Charles E Honaker

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1184 (N.L.R.B. 1964)

1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with closing down the plant in the event
the union is selected as the bargaining representative of our employees
WE WILL NOT make any promises of benefit to any of our employees in a
manner constituting interference , restraint , and coercion in violation of Section
8(a) (1) of the Act
WE WILL upon request bargain collectively with Amalgamated Clothing
Workers of America, AFL-CIO, as the exclusive bargaining agent of the em-
ployees in the appropriate unit with respect to rates of pay , wages, hours of
employment , or other conditions of employment , and if an understanding is
reached embody such understanding in a signed agreement The appropriate
unit is
All production and maintenance employees employed by Edro Corpora-
tion and Anasco Gloves, Inc, at their places of business located at
Anasco, Puerto Rico, excluding all office clerical employees , homeworkers,
guards, and supervisors as defined in the Act
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their rights to self-organization , to form , join, or assist
Amalgamated Clothing Workers of America , AFL-CIO , or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection , or to refrain from any or all
such activities
All our employees are free to become , remain , or refrain from becoming or re-
maining members of any labor organization , except as that right may be affected by
an agreement requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a) (3) of the Act, as amended
EDRO CORPORATION
Employer
Dated------------------- By-------------------------------------------
(Representative ) (Title)
MASCO GLOVES, INC,
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
Employees may communicate directly with the Board 's Regional Office, Post
Office Box 11007 , Fernandez Juncos Station , Santurce, Puerto Rico, Telephone No
724-7171, if they have any question concerning this notice or compliance with its
provisions
Charles E Honaker and Chauffeurs , Teamsters and Helpers
Local Union No 175, affiliated with the International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America. Case No 9-CA-2890 June 29, 1964
DECISION AND ORDER
On January 8, 1964, Trial Examiner James V Constantine issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision Thereafter, both the General Counsel
and the Respondent filed exceptions to the Decision and briefs in sup-
147 NLRB No 145
CHARLES E. HONAKER 1185
port thereof.' Respondent also filed an answering brief, and the
Charging Party filed a motion 'requesting the Board.to take admin-
istrative notice of certain related proceedings pending before it.
Pursuant to the provisions of Section 3('b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Fanning].
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, the Charging Party's
motion, and the entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner with
the following modifications.
We are in agreement with the Trial Examiner that Respondent
violated Section 8(a) (1) of the Act in the manner and to the extent
set forth in his Decision. We also agree with the Trial Examiner that
the Respondent violated Section 8 (a) (1) and (5) of the Act by dis-
continuing its contributions to the employees' insurance premiums
without consulting with or notifying the Union. However, unlike the
Trial Examiner, we do not find that Respondent's general conduct in
bargaining with the Union, or its refusal to furnish certain informa-
tion requested by the Union, violated Section 8 (a) (5).
' In his 'Decision, the Trial Examiner enumerates several factors
which, considered collectively and in the context of other unfair labor
practices of the Respondent, he finds denote bad-faith bargaining by
the Respondent. 'Specifically these are : the Respondent's refusal to
remain in session with the Union more than a few hours at a time; the
long delays between meetings, occasioned by Respondent's desire for
time to conduct various wage surveys and its cancellation of one sched-
uled meeting; Respondent's reluctance to state its position on union
proposals until it had an opportunity to study them; Respondent's
failure to submit its counterproposals promptly to the Union; and
Respondent's refusal to submit requested financial 'data to the Union,
while at the same time pleading inability .to pay: '
The first factor relied upon by the Trial Examiner concerned Re-
spondent's alleged refusal to remain in session with the Union for a
reasonable length of time. However, the record established that the
parties met on 11 occasions during the course of the negotiations and
that, on the average, the meetings lasted between 31/2 and 4 hours, with
adjournment -usually occurring at the dinner hour. While in most in-
stances it was the Respondent who suggested, that the meeting be ad-
journed, there is no evidence to indicate that the Union protested such
action. Moreover,.on at least one occasion the Respondent informed
736-236-65--vo1. 147-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union that it was willing to stay in session as long as necessary
to reach agreement, and in at least one instance, the parties reconvened
after the dinner hour and met for several hours thereafter. In such
circumstances, we fail to'see how it can properly be inferred that Re-
spondent was derelict in its duty to remain in session with the Union
for reasonabl&periods of time.
Likewise, we fail to see how the delays that occurred between bar-
gaining sessions can be said to be a factor evidencing Respondent's
alleged bad faith. The one meeting which was canceled had been
tentatively scheduled by the parties with the understanding that it
would be postponed if Respondent's counsel were required to be out of
town. While Respondent was remiss in not notifying the Union in
advance that the meeting was canceled, we draw no unfavorable infer- '
ence from a single incident such as this. Nor do the delays occasioned
by Respondent's desire to conduct wage surveys in the area support
such an inference. - From the outset of the bargaining negotiations
both parties realized that wages would be the most difficult item to
agree upon and, in recognition of this fact, they agreed to postpone
discussion of money items until later in the negotiations. Through-
out the negotiations, the Union took the position that it would not agree
to a contract which did not allow for an increase in wages, while Re-
spondent maintained that its employees were already among the high-
est paid service station employees in the area. Hence, it is only proper
that Respondent should seek to document its position. : Nor did the
Union raise any objection to such surveys being made, or to the time
requested by Respondent for this purpose. If, then, the Union did
not agree with the Respondent on the feasibility of such an approach,
its objection was not communicated to the Respondent. Without such
objection by the Union, Respondents' action may hardly be charac-
terized as dilatory.
With respect to the Trial Examiner's findings that Respondent
demonstrated its bad-faith bargaining by refusing to state its position
on union proposals until it had an opportunity to study them and,
correspondingly, its failure to be reasonably prompt or cooperative
in submitting its counterproposals to the Union, it is necessary to
consider the whole tenor of the negotiations. The record establishes
that from the first bargaining session on March 11 until the last session
on August 19,1 a total of 11 meetings took place between the parties.
During the first two meetings, the parties discussed the Unions' con-
tract proposal. However, no agreement was' reached except as to the
recognition clause and an understanding by the parties that the con-
sideration of wages be deferred until some later meeting. At the third
session, Respondent informed the 'Union that it had' prepared its '
1 The Trial Examiner's Decision mistakenly , dates the last meeting August 16.
CHARLES E HONAKER 1187
counterproposal However, as Respondent indicated it had "some
reservations" about the counterproposal, it was not presented until the
next meeting Thereafter, at the 6th meeting, the Union submitted
its second and last proposal, while at the 9th and 10th bargaining
sessions Respondent submitted separate proposals During the course
of the negotiations, the parties v ere able to reach agreement on some
19 different items However, they were not able to reach full agree-
ment on wages, seniority, arbitration, discharge, union shop, vaca-
tions, and rules and regulations Of these latter items, considerable
progress was made on all but wages, which, perhaps more than any
other item, prevented the parties from reaching agreement
Reviewing the whole progress of the negotiations, it would seem
that the Respondent was tardy in submitting its counterproposals,
especially in the early stages of the negotiations However, from
this factor alone, we are unable to attribute a bad-faith motivation to
the Respondent Nor do we see anything improper in Respondent's
asking to be permitted to study the various proposals until the next
meeting before stating its position, especially as this was a first
contract
In sum, we are satisfied that the aforementioned incidents are in-
sufficient to warrant an inference that Respondent was engaging in
bad-faith bargaining especially in view of the substantial progress
made in the negotiations and the numerous items agreed upon by
the parties
The last factor relied upon by the Trial Examiner to establish Re-
spondent's bad-faith motivation was Respondent's refusal to grant
the Union's requests for the name of the person Who conducted the
wage surveys, and for information as to the relation of wage increases
as a "cost factor" in the selling price of its gasoline and for Respond-
ent's profit-and-loss statement He also found that because the Re-
spondent had in effect pleaded inability to pay, the refusal to make
the requested financial information available contravened Section
8(a) (5) of the Act
While such refusals in the face of a plea of poverty would be viola-
tive of Section 8 (a) (5),a we do not believe the record warrants a find-
ing that Respondent pleaded inability to pay Throughout the
negotiations, the Respondent took the position that no wage increase
was warranted In explanation of its position, Respondent stated
that it intended to "remain competitive" with service stations in the
surrounding area and would pay the prevailing wage rate for the area,
but that it believed its present wage scale was among the highest in
the area In support of this position, Respondent conducted the
various wage surveys mentioned and concluded, based upon the re-
2 N L R B v Truitt Mfg Co , 351 U 8 149
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suits of these surveys, that no service station in the area paid higher
wages to its employees The results of these surveys were made avail-
able to the Union
However, Respondent made it clear that it was not pleading in-
ability to pay, and therefore was under no obligation to make known
the author of the surveys, or to provide the other financial data re-
quested by the Union Of course, this mere assertion on the part of
Respondent cannot be accepted at face value and must be examined in
light of all the circumstances surrounding the bargaining negotia-
tions If, for example, Respondent meant by its use of the phrase "to
remain competitive" that a wage increase would force it to raise its
prices over those of its competitors and hence result in a loss of busi-
ness, we would agree with the Trial Examiner that, in effect, Re-
spondent was pleading inability to pay However, we do not believe
such is the case here While it is true Respondent discussed with the
Union the cost of their wage proposals, we understand Respondent's
position to be essentially that it was unwilling to pay more in wages
and other economic benefits than was being paid by the operators of
other service stations in the surrounding area The fact that Re-
spondent operates the only service stations located on the West Vir-
ginia Turnpike, in a sense insulates it from competition in the sur-
rounding area However, regardless of the effect a wage increase
would have on its competitive position, the Respondent is legally
entitled to take the position that it will pay no more than the area wage
scale Without question in so doing it is engaging in hard bargaining,
but on the basis of the evidence before us, we are unable to conclude
that such bargaining was motivated by bad faith on behalf of the Re-
spondent Accordingly, we shall dismiss the complaint insofar as it
alleges a Section 8 (a) (5) violation based upon the incidents related
above3
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner, and orders
The General Counsel excepted to the Trial Examiner 's refusal to find , as alleged in
section 8 of the complaint , that the Respondent 's employees went on strike because of
Respondent 's unfair labor practices and that said strike has been prolonged by Respond
ent's continued unfair labor practices while we do not subscribe to the Trial Examiner's
reasoning that a finding as to the character of the strike would call for an advisory
opinion , we do find that the record here does not support the allegation either by direct
proof or reasonable inference Accordingly, we shall accept the Trial Examiner's dis
position of the allegation , but in so adopting , we base our determination upon the failure
of the General Counsel to establish that the strike in question was caused or prolonged
by the unfair labor practices of the Respondent
Also after the close of the hearing, the Union filed a motion requesting that the Board
order backpay and reinstatement for the striking employees In view of our finding, above
that the strike was not caused or prolonged by Respondent 's unfair labor practices, we
deny the motion
CHARLES E . HONAKER 1189
that the Respondent, Charles E. Honaker, his officers, agents; suc-
ccessors, and assigns, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, with the following modifications:4
(1) Delete section 1(c) and insert the following :
(c) Refusing or failing to bargain collectively with the Union
as the exclusive representative of all the employees in the ap-
propriate unit by unilaterally withdrawng contributions to the
insurance premiums of employees.
,(2) Delete section 2 (a) in Coto.
^(3) Delete section 2 (b) in to to.
(4) Modify section 2(c) by the addition of the following language:
... and maintain such contributions in effect unless and until
changed in compliance with the good-faith bargaining require-
ments of the Act.
* The notice is amended as follows : Modify the fourth indented paragraph by the addi-
tion of the following language : "and maintain such contributions in effect unless
.and until changed in compliance with the good-faith bargaining requirements of the Act."
Delete the sixth indented paragraph and substitute the following:
We WILL NOT refuse or fail to bargain collectively with the Union as the exclusive
representative of all the employees in the appropriate unit by unilaterally withdraw-
ing contributions to the insurance premiums of employees.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding is before a Trial Examiner of the National Labor Relations Board
upon an unfair labor practice complaint issued on August 6, 1963,1 by the General
-Counsel of the Board, through the Regional Director for the Ninth Region (Cincin-
nati, Ohio), against Charles E. Honaker. As amended at the hearing, the complaint,
based on a charge filed on June 21 by the above-captioned Local No. 175, the Charg-
ing Party, in substance alleges that Respondent committed unfair labor practices
forbidden by Section 8(a)(1) and (5), which affect commerce within the meaning
of Section 2(6) and (7) of the National Labor Relations Act. Respondent has
answered admitting some facts but putting in issue the unfair labor practices.
Pursuant to due notice, a hearing on the complaint was held before Trial Examiner
James V. Constantine from September 24 to 27, both inclusive, at Beckley, West
Virginia. All parties were represented at and participated in the hearing and had
full opportunity to introduce evidence, examine and cross-examine witnesses, submit
briefs, and offer oral argument. Briefs have been received from Respondent and
the General Counsel.
Upon the entire record in this case, including the stipulationLs of the parties, and
from my observation of the witnesses, I make the following:
Fn'miNos OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Honaker, a sole proprietor, operates service stations located at Morton,
Beckley, and Bluestone, on the West Virginia Turnpike. During the past calendar
year his sales exceeded $500,000. During the same period he purchased goods
and materials valued in excess of $50,000 from enterprises located in the State
of West Virginia, said enterprises having received the same directly from points
1 All events herein occurred in the year 1963 unless otherwise noted.
1190 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
.outside the State of West Virginia. I find that Respondent is an employer under
Section 2 (2) who is engaged in commerce within the contemplation of Section 2(6)
and (7) of the Act, and that it will effectuate the objectives of said. statute to assert
jurisdiction over him.
H. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers Local Union No. 175, affiliated with the In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union or Local 175, is a labor organization as defined
in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On January 30, a majority of Honker's employees in an appropriate unit desig-
nated Local 175 as their collective-bargaining agent, and on February 12 the Union
was certified as the exclusive bargaining agent of the employees in such unit. See
Case No. 9-RC-5217. The unit mentioned in the preceding sentence is composed
of all service station attendants of Honaker at his Beckley, Bluestone, and Morton
service stations located on the West Virginia Turnpike, excluding all office clerical
employees and all guards, professional employees, and supervisors as defined in the
Act. The facts in this paragraph are not in issue.
Many of the ensuing factual issues were controverted. Where disputes exist it
has been resolved in accordance with my evaluation of the credibility of the witnesses
and reasonable inferences drawn from the evidence. In ascertaining credibility I
have credited some witnesses in part only. But in general I have not narrated
evidence in connection with credibility determinations. Nevertheless, all evidence
has been considered; that consonant with the facts found herein has been credited,
and that inconsistent with such findings has been rejected. Cf. Trumball Asphalt
Co. of Delaware v. N.L.R.B., 314 F. 2d 382, 383 (C.A. 7).
A. Interference, restraint, and coercion
From January 11 to 22 Honaker was hospitalized. Employee Lester W. Simmons,
of the Bluestone station, visited Honaker at the hospital twice during that period.
On one of the visits Honaker requested Simmons to read a letter lying on the table?
After Simmons read it Honaker told him that he, Honaker, knew what was good
for the employees and if they went along with him she knew what could happen to
them, but if they did not go along with him but voted for the Union they might all
lose their jobs.
At different times after the election of January 30, mentioned above, Honaker
told Simmons that the employees had not listened to what Honaker had told them
and had gone against what he told them; that there would be no wage raises; and
that the employees would all probably lose their jobs. Continuing his conversation,
Honaker said that he would never sign a contract containing seniority or union-
shop clauses.
Honaker's employees in January and February were covered by a hospitalization
insurance plan issued by Pilot Life. Prior to 1963, according to Simmons, Honaker
contributed to the $13 monthly premium of Simmons by crediting him with $10 for
10 hours' overtime which in fact was ]ever performed, so that it became a $10 con-
tribution by Honaker toward the premium. Following the January 30 election this
$10 contribution was discontinued by Honaker in February without discussing it
with Simmons or the Union. It has not since been restored.
Employee Earnest Kyle also observed on the desk at the Beckley station the let-
ter, in evidence as General Counsel's Exhibit No. 3, at some time before the election
of January 30. Employees have access to this desk. Kyle also testified that his
hospitalization insurance premium of $10.92 was deducted from his wages, but that
such wages included $10 for overtime not performed; thus $10 was contributed by
Honker toward the premium and Honaker so advised him. This $10 was given
to him in January and February and was not discontinued until "we went on strike,"
according to Kyle. However, Kyle's payroll slips offered into evidence as General
2 Later In January Simmons saw lying on the top of Honaker's desk at the Bluestone
station a copy of the same letter which Honaker asked him to read at the hospital. This
is in evidence as General Counsel 's Exhibit No. 3.
CHARLES E. HONAKER ' 1191
Coun'sel's Exhibits Nos. 6 and 7 disclose that the $10 payments were eliminated in
the months of March and April .3
Employee John D. Legg also visited Honaker in' the hospital. While there
Honakerasked Legg to "go along with [Honaker] on the election," and added that he
thought that the employees would be better toff without the Union. After he got
out 'of the hospital, but before January 30, Honaker also stated that he did not think
that the employees would get a raise if the Union was voted in. Legg also saw
General Counsel's Exhibit No. 3 on Honaker's desk at Beckley just before the elec-
tion of January 30.
During the course of a conversation in January prior to the election, Honaker
told employee DeHart that if the employees "voted in" the Union Honaker "wouldn't
know what would happen to us, and there wouldn't be any wage increase" because
Honaker was "in control of the wages and vacations and everything." DeHart also
testified that beginning in December 1962 he was paid $10 each month for overtime
he did not work so that it could be deducted as a payment by the employer toward
his group hospitalization insurance premiums. This was later discontinued "after
the Union began organizing."
While Honaker was in the hospital in January, employee Stuart Williams called
on him. During their conversation, Honaker asked Williams to go along with him
and to vote against the Union because it would be to the best advantage of the em-
ployees. Honaker also said that if the employees organized there would be no wage
increase. After Honaker left the hospital he told Williams that he "didn't know
what the outcome would be if we organized." Williams was ,also a beneficiary of
the free $10 payment for overtime until February, when it was stopped. However,
on cross-examination Williams testified that when the $10 free overtime was dis-
continued as a separate item on his check stub, an additional $10 was added to his
regular pay.
Employee James Bragg was one of those who visited Honaker in the hospital.
Honaker told him that employees would be much better off not to vote the Union in.
Bragg also saw General Counsel's Exhibit No. 3 in January on a desk in the Beckley
station. During January Honaker asked Bragg as to how many were going to vote
for the Union .4 When Bragg replied that he did not know, Honaker stated that they
would be better off if they voted against it because "he did not think we would ever
get a contract signed."
In January Honaker told employee Donald Cooper that if they voted for the
Union and went out on strike they would automatically lose their jobs.
Employee Melvin Lively saw about five copies of General Counsel's Exhibit No. 3
on a*:desk at the Beckley station. At some undisclosed time in January Honaker told
him it would be best if he voted against the Union and that Honaker did not see
where the employees could gain anything by voting for the Union. On several oc-
casions Honaker told Lively that he, Honaker, would never sign a contract.
Lively was a beneficiary of the $10 free overtime as a contribution toward the
insurance premium until it was discontinued in February; and he has not since re-
ceived it.
B. The refusal to bargain
1. The bargaining negotiations
As found above, the Union was certified on February 12. Its first written proposal
was submitted to and received by Honaker on February 28. Thereafter the parties
met for the first negotiating session at the Beckley Hotel on March 11. Honaker
and his counsel, John Ray,s were Respondent's negotiators; Robert D. Jackson, the
s Kyle's evidence may be slightly confusing. On cross-examination 'he testified that "no
change [occurred] in the total amount of pay" which he received from November 1962'
until he went out on strike. (On cross he also stated that his base pay of $260 also in-
cluded overtime. But he must have misunderstood the question because General Counsel's
Exhibits Nos. 4 to 7 show that his 'base pay of $260 did not include the $10 for overtime.)
But General Counsel's Exhibits Nos. 4 and 5 show that be received $127.44 after deduc-
tions, whereas General Counsel's Exhibits Nos. 6 and 7 disclose $119.19 after deductions.
I find that his regular gross pay was $135 per half month at all times without overtime
and before deductions, as revealed by the foregoing four exhibits. (The $135 consists of
$130 for regular station work and $5 for carrying deposits to the bank.)
A I find that this interrogation is not coercive, and, therefore , permissible.
6 Honaker and Ray attended all future bargaining meetings.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's business representative, and some of Respondent's employees 6 comprised
the Union's bargaining committee. At this first meeting, which lasted about 31/2 to
4 hours, the parties discussed four pages of the Union's proposal. It was adjourned be-
cause Respondent refused to remain any longer.
Pursuant to agreement, a second bargaining session was held on March 14 at the
Beckley Hotel. It lasted about 31/2 to 4 hours. Discussion of the Union's written
proposals was resumed. As each clause was read Respondent stated that he would
consider it and pass judgment later; nothing was agreed upon except the recognition
clause. However, wages were not discussed at this meeting because the parties
agreed to postpone consideration thereof to a subsequent meeting. Nevertheless the
Union's wage proposal, which called for an increase in pay, was contained in the
document which had been submitted on February 28. At this meeting Honaker
promised to present his counterproposals at a later meeting and requested a 2-week
adjournment for that purpose.
A third meeting was held on March 28. It lasted but about 2 hours because
Honaker, who said he had prepared and brought with him his counterproposals, had
"some reservations" about them and did not present them. Hence there was nothing
to talk about. It was agreed that they would be submitted at the next session. A
meeting was then scheduled for April 4.
Although Jackson and Carter, president of Local 175, showed up for the April 4
meeting they were informed that it was postponed to April 11 because Ray was out
of town and could not attend.
The fourth meeting took place on April 11 at the Beckley Hotel. Honaker
presented a written document which he described as his counterproposals. However,
a number of subjects were identified by name and article number only without con-
taining any text relating to the substance of the matters 7 involved. In the discussions
which followed, Respondent (1) objected to the union-shop clause because it would
be "hazardous" to his position, and (2) agreed to a checkoff clause as to union dues
as worded in his counterproposal, asking the Union to write out a clause, which he
promised to study, covering checkoff of initiation fees and assessments for death
benefits.
A fifth meeting was held on April 19. For the first time Honaker presented his
complete counterproposals in writing. Discussion thereof followed. A union-shop
clause was rejected by Honaker, as was seniority based on length of service, and
also arbitration.8 As to wage rates, Honaker's counterproposal merely reiterated
rates existing at the time of the certification on February 12, without a premium for
overtime. Honaker insisted that no wage increase was warranted. At the close of
the meeting it was agreed that the Union would revise its proposals for Honaker's
consideration at the next meeting. On April 25 such revision was given to Respond-
ent, and is called herein the Union's second proposal.
On May 6 the parties met to discuss the Union's second proposal. After discussing
each article, the parties agreed on the recognition clause and the grievance procedure
preceding arbitration (Honaker still refusing to agree to arbitration unless he retained
an absolute right to determine whether the issue was arbitrable). Although the Union
modified its wage increase demands in its second proposal, Honaker categorically
refused to grant them. Honaker then requested about 3 weeks to prepare a wage
and working conditions survey of the service stations of other employers. Ac-
ceding to this, the Union then asked that the next meeting be scheduled for
May 28.
On May 28, wages were discussed extensively. In connection therewith, Honaker
presented the above-mentioned survey, which had been assembled, and insisted that,
by reason of its disclosures, there "was no call" for a wage increase to his employees.
Honaker by this date had agreed to the Union's proposals on checkoff and the giving
of notice preceding layoffs. He also at this meeting offered one paid holiday, whereas
the Union had asked for six.
As to the survey, Honaker pointed out that it did not include any stations whose
employees were covered by a collective-bargaining agreement, but refused to grant
the Union's request for the author of the survey. Honaker also refused the Union's
6 Jackson attended all future sessions except that of July 1 and August 19 (the last one).
7 These are wages, holidays, vacations, absence, loss or damage, payday, meal periods,
health and welfare, travel pay, and termination.
8 Honaker insisted that he have the unqualified right to decide whether an issue was
arbitrable.
CHARLES E. HONAKER 1193
request for information as to "the relation of wage increases as a cost factor" in the
selling price of his gasoline . When the Union asked for Honaker 's financial state-
ment or profit-and-loss statement, he declined . to give it because he claimed that
he never took the position that he could not afford to give a wage increase.
. At the close of the May 28 meeting, the Union had modified some of its proposals,
but Honaker had not yielded on wages or union shop . In the course of the negotia-
tions to date , Honaker never agreed on any items introduced by the Union at the
meetings , other than recognition , but always studied them and gave his views thereon
at a subsequent session . Honaker also insisted on adjourning most meeting at 5
or 6 p .m. over the Union 's protest . However , the May 28 meeting lasted till about
8 p.m. A strike was called on May 28. The General Counsel requests that I find it
to be an unfair labor practice strike . But in the absence of any allegation in the
complaint or the receipt of any evidence indicating that such strike is an issue in the
case, a finding as to its origin would amount to an advisory opinion . Accordingly,
this request is denied. Mrs. Fay's Pies, Inc., 145 NLRB 495, is distinguishable be-
cause there , unlike here , the right to reinstatement was dependent upon the nature
of the strike.
On June 4 the parties met again , but Honaker had not changed his position on
wages and union shop at all. His counterproposals submitted show this. On July 1
a meeting was held in the presence of a representative of the Federal Mediation and
Conciliation Service . Honaker's counterproposals of June 4 had been modified and
submitted at this July 1 meeting but they did not vary his original wage offer.
Two other meetings in the presence of the Federal Mediation and Conciliation
Service were held on July 11 and August 16. Thus a total of 11 negotiating sessions
was held.
In denying wage increases at many of the meetings , Honaker insisted on remain-
ing "competitive" with other stations , and that he could not be expected to pay higher
wages than his competitors.
C. Concluding findings
1. As to interference , restraint , and coercion
It is my opinion , and I find, that the letter admitted as General Counsel 's Exhibit
No. 3, while largely composed of expressions protected as free speech under Section
8(c) of the Act , also contains language which is coercive . The unlawful language
reads "Union officials and I will meet to negotiate a contract . Union will demand
increased wages and other changes which will increase operating costs. I will refuse
to increase wages or change the method of operating ." This is so because it an-
nounces a predetermination not to bargain on the subject of wages and the danger
and futility if the employees select the Union . Such pronouncements violate Section
8(a) (1). Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786.
Although I find that Respondent 's counsel prepared this letter as a guide to be
used in talking to employees by Honaker, I find that Honaker used it to "combat"
the Union prior to the election by showing it to some employees who visited him in
the hospital and in leaving it in a conspicuous place on his desk where employees
having access to his office could read it. I do not credit Respondent 's evidence that
this letter was not placed on the top of his desk or that it was not shown to employees
while Honaker was confined at the hospital.
Likewise coercive , and therefore violating Section 8 (a)(1), are (a) the statements
of Honaker to some employees that if they did not go along with him, but voted
for the Union , they would not receive a wage increase and they might lose their
jobs; (b ) Honaker's statement to employee Legg that he did not think the employees
would get a raise if he designated the Union ; (c) Respondent 's statement to employee
DeHart that if the employees selected the Union there would not be any wage in-
crease; (d) Honaker 's telling Bragg that he did not think the Union would even
obtain 'a contract ; and (e ) Honaker's insisting to employee Lively that he would
never sign a contract with the Union and that there would be no more overtime
pay.9
2. As to the refusal to bargain at negotiating sessions
Because Respondent and the Union agreed on many contract provisions, it is
not necessary to discuss the entire course of the negotiations ; only those items on
which the General Counsel contends Respondent manifested bad-faith bargaining
will be considered.
0 I am unable to credit Honaker's denial of these remarks.
1194 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
(a) No, refusal to bargain may be found in Counsel Ray's taking of extensive notes
at the meetings . While this may have retarded the progress of the meetings, I am
unable .to-find that it amounted to an unfair labor practice.
(b) Nor is it unlawful for Respondent to have insisted upon an arbitration clause
delegating to him the sole authority to -decide whether to consent to arbitration.
-While this may be characterized as hard bargaining, it does not contravene the
Act. Cf. Mayes Bros., Incorporated, 145 NLRB 181; Peerless Distributing Com-
pany, 144 NLRB 1510.
(c) Likewise , I am unable to find a violation in Honaker's failure to meet with
the Union during the week of September 9. While Honaker did state that he would
review his studies and would notify Commissioner Steele to schedule another meeting
if he could offer a wage rate, he also stated that he did not agree to meet unless he
intended to increase wages. I do not credit the General Counsel's evidence that
Honaker definitely promised to call the Union as to when he would meet with it
during that week.
(d) However, I do find that Respondent failed to bargain in good faith with respect
to those matters narrated in this subparagraph (d). I find as facts the incidents nar-
rated therein.
In the first place meetings were of short duration. Respondent, with few excep-
tions, refused to remain in session more than a few hours each time. Moreover,
long delays occurred between meetings. Thus, at least one session was canceled
because Respondent's counsel was out of town, and two others were delayed for a
week or more while Respondent conducted various surveys. Then, again, Respond-
ent at most of the sessions refused to state his position on union proposals but asked
for time to study them until the next meeting between the parties. The delays de-
scribed in this paragraph, while perhaps individually innocuous, collectively denote
bad-faith bargaining especially when reviewed against a setting of other unfair
labor practices and of union hostility which have been found elsewhere in this
Decision.'°
In the second place, Respondent was not reasonably prompt or cooperative in
submitting its counterproposals to the Union. In fact, one counterproposal was
incomplete as to several provisions. Another one was withdrawn just before tender
of it was due because Respondent had some "reservations" about it, although a few
weeks were taken to prepare it. Cf. I. R. Simplot Company, supra.
In the third place, Respondent repeatedly contended that it could not grant a
wage increase-the main, but not only, obstacle to reaching an agreement-because
he wanted to remain competitive, while at the same time he vigorously protested
that he was not denying the increase because of financial inability to pay. Thus
Respondent took inconsistent positions and his argument is self-contradictory. A
contention that an employer desires to remain competitive-which Respondent con-
cededly repeatedly stressed at the meetings-and thereby refuses to grant an increase,
constitutes an assertion of "financial inability to grant economic benefits." Peerless
Distributing Company, 144 NLRB 1510. In fact Respondent introduced evidence
that the increase would cost him about $50,000 a year additional. Since I find that
Respondent in effect pleaded financial inability to pay, I further find that he was
under an obligation to comply with the Union's demand to furnish evidence of this
and that his refusal to do so also contravenes Section 8(a) (5). N.L.R.B. v. Truitt
Mfg. Co., 351 U.S. 149; Peerless Distributing Company, supra. However, the mere
refusal to grant a wage increase is not unlawful. Sunbeam Plastics Corporation,
144 NLRB 1010, does not require a contrary result.
3. The unilateral withdrawal of contributions to insurance premiums
As recited above, Honaker had been making contributions to the insurance
premiums of employees by crediting them with overtime which was not actually
performed. After the Union was selected by the employees as their exclusive repre-
sentative, Respondent abolished these contributions without consulting with or
notifying the Union. This violates Section 8(a)(5). N.L.R.B. v. Crompton-High-
land Mills, 337 U.S. 217. It also is coercive under Section 8(a)(1) of the Act.
Peerless Distributing Company, 144 NLRB 1510.
10 Totality of conduct may be appraised in concluding that Section 8(a) (5) has been
breached. J. It. Simplot Company, 145 NLRB 171 ; Insulating Fabricators, Inc., Southern
Division, 144 NLRB 1325, discloses that failing to meet with a union at reasonable times
and confer with an open mind manifests bad faith. Cf. United States Gypsum Company,
143 NLRB 1122. N.L.R.B. v. United Clay Mines Corporation, 219 F. 2d 120 (C.A. 6),
relied on by Respondent , is distinguishable.
CHARLES E. HONAKER 1195
IV. THE* EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Those activities of the Respondent "found to constitute unfair labor practices as set
forth in section III, above, occurring in connection with the operations of the Re-
spondent as set forth in section I, above, have a close, intimate, and substantial rela-
tion 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 Respondent has engaged in specific unfair labor practices pro-
hibited by Section 8(a) (1) and (5) of the Act, it will be recommended that he be
ordered to cease and desist therefrom and that he take certain affirmative action
designed to effectuate the policies of the Act. In view of the finding that Re-
spondent unilaterally discontinued his contributions toward insurance premiums the
Reoommended Order will require.Respondent to resume such contributions and also
to reimburse employees for contributions lost with interest at 6 percent as ascer-
tained by the formula described in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Sections 2(5) and 8(a)
of the Act.
2. Respondent is an employer within the meaning of Sections 2(2) and 8(a)
and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
3. By engaging in the conduct described in section III, above, Respondent has
engaged in unfair labor practices proscribed by Section 8 (a) (1) of the, Act.
4. All service station attendants employed by Respondent at his Beckley, Blue-
stone, and Morton service stations, located on the West Virginia Turnpike, excluding
all office clerical employees and all guards, professional employees, and supervisors
as defined in the Act, constitute a unit appropriate for purposes of collective bargain-
ing within the meaning of Sections 8(a) (5) and 9 of the Act.
5. By refusing to bargain in good faith with the Union, Respondent has engaged
in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondent has not engaged in any other unfair labor practices as alleged in
the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record, it is recommended that Respondent, Charles E. Honaker, his
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with a denial of wage increases and overtime if the
Union became their majority representative.
(b) Telling employees he would never sign a contract with the Union.
(c) Refusing to bargain collectively in good faith with the Union as the exclusive
representative of all the employees in the aforesaid appropriate unit, among other
things, by having a firm and fixed determination not to grant a wage increase, by
refusing to comply with the Union's request that he furnish it with evidence of
financial inability in connection with his desire to remain competitive if he granted
a wage increase, and by unilaterally withdrawing contributions to the insurance
premiums of employees.
(d) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following action designed to effectuate the policies of the Act:
(a) Upon request, meet with reasonable promptness and at reasonable frequency,
and bargain collectively with the Union as the exclusive representative of all the
employees in the aforesaid appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Upon request, furnish to the Union information relative to Respondent's con-
tention that an increase in wages will render him unable to remain competitive.
(c) Reimburse, with interest at the rate of 6 percent per annum, employees for
past contributions to insurance premiums withdrawn by Respondent. and restore said
contributions as to future premiums.
.1196 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
(d) Post at its service stations in Beckley , Bluestone, and Morton, West Virginia,.
copies of the attached notice marked "Appendix." 11 Copies of said notice, to be.
furnished by the Regional Director for the Ninth Region, shall, upon being signed
by Respondent or his agent thereunto duly authorized, be posted by him immedi-
ately upon receipt thereof, and be maintained by him for 60 consecutive days there-
after, 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 the Ninth Region, in writing, within 20 days.
from the date of receipt of this Recommended Order,12 what steps Respondent has.
taken to comply herewith.
It is further recommended that unless Respondent, in writing, notifies said Re-
gional Director within the time aforesaid that he will comply with the foregoing
Recommended Order, the National Labor Relations Board issue an order requiring
it to take such action.
It is further recommended that the remaining allegations of the complaint be
dismissed.
n If 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 this 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."
12 If 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 Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT threaten to deny a wage increase if Chauffeurs, Teamsters and
Helpers Local Union No. 175, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is selected by
our employees as their collective-bargaining agent.
WE WILL NOT threaten our employees that we will refuse to sign a contract
with the above-named labor organization.
WE WILL NOT withdraw our contributions to the insurance premiums of our
employees.
WE WILL resume our contributions to the insurance premiums of our em-
ployees and will reimburse employees for past contributions withdrawn.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in rights guaranteed to them under Section 7 of the Act.
WE WILL bargain collectively with the above-named labor organization, as.
the representative of all the employees in the bargaining unit described below
with respect to rates of pay, wages, hours of employment, and other conditions
of employment, and, if an understanding is reached, embody such an under-
standing in a signed agreement.
The bargaining unit is:
All service station attendants employed by me at the Beckley, Bluestone,
and Morton service stations, located on the West Virginia Turnpike, ex-
cluding all office clerical employees and all guards, professional employees,,
and supervisors as defined in the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members in good standing of said Local No. 175, or any other labor
organization.
CHARLES E. HONAKER,
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.
POINSETT LUMBER AND MANUFACTURING COMPANY 1197
Employees may communicate directly with the Board's Regional Office , Transit
Building, Fourth and Vine Streets, Cincinnati , Ohio, Telephone No. 381-1420, if
they have any question concerning this notice or compliance with its provisions.
Poinsett Lumber and Manufacturing Company and Lee Bowman
and International Union of Electrical , Radio and Machine
Workers, AFL-CIO. Cases Nos. 11-CA-2087 and 11-CA-2099.
June 30, 1964
DECISION AND ORDER
On February 28, 1964, Trial Examiner C. W. Whittemore issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent 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 Decision.
Thereafter, the Respondent filed exceptions to the Decision and a
:supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Jenkins].
After careful examination of the record, we find no merit in the
Respondent's contention that the Trial Examiner was biased and
prejudiced. Accordingly, the Respondent's request for oral argument,
which is grounded solely on the alleged bias and prejudice of the
Trial Examiner, is hereby denied.
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 Decision,
the exceptions and brief, and the entire record in this case, and finds
-merit in the Respondent's exceptions.
The Trial Examiner found that the Respondent violated Section
:8 (a) (1) by discharging a supervisor, Bowman, for refusal to engage
in conduct violative of Section 8 (a) (1). He also found that Re-
spondent violated Section 8(a) (3) by discharging employees Looney,
Burriss, Campbell, and Patterson, and by transferring Fulghum and
Deanhardt. The Trial Examiner included in his Recommended
Order a provision that Respondent cease and desist from interrogat-
ing its employees . Although he made no specific 8 (a) (1) finding,
this recommendation is apparently based on alleged interrogation of
Burris by Supervisor Brissey, while the two were drinking together
in a bar.
The testimony of Respondent's former supervisor, Bowman, is the
key to the case. The Trial Examiner credited Bowman's testimony
147 NLRB No. 153.