United States Cold Storage Corp.

National Labor Relations Board - Board Decisions

Oct 29, 1951

96 N.L.R.B. 1108 (N.L.R.B. 1951)

1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNITED STATES COLD STORAGE CORPORATION and STATIONARY ENGI-
NEERS, LOCAL 707, INTERNATIONAL UNION OF OPERATING ENGINEERS,
AFL. Case No. 16-CA-&53. October 09,1951
Decision and Order
On February 20, 1951, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel for the National Labor Relations
Board filed exceptions to the Intermediate Report and a support-
ing brief.
The Board has reviewed rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed.' The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in the
case , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the additions and modifications
hereinafter set forth.
1. The Trial Examiner found that the evidence does not show that
the Respondent failed to bargain collectively in good faith with the
Union. While we agree with this finding as it relates to the Re-
spondent's bargaining efforts during the period preceding the strike,
we are of the opinion that the Respondent, by its officers' failure after
the strike began to meet personally with the Union, fell short of per-
forming its obligations under Section 8 (a) (5) of the Act.
As fully detailed in the Intermediate Report, the Union and the
Respondent exchanged a series of letters during the strike. Starting
with its letter of May 1, 1950, the Union repeatedly expressed its
willingness and desire to meet with the Respondent.' The Respond-
ent ignored the Union's initial requests, but then on June 19 specifi-
cally declined to meet on the ground that an impasse had been reached.
The Respondent made no reply to the final request made in the Union's
June 20 letter, the last communication between the parties.
It is elementary that collective bargaining is most effectively car-
ried out by personal meetings and conferences of parties at the
bargaining table. Indeed, the Act imposes this duty to meet .2 The
duty to meet of course does not mean that parties must engage in
I May 1, 1950 ; May 30 , 1950; June 2, 1950; and June 20, 1950.
S Section 8 (d) of the Act reads in part : " to bargain collectively is the performance
of the mutual obligation of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with respect to wages, hours, and
ether terms and conditions of employment. .. .
96 NLRB No. 176.
UNITEDi STATES COLD STORAGE CORPORATION 1109
futile bargaining in the face of a genuine impasse. Here, however,
even assuming the existence of an impasse before the strike, that im-
passe was broken by the strike for, as the Board has said, what seemed
a rigidity of bargaining positions before strike action, afterward
might very well have become a model of flexible compromise.3 More-
over, in point is the observation of the Court of Appeals for the First
Circuit that "If in the presence of a strike an employer could avoid
the obligation to bargain by declaring further efforts to be useless,
the Act would largely fail of its purposes." 4 Accordingly, we find
that the Respondent, by refusing to meet with the Union during the
strike, violated Section 8 (a) (5) of the Act.
2. As we agree with the Trial Examiner's conclusion that the Re-
spondent bargained in good faith before the strike, we accept his
finding'that the strike which began on April 5, 1950, was economic in
its inception. However, we do not agree with his further finding
that the Respondent did not violate the Act by sending a telegram to
each of the striking employees on the second day of the strike. The
April 6 telegram is as follows:
We consider the strike illegal since at no time did the Company
refuse to bargin. Under the circumstances we would like you to
report back to your regular job within 24 hours after receiving
this telegram on your regular shift time. If you do not report,
we will consider that you are terminating your employment and
a replacement will be hired.
The Trial Examiner reasoned that because the strike was economic
in its inception, the Respondent had the right to advise the strikers
that it intended to replace them if they did not return to work within
24 hours.-' The Trial Examiner was of the opinion that the telegram
did no more than this and that the Respondent was therefore merely
restating the law.
The telegram, however, did not accurately restate the laws In the
first place, the telegram characterized the strike as "illegal." This
was certainly incorrect. But more important, the telegram states
that if the individual striker does not report to his job within 24 hours,
"we will consider that you are terminating your employment and a
replacement will be hired." Failure to work during the pendency of
a strike cannot be construed as a termination of employment. With-
out notice of severance on the part of the striking employee, a ter-
mination can be effected in these circumstances only by the Respond-
ent. Hence, conditioning the termination of the strikers upon their
3 Boeing Airplane Company, 80 NLRB 447, 454
4 N. L R B. v. Reed & Prince Manufacturing Company, 118 F. 2d 874, 885 , cert. den.
313 U S 595.
5 N. L R B v. Mackay Radio & Telegraph Co., 304 U. S. 333.
6 Cf. The Texas Company, 93 NLRB 1358.
974176-52-vol. 96-71
1110 DECISIONS OF NATIONAL LABOR RET.ATIONS BOARD
failure to act at the Respondent's request, stands as a specious at-
tempt to shift the responsibility of termination from the Respondent
to the striking employees. The telegram appears to us to be a notice
of discharge to the employees because of their concerted strike ac-
tivity. That the telegram did effect the discharges of the striking
employees on April 7, 1950, is amply substantiated by the Respond-
ent's letter of April 24 addressed to each of the strikers. The per-
tinent part of that letter reads as follows :
On April 6, we, notified you by telegram to return to work
within 24 hours, from the receipt of the message or we would
terminate the employment. You did not return to work; and
consequently we consider you are no longer employees Of this
Company. [Emphasis supplied.]
It is clear from this letter not only that the Respondent intended to
terminate the strikers' employment as per the April 6 telegram, but
also that the Respondent did in fact terminate their employment.
Additional support for this conclusion is found in the testimony of
R. P. MacKenzie, vice president and manager of the Respondent, who
personally dispatched the telegrams. The following colloquies be-
tween the General Counsel and MacKenzie are illustrative:
GENERAL COUNSEL. Then, are we to understand that at the
termination of 24 hours after the receipt of the telegram by the
seven employees, and if they did not report to work their employ-
ment would be terminated as of that time?
MACKENZIE. I consider that they would be terminating it, yes.
GENERAL COUNSEL. So we can say that their employment, then,
was terminated approximately 24 hours after 6: 30 p. m. April 6,
1950?
MACKENZID. Correct.
And on another occasion :
GENERAL CouNsm. Now, Mr. MacKenzie, when the employees
were discharged or their employment terminated by that telegram
on April 6, and their subsequent conduct, their employment was
so terminated because of their refusal to return to work and
abandon the strike they were on; is that not correct?
MACKENZIE. I consider they terminated their own employ-
ment by not returning and running the plant for us.
The sum total of this testimony is that as a result of the telegrams the
strikers' employment was effectively terminated 24 hours after the
dispatch of the telegrams.
The Respondent nevertheless relies on its letter of May 8, 1950, as
evidence that the April 6 telegram did not effect the discharge of the
strikers. In that letter, sent to the Union, the Respondent states that
there had been "no discrimination" against the strikers "on account
UNITED; STATES COLD STORAGE CORPORATION 1111
of any union activity," and that the strikers had "not been locked out"
but that they had voluntarily left their jobs. We perceive no unequiv-
ocal denial of discharge in this letter. But even if we assume that
the letter does contain such a denial, the evidentiary weight to be
attached to the denial must be evaluated in the context of surrounding
circumstances. As we have already seen, the Respondent's previous
letter of April 24, only a fortnight earlier, contained a contrasting
admission of termination. Any change of position can be attributed,
we believe, to an intervening communication from the Union to the
Respondent. By letter dated May 1, 1950, the Union informed the
Respondent that the termination of the employees, as admitted by
the Respondent in the April 24 letter, was discriminatory and a viola-
tion of Section 8 (a) (3) of the Act, and that the Union had filed with
the Board a charge alleging such unlawful discrimination. A self-
serving denial of discrimination in the face of this accusation cannot
in our opinion negate the earlier freely made admission of termina-
tion for concerted activity. Nor could it achieve persuasiveness in
view of MacKenzie's testimony, given some 7 months later at the
hearing, which supports the finding that the strikers were terminated
because of their strike activity. Accordingly, we find that the em-
ployees' strike constituted protected concerted activity under the Act
and that the discharge of these employees by the April 6 telegram
constituted interference, restraint, and coercion within the meaning
of Section 8 (a) (1) of the Act.7
The complaint alleges that on or about May 8, 1950, the Respondent
in violation of Section 8 (a) (3) refused to reinstate the strikers to
their jobs. The General Counsel contends that - this allegation is
supported by an unconditional request for reinstatement made by the
Union on behalf of the strikers on May 1, 1950. The alleged request
is contained in a letter to the Respondent devoted mainly to protesting
the Respondent's severance of the strikers and the termination of their
insurance benefits. Hence, the Union's statement therein that "We
insist that these employees be granted the same insurance and other
benefits granted your other employees" was a plea for restoration to
the strikers of the employee benefits which the Union contended should
not be interrupted by the strike. The statement cannot therefore
reasonably be construed as an unconditional request for reinstatement
or as an abandonment of the strike, for in the same letter the Union
notified the Respondent of its decision to intensify its strike activities.
Accordingly, we shall dismiss so much of the complaint as alleges that
the Respondent discriminated against the strikers in violation of
Section 8 (a) (3) of the Act by refusing to reinstate them upon request
on May 8, 1950.
'For reasons hereinafter appearing, no Section 8 (a) (3) finding based on this con-
duct is made.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Effect of the Unfair Labor Practices upon Commerce
The activities of the Respondent, set forth above, occurring in con-
nection with the operations described in section 1 of the Intermediate
Report, have a close, intimate, and substantial relation to trade, traffic,
and commerce and the free flow of commerce.
The Remedy
Having found that the Respondent has engaged in the unfair labor
practices set forth above, we will recommend that the Respondent
cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
We have found that the Respondent violated Section 8 (a) (1) of
the Act by discharging the strikers. Although such discharge would
also constitute discrimination in regard to hire or tenure of employ-
ment within the meaning of Section 8 (a) (3) of the Act, such was
not clearly alleged in the complaint. Whether the Respondent's con-
duct is deemed to be a violation of Section 8 (a) (1) or 8 (a) (3),
we find that the effectuation of the policies of the Act requires that
the strikers be offered immediate reinstatement with back pay.8
Because they continued on strike after they were discharged, the
discharged strikers are entitled to back pay only from the date when
they have indicated their desire to return to work under the conditions
existent at the beginning of the strike by abandoning the strike or
otherwise, rather than from the date of their discriminatory dis-
charges, on the theory that the loss of wages could not conclusively
be attributed to the discharges until the strikers had indicated their
willingness to return to work.9 There is no evidence in the record that,
up to the dates of the hearing in this matter, the afore-mentioned con-
ditions for an award of back pay were present. We cannot construe
the strikers' abandonment of the picket line, without more, as tanta-
mount to a desire to return to work. The record is necessarily devoid
of evidence that the strike has been otherwise abandoned after the dates
of the hearing.
We shall therefore order that the Respondent offer the strikers
immediate reinstatement to their old or substantially equivalent jobs 10
without loss of seniority or other rights and privileges, dismissing, if
necessary to provide employment for the discharged strikers, any
employees hired after April 7, 1950. We shall also order that the
Respondent make whole the, strikers for any loss of pay suffered by
8 The Sandy Hill Iron & Brass Works, 55 NLRB 1, Kallaher and Mee, Inc , 87 NLRB 410.
9Massey Gin and Machine Works, 78 NLRB 189, 203 , see Kallaher and Mee, Inc, supra,
and Globe Wireless , Ltd, 88 NLRB 1262.
10 The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch,
65 NLRB. 827.
UNITED, STATES COLD STORAGE CORPORATION 1113
them by paying to each of them the sums of money equal to that which
each normally would have earned from the date of the abandonment
of the strike to the date of the Respondent's offer of reinstatement,
less their net earnings during said periodl1 However, as we are
reversing the Trial Examiner's dismissal of those portions of the
complaint alleging that the Respondent unlawfully discriminated
against its employees, we shall in accordance with our usual practice
in such circumstances, exclude from back pay the period between the
date of the Intermediate Report and our Order herein.
We shall also order that the Respondent, upon reasonable request,
make available to the Board and its agents all payroll and other rec-
ords, pertinent to an analysis of the amount due as back pay.
As we have found that the Respondent has violated Section 8 (a)
(5) of the Act by refusing to meet with the Union during the strike,
we shall order that the Respondent, upon request, meet and bargain
collectively with the Union.
Since the violations of the Act-which the Respondent committed are
persuasively related to other unfair labor practices prescribed by the
Act, and the danger of their commission in the future is to be antici-
pated from the Respondent's conduct in the past, the preventive pur-
poses of the Act will be thwarted unless the order is coextensive with
the threat. In order, therefore, to make more effective the interde-
pendent guarantees of Section 7, to prevent a recurrence of unfair labor
practices, and thereby minimize industrial strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, we
shall order that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed in Section 7 of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, United States Cold Storage
Corporation, its agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interfering with, restraining, and coercing any of its employees
by discharging its employees for engaging in protected concerted
activity under the Act, or by discriminating in any manner in regard
to their hire or tenure of employment or any other term or condition
"Crossett Lumber Company, 8 NLRB 440. The losses of pay shall be computed on
the basis of each separate calendar quarter or portion thereof during the period from
the Respondent's discriminatory action to the date of a proper offer of reinstatement
The quarterly periods shall begin with the first day of January, April, July, and October
Loss of pay shall be determined by deducting from a sum equal to that which they
would normally have earned for each such quarter or portion thereof, their net earnings,
if any, in any other employment during that period Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter. F. W. Woolworth
Company, 90 NLRB 289.
1114 DECISIONS OF NATIONAL LABOR` RELATIONS BOARD
of employment, except to the extent permitted by the proviso to Sec-
tion 8 (a) (3) of the amended Act.
(b) Refusing, upon request, to bargain collectively with Stationary
Engineers, Local 707, International Union of Operating Engineers,
AFL, as the exclusive representative of all its employees in the fol-
lowing appropriate unit :
All employees in the engineering department of its Dallas, Texas,
plant, excluding all clerical and professional employees, guards, and
supervisors as defined in the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Stationary Engineers, Local 707,
International Union of Operating Engineers, AFL, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection or to refrain
from any or all of such activities except to the extent that such right
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.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Flavius E. Malone, Orsby Burnson, J. W. Driver,
James H. Harrison, Claude Barksdale, Billie E. Spicer, and H. G.
Murry, immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority or other
rights and privileges and make them whole for any loss of pay they
may have suffered by reason of Respondent's discrimination against
them, in the manner set forth in the section of this Decision and Order
entitled."The Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due and the right of
reinstatement under.the terms of this Order.
(c) Upon request, bargain collectively with Stationary Engineers,
Local 707, International Union of Operating Engineers, AFL, as the
exclusive representative of all the employees in the above-described
unit, with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
(d) Post in conspicuous places, at its Dallas, Texas, plant, copies
of the notice hereto attached marked "Appendix A." 12 Copies of said
12 If this Order is enforced by a decree of a United States Court of Appeals, there
shall be inserted before the words, "A Decision and Order ," the words, "A Decree of
the United States Court of Appeals Enforcing."
UNITED STATES COLD STORAGE CORPORATION 1115
notice, to be furnished by the Regional Director for the Sixteenth
Region, after being signed by the Respondent's representative, shall
be posted immediately by the Respondent upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER MuRDocK took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in STATIONARY ENGI-
NEERS, LOCAL 707, INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, AFL, or in any other labor organization, by discrimina-
torily discharging any of our employees, or by discriminating in
any other manner in regard to their hire or tenure of employ-
ment or any terms or conditions of employment, except to the
extent permitted by the proviso to Section 8 (a) (3) of the
amended Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights of self-organi-
zation, to join or assist STATIONARY ENGINEERS, LOCAL 707,
INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, or to engage in mutual aid or
protection or to refrain from any or all of such activities, except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
WE WILL offer Flavius E. Malone, Orsby Brunson, J. W. Driver,
James H. Harrison, Claude Barksdale, Billie E. Spicer, and H. G.
Murry, immediate and full reinstatement to their former or sub-
stantially equivalent position without prejudice to any seniority or
other rights and privileges previously enjoyed, and make them
whole for any loss of pay suffered as a result of our discrimination
against them.
1116' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively , upon request , with the above-
named union as the exclusive representative of all our employees
in the bargaining unit described herein with respect to rates of
pay, hours of employment , or other conditions of employment.
The bargaining unit is:
All employees in the engineering department excluding
clerical and professional employees , guards, and supervisors.
All our employees are free to become, remain , or refrain from be -
coming members of the above -named union , or any other labor organi-
zation, except to the extent that such right may be affected by a lawful
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the National
Labor Relations Act. We will not discriminate agaisnt any employee
in regard to the hire or tenure of employment or. any term or condition
of employment because of membership iii or activity on behalf of any
such labor organization.
UNITED STATES COLD STORAGE CORPORATION,
Employer.
By ----------------------------------------
Dated ------------ -------- ( Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed April 10, 1950, and an amended charge filed May 1, 1950,
by Stationary Engineers, Local 707, International Union of Operating Engineers,
AFL, herein called the Union, the General Counsel for the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for the Sixteenth
Region of the Board (Fort Worth, Texas), issued a complaint against United
States Cold Storage Corporation, herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of
the National Labor Relations Act, as amended, 61 Stat 136, herein called the
Act. Copies of the charge and the amended charge were duly served on the
Respondent. On September 29, 1950, a copy of the complaint and a notice of
hearing were served on the Respondent and the Union.
With respect to the unfair labor practices the complaint alleged in sub-
stance : (1) That on January 13, 1950, and at all times thereafter the Respondent
refused to bargain collectively with the Union as the exclusive representative
of certain of its employees within an appropriate unit, although the Union was
the duly certified representative of such employees; (2) that the Respondent
granted a pay raise to an employee in the appropriate unit without first informing
or consulting with the Union; (3) that the Respondent sent telegrams to striking
employees informing them that if they did not return to work within a certain
time they would be replaced; (4) that the Respondent wrote to striking em-
ployees, in substance canceling their insurance benefits; (5) that the Respondent
UNITED STATES COLD STORAGE CORPORATION 1117
interrogated, threatened, and warned its employees concerning their union activi-
ties and kept union meetings under surveillance; (6) that the Respondent refused
and continues to refuse reinstatement to striking employees who applied therefor ;
and (7) that all of the above conduct is violative of the Act.
On November 9, 1950, the Respondent filed an answer in which it denied that
it had engaged in any of the unfair labor practices alleged in the complaint, and
denied that the unit alleged as appropriate was so in fact.
Pursuant to notice a hearing was held at Dallas, Texas, November 28-30 and
December 1, 1950, before Louis Plost, the undersigned duly appointed Trial
Examiner.
The General Counsel, the Respondent, and the Union were all represented at
the hearing, their representatives, hereafter referred to in the names of their
principals, participated and were afforded full opportunity to examine and cross-
examine witnesses, introduce evidence bearing on the issues, argue orally on the
record, and file briefs and/or proposed findings of fact and conclusions of law
with the undersigned.
At the opening of the hearing the undersigned granted a motion by the
Respondent to separate the witnesses. At the close of the evidence the Respond-
ent moved to dismiss the complaint. The motion was denied. Likewise, at the
close of the evidence the undersigned granted, without objection, a motion by the
General Counsel to conform all the pleadings to the proof with respect to minor
variances such as to names, dates, spelling, and the like. The parties waived
oral argument. A brief has been received from the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The parties entered into the following stipulation :
It is stipulated by and between the parties to this proceeding that the
United States Cold Storage Corporation, a Delaware corporation, maintains
plants located at various points in the United States and is engaged, at its
warehousing and processing plant in Dallas, Texas, in the processing,
packing and storing of perishable foods for its customers ; that during the
twelve-month period commencing from September 1948 to September 1949,
the company received for its services approximately $300,000.00, and during
the same period twenty-five to fifty per cent of the food products received
at the Dallas plant represented shipments from points located outside the
State of Texas, and during the same period approximately sixty per cent
of the food products shipped out from the Dallas plant represented shipments
to points located outside the State of Texas. The United States Corporation
is the same concern as the U. S. Cold Storage Company in the representation
case before the NLRB, 16-RC-421, with this one difference, the company
having changed its name from the United States Cold Storage Company to
United States Cold Storage Corporation in the interval between the holding
of the aforementioned representation case and the date of this hearing.
* * * *
It is further stipulated that the company's business is substantially the
same at this time as of the time of the representation hearing.
The Respondent concedes that it is engaged in commerce within the meaning
of the Act.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
Stationary Engineers , Local 707 , International Union of Operating Engineers,
AFL, is a labor organization which admits employees of the Respondent to
membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain collectively
.1. The appropriate unit and the representation by the Union of a majority
therein
Pursuant to the provisions of a Decision and Direction of Election of the
Board, an election was conducted by the Board's Sixteenth Regional Office on
November 10, 1949, among an appropriate unit of the Respondent 's employees
defined as:
All employees in the engineering department of the Employer's [Respond-
ent's ] Dallas, Texas , plant, excluding all clerical and professional employees
guards and supervisors as defined in the Act.
Thereafter the Board on December 14, 1949, certified the Union as the bargaining
agent for the employees in the above-described unit.
The undersigned finds that at all times material herein the Union was the
duly designated representative of the Respondent 's employees in the afore-
mentioned appropriate unit.
2. The negotiations for a contract
R. T. Mackenzie , vice president and manager of the Respondent , testified that
early in January 1950 he received a telephone call from John W. Pollard, the
business representative of the Union, who asked for a meeting on January 9; on
that day Mackenzie met with Pollard and other representatives of the Union, the
parties agreeing to meet again on January 11, at which time the Union would
present a proposed contract ; on January 11, the meeting agreed upon was had,
the Union presented a contract which , according to Mackenzie , was discussed
through all its paragraphs ; Mackenzie testified in detail with respect to the
discussion , and further that at the conclusion of the January 11 discussion the
parties agreed that the appropriate unit was composed of two classifications of
employees , to wit , operating engineers and maintenance -men trainees , and had
also reached an agreement on every clause of the proposed agreement , either
by accepting, changing , or dropping the clause , except that no agreement had
been reached with respect to vacations , seniority, and wages.
The meeting closed with a request by Pollard that the Respondent draw and
submit a contract for the next discussion.
On January 11, as well as all subsequent meetings , Pollard was one of the
Union's representatives and its principal negotiator . Mackenzie represented
the Respondent at all meetings.
In accord with Pollard 's request made at the close of the January 11 meeting,
the Respondent drew a proposed contract which Mackenzie delivered to Pollard
on January 13; the parties meeting again on January 17, at which time, according
to Mackenzie , the entire contract was discussed in all its particulars. Between
January 17 and March 10 the parties met for negotiation on at least four different
occasions . Sometime prior to February 7, Pollard again asked that the Respond-
ent draw up another contract . The Respondent did so and submitted it on
February 7. Also the Union suggested certain changes particularly an arbitra-
tion clause and a seniority -clause which it submitted in writing and which were
discussed.
UNITED, STATES COLD STORAGE CORPORATION 1119
Mackenzie testified that at the close of the March 10 meeting of the parties :
Well, that-before that meeting was over, I thought we were in pretty
good accord. We had things pretty well worked out with the exception of
that seniority' provision and wages provision. I believe that we had just
about agreed. We were agreed on the arbitration contract at that time, we
did, after that meeting of the 10th.
On March 13, Mackenzie and Pollard met for "about half an hour" but "didn't
talk very much." On the following day, by phone, a meeting was arranged for
March 16. The meeting was had and according to Mackenzie : "We got a lot of
matters agreed to. It was a very satisfactory meeting."
The following morning Mackenzie received a telephone call from the U. S.
• Conciliation Service and was told that Pollard had informed the Conciliation
Service "that we couldn't come to an agreement." Mackenzie refused to meet
with a conciliator present. On Saturday, March 18, Pollard phoned Mackenzie
and asked for a meeting for March 21. Mackenzie told Pollard he had a previous
out-of-town engagement, the parties therefore met on March 20, apparently
merely to arrange a suitable date. Pollard suggested March 22, Mackenzie
March 21, as he intended to be out of the city on March 21, however, it was
agreed that Pollard telephone the Respondent on March 22, in the event Mac-
kenzie's business trip was canceled the meeting could then take place. However,
Mackenzie left for Houston, Texas, the night of March 21. On March 22, Mac-
kenzie was informed at Houston, by a phone call from his office, that "several
men from the union had come in and said they had a definite appointment.... "
He then received a second call and was told that a telegram had been received
from the Union. He asked that it be transferred to him at Houston. The tele-
gram arrived, Mackenzie answered it.
The telegram read as follows :
TELEGRAM
March 22, 1950
12: 10 p.m.
United States Cold Storage, Inc.
Santa Fe Building
1114 Wood Street
Dallas, Texas.
Regret your failure to keep appointment for bargaining conference yes-
terday. Your office advises you are not yet available. We have patiently
attempted to bargain for many months and you have' refused our reason-
able demands. In view of your refusal to grant our reasonable requests
with respect to wages, working conditions and arbitration procedures, em-
ployees intend strike and any other lawful action to obtain reasonable wages
and conditions. Please phone me at Winfield 1380 if you are willing to
make any concessions on the matters at issue.
Local Union No. 707
International Union of
Operating Engineers
By, J. W. Pollard
Mackenzie's reply was :
J. W. POLLARD
Local Union 707, International Union Operating Engineers Dal-
Your wire relayed to me statements not in line with facts on your last
phone talk with me will be in Dallas tomorrow Thursday to discuss matter-
R. T. MACKENZIE, U. S. Cold Storage Corp.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mackenzie further testified that on the following day, March 23, he waited
at his office until noon without any word from the Union ; he then called Pollard
at his house, that "being the only number I had for him" but was unable to
"make any contact." Mackenzie then went to lunch ; during his absence Pollard
telephoned ; on his return Mackenzie tried until 5 p. m. to reach Pollard
without success and then left for home ; at home his office phoned that Pol-
lard and other union representatives had arrived after he left ; he returned
to his office and met with the Union's representatives, discussing the contract
from 6: 30 p. m. until 9: 30 p. m. According to Mackenzie this meeting closed
with the parties in complete agreement on all matters in dispute including hiring,
transfers, and "line of authority" which had not been settled. However, the
matters of wages and seniority still remained in dispute.
At the March 23 meeting, the Union, in addition to Pollard, was represented
by Leroy E. Nelson, business representative and financial secretary of the Union.
On the following day Mackenzie spoke over the telephone to both Pollard and
Nelson ; during these conversations Mackenzie made a wage offer of $1.15 per
hour for operating engineers and a range of 80 cents to $1 for maintenance-men
trainees. This was in excess of his previous offers.
During the negotiations the Respondent had offered $1.10 per hour for operat-
ing engineers and 85 cents to 93 cents for maintenance-men trainees, which was
exactly what its wage rates were at the time the negotiations began ; at some
point in the negotiations the Respondent reduced its wage offer to $1.05, telling
the Union's representative it did so because the Union had recently signed a
contract with a competing firm at these rates; on March 24, as found, it made
its final wage offer.
During the negotiations the Union asked for $1.50 per hour for operating en-
gineers and $1.45 per hour for maintenance-men trainees. The Union made no
change in this demand until May 20 when it reduced its demand to $1.35 per
hour for engineers and $1.05 to $1.25 per hour for maintenance-men trainees.
At the close of his conversations with Nelson, the latter asked Mackenzie to
"Write up another draft of a contract like we have agreed to, . . . send it to
Pollard and send me a copy to Houston."
The Respondent prepared the requested draft and, on March 27, mailed it as
requested together with a covering letter reading :
We are sending you a copy of the proposed contract which contains changes
made on the basis of the discussion when Mr. Nelson was present.
On April 3, Pollard called on the Respondent and objected to the contract as
written. Mackenzie testified :
A. Well, he objected to the wage rates; he objected to the discharge-for-
cause paragraph. He said that seniority, the seniority clause, was not ac-
ceptable, and that in Article I, Section 2 that they wanted a word replaced,
by the word "chief" instead of "those in authority," which was perfectly
O. K. And one other change, yes. Then this matter of grievance was
again-they objected to that.
On April 5, the Respondent wrote the Union stating :
We have developed several contracts and submitted them to you which we
thought overcame all your objections and met with your approval. You
later rejected them.
We think, therefore, that you should write a contract which is acceptable
to you and submit it to us for our consideration.
Likewise on April 5 between 4 and 4: 30 p. in. Pollard visited the Respondent's
office and was shown a copy of this letter.
UNITED STATES COLD STORAGE CORPORATION 1121
Shortly after 4: 30 p. m. of April 5, the Union called the Respondent 's engi-
neers and maintenance men out on strike.
From the beginning of the negotiations for a contract on January 11, 1350,
until the calling of the strike, April 5, 1950, the Respondent and the Union had
met on 16 different occasions for the purpose of negotiating for a contract.
J. W Pollard, who represented the Union as its principal negotiator during
the 16 bargaining conferences between the parties, testified that all the meet-
ings were arranged as a result of his requests for definite meeting dates which
were uniformly granted by the Respondent. Pollard testified in great detail
regarding the January 13 and 17 meetings. At the former the Union made the
wage demand of $150 per hour ; at the latter the Respondent offered $1.05 per
hour, which was less than its existing scale but which Mackenzie claimed the
Union had accepted from another employer.
Pollard, testifying from notes, detailed the meetings between January 17 and
February 21. According to Pollard, Mackenzie would not permit "real negotia-
tions" but wasted the time with "wild" stories of his experience with other
union representatives and gangsters and tales of strike-breaking methods used
by some other employers ; however, Pollard admitted that the negotiations led
to the Union's request that the Respondent draw the February 7 contract, that
the matter of wages was discussed at all meetings, that the matter of "authority"
was spelled out after discussion, and although he testified in great detail regard-
ing all the conferences he was unable to state who besides himself represented
the Union at some of the meetings.
With respect to Pollard's testimony regarding the various meetings the under-
signed notes the following :
Trial Examiner PiosT. Now, at the end of this February 21 meeting, were
there any clauses in the contract which you were discussing upon which
you and the Respondent, the company, that is, had agreed?
The WITNESS. None whatever, not a paragraph.
Anal Examiner PLOST. You hadn't agreed on anything?
The WITNESS. No, sir.
Trial Examiner PLOST. Was there any time prior to February 21 during
your discussions that you had reached an agreement on anything in these
contracts?
The WITNESS. Not what I would call reaching an agreement , no, sir.
Trial Examiner PLOST. All right, thank you.
Q (By Mr. WOLF:) Will you state whether or not there were any of the
paragraphs that both parties had tentatively agreed upon?
A. We had discussed them, and in the discussion if there-there was not
too much discussion we felt like we could agree, only passed them over and
went to the ones that needed lots of discussion that we couldn' t agree on
whatever.
Trial Examiner PLOST. All right, how many of those clauses had you
passed over, meaning that you were in substantial agreement or in tentative
agreement, and what were they?
The witness then testified that the parties were in tentative agreement on
every article of the proposed contract identifying the clauses by number through
almost three pages of the transcript, except that promotion, discharge, or sus-
pension for cause, wages, seniority, and line of authority were not agreed upon.
The undersigned in evaluating the above-recited testimony finds it significant
that the Geneial Counsel, whose witness Pollard was, did not permit the record
to close with Pollard's obvious attempt to create the impression that no agreement
had been reached on any subject, between the first meeting of the parties and the
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close of the February 21 meeting, after two contracts had been thoroughly dis-
cussed by the parties.
Pollard further testified that the parties met next on March 10, at which
time-
I asked Mr . Mackenzie if he had gave any consideration to the paragraphs
which were just discussed , we could not agree on, if he had changed them
any, and he said he would not change them . And I told him, he was trying
not trying to bargain in good faith and thought he was taking me to be a
chump, and if he was, I was taking him to be the same way, and we would
see who won out.
He got mad and threatened to throw something at me across his desk.
He turned to Mr . Journey and Mr. Harrison and began trying to talk to
them. I would ask him something and he would answer that he was mad
at me and liable to throw something at me.'
At the next meeting , March 13, the Union gave the Respondent a written
seniority clause it desired . On March 16, the Respondent offered a written
counterproposal to the Respondent 's proposed seniority clause. At this meeting
wages were also discussed . According to Pollard , during the wage discussion
Mackenzie began a totally irrelevant story about chicken farming.
Pollard further testified that on March 18 he made an appointment with Mac-
kenzie for a meeting on March 21; that when he and other union representatives
arrived at the Respondent 's office they were told that Mackenzie was out of the
city. The telegraphic interchange hereinbefore found then took place.
Pollard further testified that on March 23 at 4: 45 p. in., he, accompanied
by Nelson and others , called at the Respondent 's office, did not find Mackenzie
there, called him at his home, and finally had a meeting with him at the Re-
spondent's office at 6 : 30 p. m.
With respect to the arrangement for this meeting Pollard testified :
Trial Examiner PLOST. Now , just for the sake of the record , so we don't
create any false impressions-someone else might read this record-you
went to Mr. Mackenzie's office at 4: 45?
The WITNESS . Correct.
Trial Examiner PLOST. Had you made an appointment with Mr. Mackenzie
to meet him at 4: 45?
The WITNESS. No sir.
Trial Examiner PLOST. Did he know you were coming at 4: 45 through
anything that you had told him?
The WrrNESS . He did not.
With respect to the March 23 meeting Pollard testified :
... Mr. Mackenzie told me at that time that I had previously agreed on
everything . And I told him I had not agreed on anything , that he had
accused me of that before and I was getting tired of it. Mr. Mackenzie
got mad and jumped out of his chair and says, "You can't come to my office
and talk to me thataway ." He says, "If you want to strike, strike me now."
Pollard further testified Nelson suggested at the March 23 meeting that the
articles agreed upon be initialed by Mackenzie , but that Nelson's suggestion
was ignored . However, at no other time during the negotiations had this sug-
gestion been made, the agreed clauses had never been set aside , initialed, or
otherwise marked.
At the close of the March 23 meeting it was agreed that Nelson call Mackenzie
the following day.
' On cross-examination Pollard admitted he called Mackenzie "a liar," just before this
interchange.
UNITED, STATES COLD STORAGE CORPORATION, 1123-
As has been found herein, the parties conferred by phone on the following day:
Nelson testified that during this conversation the Respondent offered to set
wages at $1.15 per hour, and that he (Nelson) offered to recommend $1.35, that
it was further agreed that the Respondent submit a new contract. This contract
was received by the Union on March 28.
Pollard testified further that on April 3 he called at the Respondent's office
and after some inconclusive discussion he asked for an appointment for April 5,
but that Mackenzie stated that he might be gone and suggested that Pollard
call him on that day. On April 5, according to Pollard, he called Mackenzie
several times but could not get to talk to him as he was out or talking on another
phone. At 2 p. in. Pollard went to the Respondent's office, did not find Mackenzie
there but was shown a copy of a letter to be sent to him in which the Respondent
suggested that the Union submit a proposal in writing.
On cross-examination Pollard admitted that at each of the meetings between
the parties there was some discussion of the contracts and their various clauses ;
he further admitted that :
There was always more or less friendly conversations in any meeting.
Pollard admitted that the Union submitted no written proposals to the Re-
spondent other than the original draft contract, and the clauses on seniority
and arbitration, and made no other offer on Wages, from the first meeting until
the strike, which began on April 5.
The assigned reason for the strike was the Respondent's "refusal to grant
our reasonable requests with respect to wages, working conditions and arbitra-
tion proceedings."
The General Counsel contends that the strike was an unfair labor practice
strike caused by the Respondent's refusal to bargain with the Union in good
faith.
Concluding Findings on the Bargaining for a Contract
It is- quite clear from the record considered in its entirety that the parties
were never in serious disagreement on any matter except wages and seniority,
perhaps the most important matters to be covered in a labor contract, at least
from the viewpoint of the rank-and-file worker.
Pollard's testimony to the effect that the Respondent refused to bargain on'
the various provisions of the proposed contract is not supported by the record.
Pollard's own testimony reveals the contrary.
Before the bargaining conferences were broken off by the strike the Respondent
had in part accepted the Union's demand as to seniority, and had made a con-
cession with respect to wages. The undersigned is not persuaded that the Re-
spondent's original offer of a wage rate, less than its existing rate, was of itself
evidence of bad faith, rather under all the circumstances, including the Respond-
ent's explanation for the offer as given the Union at the time, it seems to have
been nothing more than a bargaining technique.
Whether or not the Respondent's wage rate was inadequate, or the Union's
demand unreasonable, is not a matter to be considered here, all that is at issue
in the instant matter is whether or not the Respondent bargained in good faith,
with respect to all bargainable issues raised. The outcome of the bargaining,
if it was carried on in good faith, is of no concern here.
It is apparent that the Respondent was a hard bargainer but there is no evi-
dence that the Respondent approached the bargaining table with a closed mind
and a fixed determination to make the gesture of bargaining only. The Union
was also a hard bargainer, and although the record shows that its principal
negotiator was inept and that the Respondent may have profited by this yet there
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is nothing in the evidence that shows that Respondent failed to bear its share
of the mutual obligation to bargain in good faith as required by the Act.
Considering the many inconsistencies in Pollard's testimony with respect to
the bargaining conferences the undersigned does not credit his account thereof
and finds that Mackenzie's testimony with respect to the 16 bargaining confer-
ences between the parties represents the more accurate version.
The undersigned finds that the record does not sustain the General Counsel's
contention that the Respondent refused to bargain collectively in good faith with
the Union, during the series of bargaining conferences held between them during
the period from January 9, 1950, to and including April 5, 1950.
3. The Respondent's telegrams and letters to the strikers
On April 5, 1950, the Union called its members, employees of the Respondent,
out on strike. The employees went out on strike when called and established a
picket line the following clay. The strike continued until June 23, 1950, when
the pickets were withdrawn. The announced reason for the strike was the Re-
spondent's refusal to grant the Union's "request with respect to wages, working
conditions and arbitration procedures."
The undersigned has found that the strike was not caused by any unfair labor
practices of the Respondent and was an economic strike, therefore, the Respond-
ent's employees who joined in the strike had the status of "economic strikers"
who possessed only the rights of "economic strikers" and were subject to the
disabilities of such strikers.
On April 6, the Respondent sent the following telegram to each of the strikers :
We consider the strike illegal since at no time did the company refuse
to bargain. Under the circumstances we would like you to report back
to your regular job within 24 hours after receiving this telegram on your
regular shift time If you do not report we will consider that you are
terminating your employment and a replacement will be hired.
(Signed)
On April 24, the Respondent sent a letter to each of the strikers advising them
in substance that inasmuch as he had not reported for work it considered him
"no longer an employee," and therefore no longer -eligible for insurance under
the terms of a certain policy carried by the Respondent but that if the striker
wished to maintain the policy he could convert it with the insurance company
under certain conditions.
The General Counsel alleges that the sending of the telegram and letter
constituted unfair labor practices by the Respondent.
The undersigned finds no merit in this contention for the following reasons:
An economic strike is a naked test of strength : The employee risks his job
when he joins an economic strike as it has been well settled that if a striking
employee under such conditions is replaced by his employer before such striking
employee makes an unconditional offer to return, the striker has lost his right
to reinstatement.
This being an economic strike, the Respondent had a right to replace the
strikers with permanent employees, if he did so before the strikers capitulated.
The Respondent was not obliged to advise the strikers that it proposed to do
so, it could make the replacements and foreclose any further claim to the jobs so
filled. The undersigned fails to understand how it can be said that the Re-
spondent engaged in an unfair labor practice by issuing a warning in its tele-
gram to the strikers that the jobs placed in jeopardy by the strikers would be
filled. The strikers are presumed to know the law. The Respondent in effect
merely restated it for their benefit.
UNITED STATES COLD STORAGE CORPORATION 1125
So much for the telegram of April 5.
As to the letter of April 24 : The letter proceeds on the theory that the
strikers are no longer employees If the jobs had been filled by others this
would of course be so , and the policy of insurance would presumably not cover
the former employees . The record shows that prior to April 24, the Respondent
had employed four replacements for the strikers and in addition to these three
other men who were not replacements , together with the chief engineer and one
employee who did not join the strike were also working in the engine room.
Seven men went on strike. None of the seven had indicated that they were re-
turning to work. Under these circumstances the Respondent ' s concern for
the status of a group insurance policy on which it paid the premiums , together
with the employees covered, is no more than natural. Passing information
regarding the policy to the strikers was more in the nature of ordinary business
practice than an attempt to undermine the authority of the Union by veiled
threat to those undesignated employees who could still claim the unfilled jobs
in the engine room.
Under the circumstances the undersigned finds on all the evidence that the
Respondent did not violate the Act by sending the telegram and letter to the
strikers as above set out.
4. The unilateral pay raise
The complaint alleges :
On or about January 18 , 1950, respondent granted a pay raise to one of the
employees in the unit . . [ Paul James] without informing or consulting
the union... .
The record shows two classes of employees in the engine room, operating engi-
neers and maintenance-men trainees . Mackenzie testified credibly without con-
tradiction and with corroboration by the Respondent 's records that on December
2, 1949, the Respondent employed Paul James as a maintenance -man trainee at
75 cents per hour subject to an agreement that he would receive a wage increase
if his work proved satisfactory.
The rate of pay for maintenance-men trainees in effect at the Respondent's
plant was a range of 75 to 931/2 cents per hour.
It has been found that the Union was certified December 14, 1949. Mackenzie
testified that shortly after James was hired "I told him there was a union in the
organization and that it was up to him what he did about it." On January 18,
1950, James' pay was incereased to 90 cents per hour.
Conclusion
James was employed before the Union was certified and although he received a
pay raise at the time the Union and the Respondent were negotiating for a con-
tract, and the Respondent did not so inform or otherwise consult the Union with
respect to James' pay raise, it is clear that the pay raise was not in any way in-
consistent with the wage policy in effect at the time and was in accord with an
agreement made with James by the Respondent when he was first hired. There
is nothing to show that the conditions to be met before the raise was to be granted
were not in fact all fulfilled , and as moreover there was no contract in effect
between the Union and the Respondent , it does not seem to the undersigned that
the Respondent ' s motive in granting James' pay raise was to undercut the Union's
authority.
Under all the circumstances the undersigned is convinced and finds that the
974176-52-vol. 96---72
-1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-evidence does not prove the Respondent violated the Act by granting a raise in
-pay to Paul James on January 18, 1950.2
5. The Union ceases picketing
The picket line established April 6 was maintained until June 23, 1950.
On May 1 the Union wrote to the Respondent protesting the Respondent's
-action with respect to the insurance policies as expressed in its letters of April 24.
The Union wrote :
We insist that these employees be granted the same insurance and other
benefits granted your other employees.
In this letter the Union insisted that the Respondent had discharged its em-
ployees and thereby "converted the prior unfair labor practice strike into an
mnlawful lockout." The Union also advised the Respondent it had filed charges
-with the Board.
In the opinion of the undersigned the legal requirement that the strikers make
an unconditional offer to return to work is not contained in, nor can it be read
into, the above -mentioned letter. Rather it shows the Union 's belief that the
strike was an unfair labor practice strike. The undersigned has found
,otherwise.
Under date of May 8 the Respondent replied, denying the Union 's charge of
-discrimination , explaining the reason for its action on the insurance policies
had been "to give these men an opportunity to convert the insurance , as provided
iby the agreement with the Insurance Company when an employee terminates his
-employment." The Respondent stated in its letter :
Since these men walked out voluntarily and picketed our premises, and
refused to return to work when we made them an unconditional offer to do
so, we have secured replacements for some of these men. At the present
time we can re-employ one operating engineer and two maintenance men-
trainees . We are willing to re -employ the operating engineer on a seniority
basis. Re-employment of maintenance men-trainees will be on the basis of
ability and likelihood of subsequently meriting promotion to operating
engineer.
We can now, and are willing to re-employ two maintenance -men trainees.
The other former employees may make application for employment and
will be re-employed when vacancies occur.
The Respondent 's letter appears to be merely a restatement of the law. It
-offers to fill the places still empty from among the strikers . The statement that
it is "willing to reemploy the operating engineers on a seniority basis," merely
-meets the Union's demand as to seniority insofar as it applies to operating engi-
neers ; the statement as to maintenance -men trainees is the same refusal to recog-
.nize seniority for these employees as made before. Clearly here the Respondent
-is merely restating the last position it took at the conference table.
It cannot be inferred that the Respondent intended to pick and choose among
the strikers applying for the available jobs, in fact , subsequent events show quite
-the contrary , for on May 13 two of the strikers , an operating engineer and a
maintenance-man trainee , applied for jobs and were promptly reinstated by the
. Respondent . No other of the strikers has applied.
Clearly when the Respondent offered to fill vacancies from among applicant
strikers and then did so without reservation it completely filled the measure
of its obligation ; when it in effect offered to create a preferential list for those
2 On April 19, 1950, James was promoted to operating engineer at a rate of $1 15 per
'hour. This is not alleged as an unfair labor practice, therefore the undersigned makes
;no finding with respect thereto.
UNITED, STATES COLD STORAGE CORPORATION 1127
strikers who could not be employed at that time it gave "good measure, pressed
down , and shaken together , and running over."
The undersigned finds that the Respondent reinstated those strikers who
applied for reinstatement prior to such time as the jobs they left were filled and
did not refuse employment to any of its striking employees who met the require-
ments of application as required by the Board's decisions under such circum-
stances.
On May 20, 1950, the Union through Nelson sent a proposed contract to the
Respondent.
As has been found herein the Respondent, on March 27, at the Union's request
drew and submitted a proposed contract to the Union. This was the third such
proposal the Respondent drew and submitted at the Union's request. The con-
tract submitted by the Union on May 20 and the Respondent's contract of March
27 are'identical in form and language except that the Union's contract omits a
clause giving the Respondent the right to discharge or discipline for intoxication,
violation of safety rules, and some other causes without further recourse to the
grievance procedure by the affected employee; omits a clause in the Respondent's
draft giving it the right to classify employees ; does not follow the Respondent's
proposed wage rate, workweek, or seniority provisions.
It is therefore plain that the Union's proposal is merely a restatement of the
parties positions, agreed upon, or in dispute, at the close of the last meeting
between them.
An interchange of letters followed. These letters demonstrate clearly that the
parties recognized their dilemma, found no solution, and could do no more than
restate their opinions in politely phrased recrimination.
The Respondent's last letter is dated June 19, 1950. It closes with the
following :
In view of the fact that the ,matters about which there is any substantial
difference have been thoroughly discussed, we do not believe that there is
any further need for discussion in person on these subjects. If you sub-
sequently wish to revise your ideas on these issues, if you will submit them,
they will be considered.
Nelson, writing for the Union, closed the correspondence in a letter which read
in part:
You happen to be the first, the only man and/or employer, over a period of
five years of continuous negotiations with many employers, with whom I
could not obtain an appointment to sit down and work out a reasonable,
equitable and honest agreement for the benefit of all concerned.
It is quite apparent that an impasse had been reached and recognized as such.
The undersigned finds that the evidence considered as a whole does not support
the allegations of the complaint that the Respondent failed to bargain collec-
tively in good faith with the Union as required by the Act.
6. Alleged additional 8 (a) (1)
There is no evidence that the Respondent at any time interrogated its employees
concerning their union affiliations; threatened or warned its employees not to
assist or become members of the Union ; kept the Union's meeting places under
surveillance, or spied on the activities of the Union or its employees' activities
in the Union's behalf.
Conclusion
Upon a review of the entire record in the case and upon all the evidence con-
sidered as a whole, including his observation of the witnesses, the undersigned
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is persuaded that the evidence adduced by the General Counsel does not sustain
the allegations of the complaint that the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act. The
undersigned will therefore recommend that the complaint be dismissed in its
entirety.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. Stationary Engineers, Local 707, International Union of Operating Engi-
neers. AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices within the mean-
ing of the Act.
Recommendations
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in the case, the undersigned hereby recommends that the complaint
herein be dismissed in its entirety.
In the event no statement of exceptions is filed as provided by the Board's
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in said Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes.
WESTINGHOUSE ELECTRIC CORPORATION and AMERICAN FEDERATION OF
LABOR, PETITIONER. Case No. 8-IBC-1287. October 29, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Carroll L. Martin, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 Herzog and Members Houston and Mur-
dock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following reason :
The Petitioner requests a unit of all maintenance employees at the
96 NLRB No. 180.