accordingly, and in view of the
Respondent's past history of unfair labor practices, I find that the Respondent by
unilaterally subcontracting unit work on and after about May 1, 1965, violated
Section 8(a)(3) and (5) of the Act.
The complaint alleges that Brown, Simonson, and Donald Crotty were laid off
in violation of Section 8(a)(3). At the hearing the parties stipulated that the
Respondent "did lay off or otherwise separate" Brown and Simonson on May 28
and Crotty on August 17, 1965. These employees did not appear as witnesses at the
hearing; and there is nothing in the record to show the circumstances under which
their employment was terminated. I find that the General Counsel failed to sustain
the burden of proof as to these three employees.
The Respondent sold its aluminum mill and its heavy fleet trucks on or about
September 25, 1965. It did not notify the Union of these sales or give it an oppor-
tunity to bargain as to the effect such sales would have upon the drivers. When
Ebert at the meeting held on August 2 mentioned the rumored sale of the mill,
Berger admitted that such a sale was being considered. However, he stated that
none of the drivers would be affected if the sale were consummated. Thus, the
Union was effectively forestalled from bargaining as to the effect of a sale on unit
employees. No mention was made by the Respondent at any time about selling the
heavy fleet trucks. It served this up to the Union as an accomplished fact. I find
that such unilateral conduct was violative of Section 8(a) (5) of the Act.
As a result of the above, Maier, Miller, and Cusato terminated their employment
with the Respondent on September 25. Their conversation with Stengel at the time
has been related and found above. In substance, he told drivers that they could
elect either to take a layoff and go to the bottom of the seniority list for the light
fleet or to accept preferential hiring by Jan Leasing. The General Counsel contends
CHANNEL MASTER CORP. 645
that by such conduct the Respondent dealt directly with the employees and bypassed
the Union, thereby undermining its status as collective-bargaining representative. The
Respondent contends that such was not the case since Maier, the Union's steward,
was present at the time. While the Respondent's contention may be valid insofar as
a separate finding of violation of Section 8(a)(5) of the Act may be concerned,
under all of the circumstances I believe that this conduct serves to confirm that the
Respondent was not bargaining in good faith. In this connection it is noteworthy
that during the negotiations the parties had agreed upon an overall seniority system
for the drivers. However, the above was not the only instance of such conduct.
The conversations between Spain and Briggs 12 have been related and found above.
I find that the Respondent bypassed the Union and bargained directly with Spain
concerning rates of pay, wages, hours of employment, and other terms and condi-
tions of employment thereby violating Section 8(a) (5) of the Act.
The complaint alleges that Maier, Miller, Cusato, and Spain were laid off in vio-
lation of Section 8(a) (3) of the Act. The evidence shows that on September 25
Maier, Miller, and Cusato elected not to go on layoff status and terminated their
employment with the Respondent by accepting jobs with Jan Leasing, and that on
October 1 Spain chose to terminate his job with the Respondent and take a job with
Jan Leasing rather than be limited to 46 hours of work per week. The record is
silent as to the reason why the Respondent sold its aluminum mill, but indicates
that the sale of the heavy fleet trucks was related to the sale of the mill. Under the
circumstances I find that the General Counsel failed to sustain the burden of prov-
ing that the separation of these four drivers from the Respondent's employment
was violative of the Act.
As related and found above, at the bargaining sessions held on April 29 and
June 4, 1965, with respect to a contract clause for a retirement plan, the Respond-
ent proposed that the Union's plan apply to union members in the unit and that the
Respondent's plan apply to nonmembers of the Union. Maier was present at both
of these meetings. The evidence discloses that the employees had been informed by
the Respondent that they were not fully entitled to their share of money in the
retirement fund until they had participated in the plan for 5 years, and that some of
the drivers had participated in the plan for less than 5 years. As related above, in
the prior unfair labor practice case the Board found that the Respondent's original
retirement plan was discriminatory in that it provided nonrepresentation by a union
as a requirement for participation.
The General Counsel contends that by making its proposal at the April and June
meetings the Respondent violated Section 8(a)(1) and (5) of the Act. This con-
tention is rejected. It appears that at the meeting of April 29 the Respondent merely
suggested this proposal. That the Union did not take the Respondent's proposal
seriously at the time is attested to by the fact that at a union ratification meeting
the employees were told that they could choose either the Respondent's or the
Union's retirement plan. Although Berger at the start of the meeting on June 4
stated that Resnick was "very adamant" on this proposal, the Respondent withdrew
from its position before the end of the meeting. However, while separate violations
of the Act in this connection are not found, I am of the opinion that this conduct
further establishes the Respondent's lack of good faith in the overall bargaining. As
found above, at the bargaining session held on December 29, 1964, Berger stated
that the drivers could have "either plan."
The General Counsel contends that the Respondent violated Section 8(a) (5) of
the Act in that it refused to sign a written agreement embodying rates of pay,
wages, hours of employment, and other conditions of employment agreed upon with
the Union. The Respondent disputes the contention that the contract submitted by
the Union on July 1, 1965, represents the agreement of the parties, and adds that
there were matters which the parties had agreed upon which were not included in
the submission.
The evidence shows that as of June 4, 1965, the parties had agreed upon the
contract or substance of a contract, but had agreed on actual wording or language
only in some instances. As related above, Daley made two changes in the draft
prepared by Ebert. In addition to these deletions, this contract does not reflect
agreement between the parties in other respects. For example, section 2 of article
19 In its brief the Respondent contends that the evidence does not establish Briggs as a
supervisor within the meaning of the Act. This contention is rejected. Miller, Sanabria,
Spain, and Maier testified that Briggs was their "boss" or "immediate supervisor." Bernard
Pitt testified without contradiction that he was laid off by Briggs during May 1965,
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III, covering stewards, reads, "Stewards shall be granted super-seniority for the
purpose of layoff and rehire." Ebert admitted that the Respondent had wanted the
word "only" added to this section. As to article V, Ebert admitted that the Respond-
ent had agreed to the Union's position on seniority for purposes of layoff and
rehire "only." Yet section 1(a) of article V reads in part, ". . . senior employees
shall have preference to work at the job at which the pay is highest, provided such
employee is qualified." In addition to the above, there are other instances where
the draft contract did not set forth correctly the agreement reached between the
parties. Some were material, such as failure to exclude specifically the drivers of the
refrigerated fleet from coverage under certain articles.
In conclusion, the Respondent on June 4 merely had agreed to agree. It delegated
to Ebert the job of drafting a contract in accordance with his understanding of
what the parties had agreed to. Ebert and Daley failed to draft a contract which
correctly reflected the agreements reached by the parties. Although at the meeting
held on August 2 Berger and Conrad stated that the parties were basically in
agreement on a contract but that some changes would have to be made and indi-
cated a willingness to discuss and dispose of them, Daley suggested that the
Respondent draft the contract in accordance with its understanding and submit it
to the Union at a later date. This the Respondent did. It substituted its language
for that used by the Union and included some of its own proposals, such as "no-
strike" and "management rights" clauses. The evidence does not show that the
Respondent consented to drop such proposals during the negotiations. Otherwise the
Respondent's draft contained the substance of the agreements reached by the parties.
Accordingly, I do not find a violation of the Act in this connection.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Since it has been found that the Respondent has failed to bargain in good faith
with the Union in violation of Section 8(a)(5) of the Act, I shall recommend that
the Respondent be ordered to bargain with the Union upon request as the exclusive
representative of all its employees in the appropriate unit concerning rates of pay,
wages, hours, and other terms and conditions of employment, and if understandings
are reached, embody such understandings in a signed agreement. It has also been
found that the Respondent violated Section 8(a) (5) of the Act by unilaterally
changing existing wage rates and other compensation of its employees, subcontract-
ing out work and selling its aluminum mill and heavy fleet trucks, and bypassing
the Union and bargaining directly and individually with employees concerning rates
of pay, wages, hours of employment, and other terms and conditions of employ-
ment. I shall, therefore, recommend that the Respondent be ordered to cease and
desist from such unilateral conduct.
It has been found that the Respondent discriminated against Maier, Miller, Spain,
Cusato, Sanabria, Brown, and Simonson, on and after about May 1, 1965, by pro-
viding them with less employment than they normally would have received and
discriminated against Sanabria by laying him off from August 20 to 27, 1965.
Accordingly, it will be recommended that the Respondent make these employees
whole for any loss of pay suffered by reason of the discrimination by payment to
each of them of a sum of money equal to that which he normally would have
earned as wages from the date of the discrimination to the date of the sale of its
heavy fleet trucks, or on or about September 25, 1965, or to the dates of their
termination of employment in the cases of Brown and Simonson, less his net earn-
ings during such period in accordance with the formula prescribed in F. W. Wool-
worth Company, 90 NLRB 289, together with interest on such sum, such interest to
be computed in accordance with the formula prescribed by the Board in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
CHANNEL MASTER CORP. 647
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. All over-the-road truckdrivers at the Respondent's Ellenville, New York, plant,
excluding local drivers, all other employees, office clerical employees, professional
employees, guards, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
3. The Union has been at all times on and after September 30, 1963, the exclu-
sive representative of all employees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning of Section 9(a) of the Act.
4. By failing and refusing on and after March 4, 1964, to bargain collectively
in good faith with the Union as the exclusive representative of all employees in the
aforestated appropriate unit, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
5 By unilaterally changing existing wage rates and other compensation of its
employees, subcontracting unit work, and selling its aluminum mill and heavy fleet
trucks without first notifying or affording the Union an opportunity to bargain
collectively, and by bypassing the Union and bargaining directly with the employees
in the appropriate unit concerning rates of pay, wages, hours of employment, and
other terms and conditions of employment, the Respondent has committed unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
6. By providing Maier, Miller, Spain, Cusato, Sanabria, Brown, and Simonson
with less employment than they normally received and by laying off Sanabria, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
7. By the foregoing conduct the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed to them by Section 7 of
the Act and has thereby committed unfair labor practices within the meaning of
Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, I recommend that the Respondent, its officers,
agents, successors, and assigns, shall be ordered to:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union, as the exclusive representa-
tive of all employees in the appropriate bargaining unit.
(b) Unilaterally changing the wages, hours, and other terms and conditions of
employment of its employees in the unit and subcontracting out unit work or sell-
ing equipment involving unit work without prior consultation with the Union.
(c) Bargaining directly and individually with employees in the appropriate unit
concerning rates of pay, wages,, hours, and other terms and conditions of
employment.
(d) Discouraging membership in the Union, or in any other labor organization
of its employees, by discriminating against them in regard to their hire and tenure
of employment or any term or condition of employment.
(e) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of their rights to self-organization, to form labor organi-
zations, to join or assist the above-named Union, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purposes of collective bargaining or
other mutual aid or protection, and to refrain from any and all such activities,
except to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized
in Section 8(a)(3) of the Act.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request bargain collectively with the Union as the exclusive repre-
sentative of the employees in the above-described appropriate unit with respect to
rates of pay, wages, hours of work, and other terms and conditions of employ-
ment, and embody in a signed agreement any understandings reached.
(b) Make whole Henry Maier, Henry Miller, William Spain, Michael Cusato,
Joseph Sanabria, William Brown, and Robert Simonson in the manner set forth
in the section of this Decision entitled "The Remedy."
(c) Preserve and upon request make available to the National Labor Rela-
tions Board or its agents for examination and copying all records necessary for
the determination of the amount of backpay due under these recommendations.
(d) Post at its plant in Ellenville, New York, copies of the attached notice
marked "Appendix." 13 Copies of said notice to be furnished by the Regional
Director for Region 3, after being duly signed by the Respondent or its authorized
representative, shall be posted by Respondent immediately upon receipt thereof
and maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 3, in writing, within 20 days from
the date of the receipt of this Decision what steps it has taken to comply
herewith.14
IT IS ALSO RECOMMENDED that the complaint be dismissed insofar as it relates
to the layoffs of Brown, Simonson, Crotty, Maier, Miller, Cusato, and Spain.
11 In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order " shall be substituted for the words " the Recommended Order of a
Trial Examiner " in the notice In the further event that the Board 's Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision
and Order "
11 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read • "Notify said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT unilaterally change the wages, hours, and other terms and
conditions of employment of our employees in the bargaining unit, or sub-
contract out unit work or sell equipment involving unit work without prior
consultation with Local Union No. 445, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
WE WILL NOT bargain directly and individually with employees in the bar-
gaining unit concerning rates of pay, wages , hours, and other terms and condi-
tions of employment.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive bargaining representative of all employees in
the following unit with respect to rates of pay , wages, hours of employment,
and other conditions of employment , and if understandings are reached,
embody such understandings in a signed agreement. The bargaining unit is:
All over-the-road truckdrivers at our Ellenville , New York, plant, exclud-
ing local drivers , all other employees, office clerical employees , profes-
sional employees, guards, and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named labor organization, or any
other labor organization , to bargain collectively through representatives of their
ENGINEERED BUILDING PRODUCTS, INC. 649
own choosing , to engage in concerted activities for the purposes of collective
bargaining or mutual aid or protection , or to refrain from any or all such
activities , except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL NOT discourage membership in Local Union No. 445, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
or any other labor organization of our employees , by discriminating against
them in regard to their hire or, tenure . of employment , or any tenure of employ-
ment, or any term or condition of employment.
WE WILL make whole Henry Maier, Henry Miller, William Spain , Michael
Cusato, Joseph Sanabria , William Brown , and Robert Simonson for any loss
of pay suffered as a result of the discrimination against them.
All our employees are free' to become , remain, or refrain from becoming or
remaining members of any labor organization. '
CHANNEL MASTER CORPORATION,
Employer.
- -------.-,-----.-------------------^----------Dated------------- - By---- (Representative ) ( Title)
This 'notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they - may communicate, directly with the ' Board 's Regional Office,
Fourth Floor , The 120 Building , ^ 120'Delaware Avenue, Buffalo, New York 14202,
Telephone 842-3112.
Engineered Building Products, Inc. and District No. 48, Interna-
tional Association of Machinists and Aerospace Workers,-AFL-
CIO., Case 30-CA-522. , January 5, 1967
DECISION AND ORDER
On August 30, 1966, Trial Examiner William Seagle issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the attached Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision and a supporting brief. The
Respondent filed a brief in answer to the General Counsel's excep-
tions and a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
162 NLRB No. 54.