Belcon, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1981

257 N.L.R.B. 1341 (N.L.R.B. 1981)

BELCON, INC.
Belcon, Inc. and Building Material & Dump Truck
Drivers Local 420, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America. Cases 21-CA-18466 and 21-
CA-18783
September 15, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 21, 1981, Administrative Law Judge
Gordon J. Myatt issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed limited cross-exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent contends, however, that many of the Administrative Law
Judge's credibility resolutions were based on factors other than demeanor
and that his credibility findings were based instead on factual probabilities
that were demonstrably erroneous. In contested cases, the Act commits
to the Board itself the power and responsibility of determining the facts
as revealed by a preponderance of the evidence and we base our findings
as to facts on a de novo review of the entire record. Standard Dry Wall.
supra. Having done so, we find that the Administrative Law Judge's
credibility resolutions comport with the record. In any event, we note
that the Administrative Law Judge commented that his Decision was
also based on his observance of the demeanor of witnesses while testify-
ing.
The Administrative Law Judge inadvertently stated that the second ne-
gotiation session was held on December 1, 1979. The correct date is No-
vember , 1979. Additionally, fn. 8 of his Decision incorrectly states that
Respondent's President Morgan presented Respondent's final offer to the
striking employees on November 29. In fact, Union President McFadden
presented that offer to the employees.
2 The Administrative Law Judge ordered, in the event the parties' col-
lective-bargaining agreement was reduced to writing, that Respondent,
upon request by the Union, should sign the agreement. The General
Counsel has specifically excepted to the Administrative Law Judge's fail-
ure to include such a provision in the Notice To Employees. We find
merit in the exception and accordingly the notice has been so modified.
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980). Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Belcon, Inc.,
Los Angeles and Torrance, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to recognize Building
Material & Dump Truck Drivers Local 420,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of
America, as the exclusive bargaining repre-
sentative of the employees in the unit set forth
below.
WE WILL NOT refuse to implement and put
into effect the terms of the collective-bargain-
ing agreement consummated between us and
the above-named Union on November 29,
1979.
WE WILL NOT refuse to bargain in good
faith with the above-named Union as the ex-
clusive representative of our employees in the
unit set forth below by refusing to furnish the
Union with the information it requested with
respect to all unit employees on February 22,
1980.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the excercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL recognize the above-named Union
as the exclusive bargaining representative of
our employees in the following unit:
All truck drivers, pumpers, and warehouse-
men employed at our facilities located at
2600 South Eastern Avenue, Los Angeles,
California, and 1908 Del Amo Avenue, Tor-
rance, California; excluding all other em-
ployees, office clerical employees, sales em-
ployees, guards, and supervisors as defined
in the Act.
257 NLRB No. 175
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL sign, upon request by the Union,
the written document embodying the agree-
ment reached on November 29, 1979.
WE WILL implement, retroactively to No-
vember 15, 1979, the collective-bargaining
agreement reached between us and the Union
on November 29, 1979, and WE WILL make
whole all employees, including any who have
since left the payroll, for any losses of wages
or benefits suffered by reason of our failure to
give timely effect to said agreement, with in-
terest.
WE WIL bargain in good faith with the
above-named Union by supplying it with the
information requested on all unit employees.
BELCON, INC.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge: Upon
charges filed on December 6, 1979, and March 12, 1980,
by Building Material & Dump Truck Drivers Local 420,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America (hereafter called
the Union), against Belcon, Inc. (hereafter called the Re-
spondent), the Regional Director for Region 21 issued an
order consolidating the cases and a consolidated amend-
ed complaint and notice of hearing on April 22, 1980.
The complaint alleges that since November 29, 1979,'
and continuing thereafter, the Respondent has refused
the Union's request to execute and implement a collec-
tive-bargaining agreement which was reached between
the parties. The complaint further alleges that since De-
cember 3 and continuing thereafter the Respondent has
withdrawn recognition of and refuses to bargain with the
Union as the exclusive bargaining representative of its
employees in an appropriate unit.2 Finally, the complaint
alleges that since Febuary 20, 1980, the Respondent has
refused to furnish the Union with information necessary
and relevant to its performance as the collective-bargain-
ing representative of the unit employees. It is asserted
that, by this conduct, the Respondent has violated Sec-
tion 8(a)(l) and (5) of the National Labor Relations Act,
as amended, 29 U.S.C. §151, et seq. (hereafter called the
Act).
The Respondent filed an answer which admitted cer-
tain allegations of the complaint, denied others, and spe-
cifically denied the commission of any unfair labor prac-
tices. By way of an affirmative defense the Respondent
asserts that it lawfully withdrew recognition of the
i Unless otherwise indicated, all dates herein refer to the year 1979.
2 The parties stipulated that the appropriate bargaining unit is described
as follows:
All truck drivers, pumpers, and warehousemen employed by the Re-
spolldent at its facilities located at 2600 South Eastern Avenue, Los
Angeles, California, and 1908 Del Amo Avenue, Torrance, Califor-
nia: excluding all other employees, office clerical employees, sales
employees. guards, and supervisors as defined in the Act.
Union because it no longer represented a majority of the
unit employees.
A hearing was held on this matter in Los Angeles,
California, on July 8 and 9, 1980. All parties were repre-
sented by counsel and afforded full opportunity to exam-
ine and cross-examine witnesses and to present material
and relevant evidence on the issues. Briefs were submit-
ted by the General Counsel and the Respondent and
have been duly considered.
Upon the entire record in this case, including my ob-
servation of the witnesses and their demeanor while testi-
fying, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation engaged in
the wholesale and retail sale of industrial gases and weld-
ing equipment and supplies from two facilities located in
Commerce and Torrance, California. The Respondent is
a wholly owned subsidiary of Airco, Inc., which is head-
quartered in the State of New Jersey. In the course of its
business operations, the Respondent annually receives
gross revenue in excess of $500,000, and annually pur-
chases and receives goods and products valued in excess
of $50,000 directly from suppliers located outside the
State of California. Accordingly, I find, and the plead-
ings admit, that the Respondent is an employer engaged
in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
1l. THE LABOR ORGANIZATION INVOLVED
Building Material & Truck Drivers Local 420, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Negotiation for a New Collective-Bargaining
Agreement
The Respondent and the Union have been parties to
successive collective-bargaining agreements since No-
vember 1967. The latest agreement was effective from
November 15, 1976, through November 14, 1979. In Sep-
tember 1979, the Union sent the Respondent a notice to
reopen the then-existing contract and requested a meet-
ing to negotiate terms for a new successor agreement.
David Morgan, president of the Respondent, arranged to
meet with Gene McFadden, president of the Union, on
October 25 at the union hall. 3
At the October 25 meeting, McFadden presented
Morgan with a list of the Union's proposals. (G.C. Exh.
7.) These proposals were keyed to various sections of the
current agreement. Among other things, the Union was
seeking a I-year contract and wanted to add provisions
for a pension plan in the agreement.4 The past agree-
:' McFadden and Morgan were the only negotiators for the respective
parties.
' The Union also sought proposals to stop management from using foul
language, for increases in the number of holidays and amount of vacation
Continued
1342
BELCON, INC.
ments between the parties were uniformly for 3-year
terms and did not include pension benefits.
Very little was accomplished at this initial meeting re-
garding the substantive issues proposed by the Union.
Morgan requested time to study the Union's proposals
and the parties agreed to meet at a future date. Morgan
testified that McFadden was not clear on what type of
pension plan the Union had in mind, and he, Morgan,
stated that the parties would have to thoroughly investi-
gate various plans in order to find a suitable one.
Morgan testified that following his meeting with
McFadden he called Robert Liebrich in Murray Hill,
New Jersey. Liebrich was the manager of labor relations
for Airco Welding Products, a division of Respondent's
parent organization. 5 Morgan sent Liebrich a copy of the
Union's proposals, and, with Liebrich's assistance, formu-
lated counterproposals to be presented to the Union at
the next bargaining session.
A second meeting was held on December . At this
meeting, Morgan presented McFadden with the Re-
spondent's counterproposals. (G.C. Exh. 8.) By its terms,
the Respondent agreed to some of the initial proposals
submitted by the Union and rejected others. The Re-
spondent made an offer on wages and proposed that the
contract be for a 3-year term. Regarding the pension
plan request of the Union, the Respondent asked for
more information. McFadden indicated to Morgan that
the Union wanted the employees to be covered under
the Western Conference of Teamsters Pension Plan.
Since Morgan had no knowledge of this particular plan,
McFadden secured a number of pamphlets which were
kept at the union hall and gave them to Morgan. Morgan
then asked for additional time to study the material
before getting back to McFadden. There was no agree-
ment between the parties on the wage issues. According
to Morgan's testimony, the Union was looking at an
agreement which the Respondent's parent company
(Airco) had negotiated with the representative of the em-
ployees at its Duarte plant as a model for the agreement
the Union was seeking to reach with the Respondent.
The results of this meeting were inconclusive and the
parties agreed to meet again.6
On November 8, McFadden met with Morgan at the
Hyatt House in Commerce. They went over the respec-
tive proposals. McFadden testified that he told Morgan
the Union would accept the same wage package the em-
ployees were receiving at Airco's Duarte plant. Morgan
stated that they discussed proposed wage rates for a
semidriver, since the Respondent was thinking of adding
a semitruck to its operations. According to Morgan,
McFadden suggested that the Respondent give the em-
ployees a wage increase of $1.50 per hour and let the
employees purchase their own pension plan. Morgan re-
time, for increases in wages, and for improved health and welfare hene-
fits.
I Liebrich provided assistance to the Respondent on matters involving
labor relations. Respondent's proposals and its negotiating position were
cleared through him by Morgan prior to meeting with the Union. In ad-
dition, Morgan reported to Liebrich after every negotiating session in
order to determine Respondent's position on the various matters dis-
cussed and the strategy to be adopted at future meetings.
6 As in the case of all meetings with the Union. Morgan reported the
events immediately to Liebrich in New Jersev.
jected this idea, stating that the employees would spend
the extra money rather than invest it for pension cover-
age. No firm agreement was reached on economic mat-
ters and the parties agreed to meet at the same place on
November 13.
According to McFadden, on November 13 Morgan in-
creased his wage offer to the Union. After some discus-
sion, Morgan agreed to put the Respondent's final offer
in writing and supply it to McFadden the following day.
McFadden also testified that he and Morgan discussed
the Union's request for a pension plan, but McFadden
was unable to recall any specific details of this discus-
sion.
Morgan, on the other hand, recalled that he gave
McFadden a second set of proposals at this meeting, and
they did not include any provision for a pension plan.
(Resp. Exh. 2.) He stated that, when McFadden asked
about the pension coverage, he replied that the time was
too short to conduct an investigation in order to deter-
mine the best plan for their purposes. Morgan further
testified that McFadden suggested he put the Respond-
ent's final proposals in writing so that McFadden could
take it to the employees. It was agreed at the conclusion
of this particular meeting that Morgan would supply
McFadden with the Respondent's final offer the next
day.
The following day, McFadden went to the Respond-
ent's plant and was given a copy of the final offer. (G.C.
Exh. 10.) McFadden presented this offer to the employ-
ees at a meeting that evening with an accompanying rec-
ommendation that the employees accept the Respond-
ent's terms for a new agreement. The employees disre-
garded McFadden's advice and rejected the Respond-
ent's final proposal. According to McFadden, the em-
ployees wanted a larger wage increase and coverage
under a pension plan. Since a strike authorization had
previously been granted, picket signs were prepared for
a strike to commence the following morning.
The employees started picketing the Respondent's fa-
cility the next day protesting the failure to reach a new
agreement. There is testimony that, during the course of
the strike, which lasted until November 29, pickets fol-
lowed Respondent's trucks driven by strike replace-
ments. There is also testimony that truck tires were
slashed and that, in one instance, cables controlling the
lift gate on a truck were cut. There is no evidence in the
record, however, indicating which of the strikers, if any,
were responsible for this damage.
McFadden and Morgan met again on November 16 at
the union hall. Two employees were present at this meet-
ing, which was apparently arranged by McFadden to
assure the employees that he had accurately reported the
Respondent's final offer to them on November 14. 7
Morgan testified that he was reluctant to negotiate in
front of the employees and merely assured them that
7 One of the individuals present at this meeting was Hector Cebreros.
who had been employed as a driver by the Respondent. It was stipulated
that Cebreros was lawfully discharged at the close of business on No-
vember 14 and was no longer a member of the bargaining unit Neverthe-
less, he apparentlh joined the strike and participated ill the picketing ac-
tivity
1343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McFadden had properly represented them during the ne-
gotiations and in reporting the Respondent's final offer.
He also indicated that the Respondent stood firm behind
its last offer and had nothing more to propose. Morgan
suggested to McFadden that they meet on November 18
to try to settle their dispute over the contract terms.
When McFadden and Morgan met on November 18,
very little was accomplished by way of fruitful negotia-
tions. Morgan insisted that he could offer nothing more
and the Union did not present any counterproposals.
The final bargaining session took place on November
29 at the coffeeshop in the Hyatt House. McFadden tes-
tified that he asked Morgan to increase the wage pack-
age so he could then have something to present to the
employees in order to persuade them to go back to
work. He also asked for an agreement on some type of
pension provision. According to McFadden, Morgan
stated that he did not have any more money to offer. He
also told McFadden that he, Morgan, was considering
establishing a company pension plan for the managerial
employees and that possibly the unit employees could be
included. However, there was nothing definite at that
time. Morgan, on the other hand, testified that McFad-
den pleaded with him at this meeting for something to
take back to the employees so the strike could be ended.
He stated that he told McFadden the Respondent could
not offer any more money. He also told McFadden that
there could be no agreement on a pension plan because
there was no time to investigate various plans in order to
select a proper one. The meeting ended without resolv-
ing any of the outstanding differences between the par-
ties.
McFadden testified that, after the meeting with
Morgan, he went to the Respondent's plant and spoke to
the striking employees. He again presented the Respond-
ent's final offer to them and urged them to accept it. 8
This time the employees decided to heed McFadden's
advice and voted to end the strike and return to work.
McFadden then went into the plant and told Morgan
that "we have a contract" because the men had accepted
the Respondent's last offer. He wanted to know when
the employees could return to work. According to
McFadden, Morgan replied that he would have to get
advice on whether there was an agreement. McFadden
stated that, during his conversation with Morgan, he did
not mention anything about a pension plan.
After leaving Morgan, McFadden returned to union
headquarters. There he called the Union's attorney, who
then dictated to one of the Union's secretaries over the
telephone the contents of a mailgram. The mailgram was
sent to the Respondent and stated that the Union had ac-
cepted the Respondent's final offer made on November
14, and further that the employees unconditionally of-
fered to return to work on November 30 at their regular
starting time. (G.C. Exh. 11.) 9
Morgan testified that he did this because the strike was going badly
and he felt nothing more could be gained by having the employees out
on the picket line.
9 Although the Union's confirmation copy of the mailgram was intro-
duced into evidence, Morgan testified that he had never received the
mailgram. At the time of the hearing herein, Morgan had left the Re-
spondent's employ and was working for another company which was not
affiliated with the Respondent or its parent concern. His successor at the
The following morning McFadden, accompanied by
the unit employees, went to Morgan's office at 7:30.
Morgan stated that the employees would be placed on a
preferential rehire list and called back when positions
were available. McFadden protested, stating that the em-
ployees were ready to return then and that the parties
had a contract. He also indicated that there was a griev-
ance procedure in the contract and he would consult
with the Union's attorney.
Regarding the events of November 29 and 30, Morgan
testified that, on November 29, McFadden came into his
office and said the striking employees had accepted the
Respondent's final proposal and the parties had a con-
tract. He stated that McFadden also said the employees
wanted to become part of Respondent's pension plan
whenever one was established. McFadden told Morgan
that the employees were ready to go to work and he re-
quested pay for them for that particular day. Morgan tes-
tified that he told McFadden that the employees would
be placed on a preferential rehire list and called as va-
cancies occurred. According to Morgan, McFadden then
said he would have to go to the "Labor Board."
After McFadden left, Morgan called Liebrich in New
Jersey and advised him of the events. Liebrich testified
that, when he received the call from Morgan, he was
told that the employees accepted the Respondent's final
offer conditioned on the fact that the employees were to
be included in a pension plan if the Respondent estab-
lished one, and that the employees be returned to work
immediately. Liebrich said he felt the Union was making
a counteroffer rather than accepting the Respondent's
final offer. In Liebrich's judgment, the counteroffer im-
posed two conditions: The immediate return to work of
the strikers and the inclusion of the unit employees in a
pension plan when the Respondent instituted one. Lie-
brich advised Morgan that the Respondent was not re-
sponding favorably to any pension proposal nor was it
going to "back off" the preferential rehire status for the
former striking employees. Liebrich testified that he con-
sulted with Airco's labor attorney and then called
Morgan again. He told Morgan to expect McFadden and
the employees to show up at the facility the next morn-
ing. He stated that he reaffirmed his prior advice on the
preferential rehire and pension plan proposals, and fur-
ther instructed Morgan to tell McFadden that the Re-
spondent had a good-faith doubt that the Union repre-
sented a majority of the employees.
Morgan testified that McFadden and the employees re-
turned the morning of November 30. He repeated his
statement to McFadden that the employees would be
placed on a preferential rehire list and called when open-
ings occurred. McFadden wanted the employees paid for
showing up to work that day and the day before.
Morgan stated that he would have to get advice on that
issue. He testified that he also told McFadden he would
have to seek legal advice because he had a "good-faith
Respondent, Bryant Reed, testified that he conducted a search of the Re-
spondent's file, but was unable to find a copy of the mailgram. The
Union's copy showed an address on Eastern Avenue rather than South
Eastern Avenue, which was the Respondent's proper street address.
However, the mailgram did contain the correct zip code.
1344
BELCON, INC.
doubt" that the Union represented a majority of the em-
ployees because of the sentiments of the strike replace-
ments.
Sometime on November 30, Liebrich drafted a letter
withdrawing recognition of the Union and sent it by tele-
copier to Morgan. The draft was subsequently typed on
the Respondent's letterhead and sent to the Union on
December 3. The letter stated the Respondent had a
good-faith doubt that the Union represented a majority
of the employees working in the positions covered by
the expired agreement. For this reason, the Respondent
refused to enter into further negotiations with the Union
and withdrew its final offer from the "bargaining table."
(G.C. Exh. 12.)
B. The Strike Replacements
After the commencement of the strike, the Respondent
hired strike replacements in order to continue its business
operations. One of these replacements, Richard Gormley,
had been employed by the Respondent since November
4 on a part-time basis in the warehouse.' On November
16, Gormley agreed to switch over to the position of
truckdriver to replace one of the striking drivers. Gorm-
ley testified that he told Dave Jackson, the Respondent's
warehouse manager, at the time he became a driver that
he did not want to become a member of the Union and
that he was willing to cross the picket line. Jackson testi-
fied that, after several incidents with the striking employ-
ees, Gormley told him that he was more willing than
ever to work for the Respondent. According to Jackson,
Gormley said he was not bothering the pickets and he
could not understand why they were harassing him.
Lamar Sepulveda was hired on November 16 as a re-
placement pumper. Jerrel Williams held this position
prior to the strike. According to Sepulveda, at the time
he was hired he told Jackson, Morgan, and Peterson, the
latter was apparently a salesman for the Respondent, that
he did not need a union to represent him and he did not
want a union job. Jackson testified that Sepulveda said
he was antiunion and did not want to join a union. On
cross-examination, Sepulveda admitted that in his affida-
vit he indicated that Peterson was the only person to
whom he spoke at the time he was hired. He stated in his
affidavit that he told Peterson he did not want a union
job because he did not care for the Union. He further ac-
knowledged on cross-examination that it was not until
the first part of January 1980 that he spoke with Jackson
about his antiunion sentiments. He stated that Jackson
asked him about his feelings regarding the Union be-
cause, according to Jackson, the employees might be
asked how they felt about the Union. It was then that
Sepulveda expressed his antiunion sentiments to Jackson.
There was no mention in Sepulveda's affidavit that he
ever voiced similar sentiments to Morgan.
Oliver Stringer was hired as a replacement truckdriver
on November 16. Although Stringer testified that he told
Jackson during the strike he did not want to be repre-
sented by the Union, he admitted on cross-examination
'o Because he had not been employed for 30 days when the strike oc-
curred, Gormley had not become a member of the Union under the
union-security provisions of the expired agreement.
that he really told Jackson he did not care whether the
Union got back in or not, and that he was there to work.
Jackson testified that Stringer said he was willing to
work regardless of the strike because he needed the job.
George Degner was hired as a driver on November
16. He was the most vocal of the employees in his an-
tiunion sentiments. Degner testified that he told Jackson
at the time he was hired he did not want the Union to
represent him. Both Degner and Jackson testified that
Degner said, "Screw them. I don't need them." Degner
stated that during the strike he repeated his sentiments
with greater emphasis to Jackson. He told Jackson,
"Fuck them. I don't need them."
Bruce Strom was also hired as a replacement driver on
November 16. He testified that, when he was hired, he
told Morgan he did not want to be represented by the
Union because of problems he had with a union on an-
other job. In his affidavit, however, Strom stated that he
told Morgan it did not matter to him whether he crossed
the picket line or not, as he was not presently a union
member. Strom further stated in his affidavit that the
subject of his being represented by the Union was not
discussed, nor did he tell Morgan he did not wish to be
represented by the Union. (G.C. Exh. 16.)
C. The Refusal To Furnish the Requested Information
to the Union
By way of stipulation the parties agreed that on Febru-
ary 22, 1980, the Union submitted a written request to
the Respondent asking for the names, social security
numbers, and seniority dates of the unit employees. It
was further agreed that the Respondent refused to pro-
vide the Union with this requested information.
D. Concluding Findings
The General Counsel contends that, when McFadden
informed Morgan the employees had accepted the Re-
spondent's final contract proposals on November 29, the
parties had entered into a binding agreement. The Gener-
al Counsel further contends that even in the absence of a
binding agreement on that date the Respondent's with-
drawal of recognition of the Union on December 3 was
unlawful. In support of this position, the General Coun-
sel argues that there is a rebuttable presumption that the
Union continues as the majority representative after the
expiration of the contract, and the Respondent has failed
to establish that its doubts concerning the Union's major-
ity status were based on objective considerations suffi-
cient to overcome the presumption.
The Respondent, on the other hand, argues that a
binding agreement was never consummated between the
parties. The Respondent contends that McFadden's "ac-
ceptance" was no acceptance at all since it imposed two
conditions; i.e., (I) that the unit employees be included in
a pension plan whenever the Respondent established one
for the managerial employees, and (2) that the striking
employees be returned to work immediately. Proceeding
from this premise, the Respondent then argues that the
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's principle, as set forth in case law, t" that strike re-
placements are presumed to support the union in the
same ratio as those they replace, is totally unrealistic, es-
pecially in the circumstances of this case. Thus, the Re-
spondent argues that the sentiments expressed by the
strike replacements, coupled with their harassment
during the course of the strike, were sufficient objective
criteria to establish a good-faith doubt that the Union en-
joyed majority support among the unit employees.
I consider the threshold question here to be whether a
new collective-bargaining agreement was entered into on
November 29. In my judgment, this question must be an-
swered in the affirmative.
It is evident from the record that the parties were
locked in an economic struggle after the employees re-
jected the Respondent's final offer on November 14.
Until that time, McFadden and Morgan had been dili-
gently negotiating, albeit unsuccessfully, in an effort to
arrive at an agreement prior to the expiration date of the
existing contract. Therefore, the strike which com-
menced on November 15 was economic in nature. It is
equally evident that the Union's posture during the
course of the strike was one of diminishing strength. The
Respondent hired replacements for the striking employ-
ees and continued to operate its business without substan-
tial interruption. The Union's lack of strength is further
evidenced by the fact that its representative, McFadden,
felt compelled to call on the Respondent's top official,
Morgan, to come to union headquarters to assure the
striking employees that the union representative was
properly representing their interests and accurately re-
porting management's final proposal to them. In addition,
when McFadden met with Morgan on November 29 at
the Hyatt House, he made an unsuccessful plea to per-
suade the Respondent to increase the wage offer and
agree to some type of pension plan in order to convince
the strikers to accept the contract proposals. When his
efforts failed, McFadden went back to the picketing em-
ployees and persuaded them to accept the final offer
which they had previously rejected. McFadden candidly
testified that he felt the employees could gain nothing
more by the strike.
When these factors are considered, it defies logic to
think that McFadden would have attempted to impose
conditions on the employees' acceptance of the Respond-
ent's final terms for a new collective-bargaining agree-
ment. For this reason, I credit McFadden's version of his
statements to Morgan on November 29 following the ac-
ceptance of the Respondent's proposals by the employees
that "we have a contract." I further find his statement
that the employees were ready to return to work imme-
diately was nothing more than an unconditional offer on
behalf of the striking employees to abandon the strike
and cease withholding their services from the Respond-
ent. My conclusions in this regard are reinforced by the
Union's mailgram accepting Respondent's terms for a
new agreement and making an unconditional offer on
" James W. Whitfield, d/b/a Cutten Supermarket, 220 NLRB 507
(1975) Windham Community Memorial Hospital and Hatch Hospital Cor-
poratrion 230 NLRB 1070 (1977), enfd. 577 F.2d 805 (2d Cir. 1978); Va-
tional Car Rental System, Inc.. Car Rental Division, 237 NLRB 172 (1978),
enforcement denied 594 F.2d 1203 (8th Cir. 1979).
behalf of the strikers to return to work. I deem it unnec-
essary here to determine whether the Respondent had or
had not received the mailgram. It is clear from the copy
in evidence that the mailgram was sent through the
Western Union office on November 29. What is impor-
tant here is that the mailgram merely set forth in a more
precise fashion the acceptance of the Respondent's final
terms and the unconditional offer for the striking em-
ployees to return to work, as had been expressed previ-
ously by McFadden to Morgan that morning in another
manner.
In these circumstances, I find Morgan's and Liebrich's
testimony that McFadden attached conditions to the
Union's acceptance of the Respondent's final terms to be
unpersuasive. It is apparent from the events that took
place during the strike that McFadden realized the strike
had no serious economic impact on the Respondent's op-
eration and the Union was reduced to ending it on the
Respondent's terms. To suggest that McFadden then
placed conditions, one of which had been steadfastly re-
jected by the Respondent throughout the negotiations,
on the Union's acceptance of the Respondent's final offer
is as unrealistic as the Respondent now asserts the
Board's principle to be regarding the ratio of union sup-
port among strike replacements.
In view of the above, I find that on November 29 the
Union unconditionally accepted the Respondent's final
terms for a new agreement and made an unconditional
offer on behalf of the striking employees to return to
work. That the Respondent's officials chose to interpret
McFadden's statements as imposing conditions on the
Union's acceptance of the contract terms simply under-
scores the fact that at that point the Respondent's offi-
cials felt they could now rid themselves of the Union
completely. I further find that upon the Union's accept-
ance of the Respondent's final offer the parties were
bound by the terms of the new agreement even though it
had not as yet been reduced to writing.
Therefore, when the Respondent formally withdrew
recognition of the Union on December 3, it was during
the term of the newly negotiated agreement and at a
time when it was not lawfully permissible for Respond-
ent to do so. Pioneer Inn Associates, d/b/a Pioneer Inn
and Pioneer Inn Casino, 228 NLRB 1263, 1264 (1977),
enfd. 578 F.2d 835 (9th Cir. 1978); Seacrest Convalescent
Hospital, 230 NLRB 23 (1977); Shamrock Dairy. Inc.,
Shamrock Dairy of Phoenix, Inc., and Shamrock Milk
Transport Co., 119 NLRB 998 (1957), and 124 NLRB
494, 495-496 (1959), enfd. sub. nom. International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local Union No. 310 v. N.L.R.B., 280 F.2d
665 (D.C. Cir. 1960), cert. denied 364 U.S. 892. Accord-
ingly, I find that by refusing to implement the agreement
arrived at between the parties on November 29, and by
withdrawing recognition of the Union on December 3,
the Respondent violated Section 8(a)(5) of the Act. Pio-
neer Inn, supra.
Having found there was a valid agreement in existence
between the parties on November 29, 1 do not deem it
necessary to treat the Respondent's claim that it had a
good-faith doubt based on objective considerations re-
1346
BELCON. INC.
garding the Union's majority status. As the Respondent
noted in its well-documented brief, the underlying prem-
ise for this contention is that a binding agreement be-
tween the parties had not been concluded. Since I have
found to the contrary, this extensive argument must be
rejected.
Finally, as to the information requested by the Union
on February 22, 1980, and refused by the Respondent, I
find the information to be presumptively relevant and
necessary for the Union to act in its capacity as the bar-
gaining representative of the unit employees. Inasmuch
as the Respondent has not put on any evidence whatso-
ever to rebut this presumption, I find the Respondent's
failure to supply the Union with the requested informa-
tion to be an additional violation of Section 8(a)(5) of the
Act. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432
(1967); Villa Care, Inc., d/b/a Edmonds Villa Care
Center, 249 NLRB 705 (1980).
CONCLUSIONS OF LAW
I. The Respondent, Belcon, Inc., is an employer
within the meaning of Section 2(2) of the Act engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Building Material & Dump Truck Drivers Local
420, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By refusing to implement the terms of the collec-
tive-bargaining agreement consummated between it and
the Union on November 29, 1979, and by withdrawing
recognition of the Union on December 3, 1979, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
4. By refusing to supply the Union with information
requested on February 22, 1980, necessary and relevant
to its function as the exclusive bargaining representative
of the unit employees, the Respondent violated Section
8(a)(5) and (1) of the Act.
5. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent committed unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, it shall be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. Since the Respond-
ent has refused to implement the terms of the collective-
bargaining agreement reached on November 29, 1979, it
shall be ordered to give effect to the terms of that agree-
ment and, in the event the agreement is reduced to writ-
ing, it shall, upon request by the Union, sign the docu-
ment embodying the terms agreed upon between it and
the Union. In addition, the Respondent shall be required
to make whole all employees, including any who may
have since left its payroll, for any losses of wages or
benefits suffered by reason of the Respondent's failure to
give timely effect to the agreement. Said wages or bene-
fits, if any, shall be computed in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest thereon computed in the manner set forth in
Florida Steel Corporation, 231 NLRB 651 (1977).2 How-
ever, nothing herein shall be construed as requiring the
Respondent to revert to wage or benefit levels below
those currently in force. Seacrest Convalescent Hospital,
supra; Harold W. Hinson, d/b/a Hen House Market No. 3,
175 NLRB 596 (1969).
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 13
The Respondent, Belcon, Inc., Los Angeles and Tor-
rance, California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to recognize Building Material & Dump
Truck Drivers Local 420, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive collective-bargaining repre-
sentative of its employees in the bargaining unit set forth
below:
All truck drivers, pumpers, and warehousemen em-
ployed by the Respondent at its facilities located at
2600 South Eastern Avenue, Los Angeles, Califor-
nia, and 1908 Del Amo Avenue, Torrance, Califor-
nia; excluding all other employees, office clerical
employees, sales employees, guards, and supervisors
as defined in the Act.
(b) Refusing to implement the terms of the collective-
bargaining agreement reached between it and the Union
on November 29. 1979.
(c) Refusing to furnish the Union the information re-
quested by that labor organization on February 22, 1980,
which is necessary and relevant to the Union's function
as the exclusive collective-bargaining representative of
the unit employees.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Implement, retroactively to November 15, 1979,
the terms of the collective-bargaining agreement arrived
at between it and the Union on November 29, 1979,
making whole all employees, including any who may
have since left the payroll, for any losses of wages or
benefits suffered by reason of the failure to give timely
effect to the agreement in conformity with the section of
this Decision entitled "The Remedy."
(b) In the event the collective-bargaining agreement is
reduced to writing, upon request by the Union, sign the
a See, generally, /ls Plumnhing & Heating Co. 138 NLRB 716 (1962)
" In the eent no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board the
findings, conclusions, and recommended Order herein shall, as pros ided
in Sec 102 48 of the Rules and Regulations be adopted b the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
1347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
written document embodying the agreement between it
and the Union.
(c) Furnish the Union with the information requested
on February 22, 1980, relating to the bargaining unit em-
ployees.
(d) Preserve and, 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 and relevant to determine the amounts
owing under the terms of this recommended Order.
(e) Post at its Los Angeles and Torrance, California,
facilities copies of the attached notice marked "Appen-
dix."L4 Copies of said notice, on forms provided by the
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Regional Director for Region 21, after being duly signed
by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1348