K & K Transportation Corp., Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 722 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K & K Transportation Corp., Inc. and General Driv-
ers & Helpers Union, Local No. 554, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of Amer-
ica. Cases 17-CA-9152 and 17-CA-9332
January 26, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 4, 1980, Administrative Law Judge
Earldean V. S. Robbins issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting 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 brief
and has decided to affirm the rulings,' findings, 2
and conclusions of the Administrative Law Judge,
as modified herein, and to adopt her recommended
Order, as modified.
The Administrative Law Judge properly found
that, subsequent to the certification of the Union on
November 14, 1978, and contemporaneous with a
series of negotiation meetings in the ensuing year,
Respondent engaged in the following unlawful
conduct away from the bargaining table in viola-
tion of Section 8(a)(l) of the Act: (1) promising in
May 19793 its employees dental and eye insurance
coverage to persuade employees to withdraw their
support for the Union; (2) coercively interrogating
employees in May, June, and August concerning
their own and other employees' support for, and
activities on behalf of, the Union; (3) creating
among its employees in June an impression that
their union activities were under surveillance; (4)
threatening in June that it would close its facility
before it would sign a collective-bargaining con-
tract with the Union; (5) suggesting in late June or
July a meeting with employees to work out their
problems without the Union; (6) soliciting in June
and August employees to ascertain and divulge to
it the union membership, activities, sympathies, and
i In the absence of exceptions thereto, we adopt pro fJorlu he Adiminl-
istrative Law Judge's ruling not to admit into esidence the affidavit of
employee Terry Geho.
2 Repsirtdent has excepted to certain credibility illdings malde by the
Admiistrative Law Judge It is the Board's estlablished policy not to
overrule a administrative law judge's resolutions with respect to credi-
bility unless the clear preponlderance of all of the rele ant evidence coin-
vinces us that the resolutions are incorrect Stlandard l)rv Wull Proldiuct,
In.. 91 NRI 544 (1950), enfld 188 F 2d 362 (3d Cir q951) As idicat-
ed helonw, we have carcfully elanmi lnd the record aild conc lide thailt thlre
is no basis for recrs ing her findil gs
' All dates below refer to 1979 unlies otherwisc specificd
254 NLRB No. 87
desires of other employees; (7) threatening in mid-
September its employees with discharge if they re-
fused to cross a picket line; and (8) threatening in
March 1980 discharge of employees if they testified
adversely to Respondent in a Board proceedings
The Administrative Law Judge also correctly
found that Respondent violated Section 8(a)(5) and
(1) of the Act, (1) by unilaterally instituting on July
I a bonus wage system for its employees without
prior notice to the Union and without affording the
latter an opportunity to bargain thereon s and (2)
by refusing until after the Union began to strike on
November 3 fully to comply with the Union's re-
quest of September 5 for a current list of names,
addresses, and telephone numbers of the employ-
ees.
Finally, the Administrative Law Judge properly
concluded that Respondent violated Section 8(a)(5)
and (1) of the Act by failing and refusing to bar-
gain in good faith with the Union. In finding that
Respondent intended to frustrate bargaining and
avoid reaching a complete agreement, the Adminis-
trative Law Judge relied on the foregoing unfair
labor practices of Respondent and, inter alia, on its
insistence on an overly broad management-rights
clause and unduly restrictive proposals as to griev-
ance and arbitration procedures which were pre-
dictably unacceptable to the Union because they
involved waiving a substantial portion of the
Union's right to represent unit employees. Al-
though the parties met nine times from December
22, 1978, to November 19, 1979, and did finally
agree on a management-rights clause at their penul-
timate session on November 13, there remained
open not only Respondent's proposals as to griev-
ance and arbitration procedures on which Respon-
dent's continued to insist, but also a number of
such issues as cost of living, seniority, discharge,
mileage and hourly rates, holidays, pensions, and
sick leave. In view of the concomitant series of
unfair labor practices, it is clear that Respondent
i Responldert contends as to (2) and (4) that the Admililstralive Lay
Judge erred ill crediting employees Charles Robert Slilh and (uy C(ar-
nmichael on the ground that they testified, contrary to their own logs, that
the sltatetllr llts qtion were made onI Auguht I and June 10, respec-
tixcly As the record lows that Slithl and Carmichael gase approiximate
lather than exact d;ate, c find ino error on the part of the Adnmitistra-
live law Judge
Reponident colttld as ito (7) that, cven if Respondent Safety Director
Ray Clury, ;l adilitted upcl ior, told employee Earl Lee Jles in mid-
Septembher that failure to cros a picket line i the c ent of a strike by the
Utnionl w uld result ill di charge, aid statement should not be deemred
Illawt tll becaluse Respoindent li clairried IIt i ;a itoice to cmiployces
dated Dl)ectc lh r 12 We find in tllril ill this clltelltiiOi becla se the dis-
clinmer as hblaw(dly issued afcr about 3 months during hich the
threat cOulid hax ;i ce) rcis impact the i llpluees
WeC s hall illodilf die reinilltrltldcd Order and nl(otice hy pro ,iding
that, i th e lrs sltetl is rescinded al the Ulliori' request, thIh
etllrp yee arc il ltr nil hligitiiol Iti retuirii t Respondeut the herefius
alilcady rcccicd tlieri rot
722
K & K TRANSPORTATION CORP, INC
was determined to stop short of agreeing to a com-
plete contract. Thus, while the negotiations
stretched out for almost a year, Respondent dem-
onstrated its resolve to undermine the Union as the
bargaining agent of its employees by promising
benefits, creating an impression of surveillance,
threatening to close down rather than sign a collec-
tive-bargaining agreement, threatening discharge of
union adherents, circumventing the Union through
its dealings with the employees, unilaterally imple-
menting a bonus system, and delaying full compli-
ance with the Union's request for information rel-
evant to its bargaining duties. That Respondent's
resolve to undermine the Union continued undi-
minished in the months since their last meeting is
shown by its unlawful threat in March 1980 to dis-
charge any employee who testified adversely to it
in a Board proceeding.
Accordingly, because of Respondent's persistent
efforts to weaken and circumvent the Union, par-
ticularly its threat to close down its facility rather
than sign a collective-bargaining contract, and its
insistence on grievance and arbitration procedures
so restrictive as to strike at the heart of the Union's
representative status, we adopt the Administrative
Law Judge's conclusion that Respondent did not
intend to reach or sign a complete collective-bar-
gaining agreement and hence violated Section
8(a)(5) and (1) of the Act by its failure to bargain
in good faith with the Union. 6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
K & K Transportation Corp., Inc., Omaha, Nebras-
ka, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(d):
"(d) Upon request of the Union, rescind the
bonus wage plan without requiring employees to
return to Respondent benefits they received since
July 1, 1979."
2. Substitute the attached notice for that of the
Administrative Law Judge.
6 The Hoard agrecs wslth the Administrative I.a, Juldge hat Rpoii-
dent iolated Sec 8(a)(5) by engaging in surface bargaining We base this
conclusion on Respondent's contract proposals as ies:ed in the context
of the extensive iolalions of the Act which occurred hile negotiations
were ongoing We d nT1t, hoCstcr, rely o Rspondent's manageni ll-
rights and subcontracting proposals, since the partic, utilmate] reached
agreement in these areas.
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.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from any and all these things
except to the extent that membership in a
union may be required pursuant to a lawful
union-security clause.
WE WILL NOT do anything that interferes
with, restrains, or coerces our employees with
respect to these rights. More specifically.
WE WILL NOT refuse, upon request, to bar-
gain in good faith with General Drivers &
Helpers Union, Local No. 554, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of
America, regarding rates of pay, hours of em-
ployment, or other terms and conditions of
employment of all employees in the appropri-
ate unit described below.
WE WILL NOT fail or refuse to furnish the
Union, with reasonable promptness, informa-
tion duly requested by it concerning employ-
ees' wages, hours, or terms or conditions of
employment that is relevant to the Union's
collective-bargaining duties including the ad-
ministration of any subsisting contract.
WE Wll.l. NOT unilaterally institute changes
in the wages granted to unit employees with-
out prior notification to the Union, and with-
out affording the Union an opportunity to ne-
gotiate and bargain thereon.
WE WILL NOT create among our employees
an impression that their union activities are
under surveillance.
WE Wl L NOT solicit our employees to as-
certain and divulge to us the union member-
ship, activities, sympathies, and desires of
other employees.
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively interrogate em-
ployees concerning their own and other em-
ployees' support for, and activities on behalf
of, the Union.
WE WILL NOT promise our employees dental
and eye insurance coverage to persuade them
to withdraw their support from the Union.
WE WILL NOT threaten our employees that
we will close our facility before we will sign a
collective-bargaining agreement with the
Union.
WE WILL NOT threaten our employees with
discharge if they refuse to cross a picket line
or if they testify adverse to us at a National
Labor Relations Board proceeding.
WE WILL NOT solicit the complaints and
grievances of our employees concerning their
working conditions and/or promise to improve
such working conditions in order to induce
our employees to repudiate the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL, upon request, bargain in good
faith with the Union regarding rates of pay,
hours of employment, and other terms and
conditions of employment for the employees in
the appropriate unit, and if an agreement is
reached, reduce said agreement to writing and
sign it. The appropriate unit is:
All full and regular part-time over-the-road
truck drivers employed by the Respondent
at its facility located in Omaha, Nebraska,
excluding office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
In connection with the aforesaid request to
bargain and offer to bargain with the aforesaid
Union, we have been notified that it has been
ordered by the National Labor Relations
Board that the certification year of General
Drivers & Helpers Union, Local No. 554, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen &
Helpers of America, as the bargaining repre-
sentative of the unit described above, is ex-
tended for a period of 1 year from the date we
commenced to bargain in good faith with the
said Union in order to give to our employees
represented by the said Union in the above-de-
scribed unit full and complete opportunity to
arrive at a collective-bargaining agreement
with us.
WE WILL, upon request, furnish the Union,
with reasonable promptness, information duly
requested by it concerning employees' wages,
hours, or terms or conditions of employment
that is relevant to the Union's collective-bar-
gaining duties including the administration of
any subsisting contract.
WE WILL notify and afford the Union, prior
opportunity to negotiate and bargain regarding
any contemplated change in the wages of the
employees in the appropriate unit.
WE WILL, upon the request of the Union,
rescind the bonus wage plan which we institut-
ed unilaterally, without requiring employees to
return to us benefits received since July 1,
1979.
K & K TRANSPORTATION CORP., INC.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
These matters were heard before me in Omaha, Nebras-
ka, on March 4 and 5, 1980. The charge in Case 17-CA-
9152 was filed by General Drivers & Helpers Union
Local No. 55, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union and served on K & K
Transportation Corp., Inc., herein called Respondent,
on August 27, 1979. The complaint in Case 17-CA-9152
issued on October 12, 1979, alleging that Respondent has
violated Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended, herein called the Act. The
charge in Case 17-CA-9332 was filed by the Union and
served on Respodent on November 28, 1979. An amend-
ed charge was filed by the Union and served on Respon-
dent on December 19, 1979. The complaint in Case 17-
CA-9332 issued on December 19, 1979, alleging that Re-
spondent has violated Section 8(a)(1) of the Act. There-
after on February 1, 1980, an Order issued consolidating
Cases 17-CA-9152 and 17 CA-9332.
The principal issue herein is whether Respondent,
during the course of contract negotiations, unlawfully in-
sisted to impasse regarding an overly broad management
rights clause and an unduly restrictive grievance and ar-
bitration procedure, unlawfully refused to furnish infor-
mation requested by the Union, and contemporaneously
instituted a unilateral change in wages and engaged in
coercive interrogation, unlawful threats, and other con-
duct violative of Section 8(a)(1) of the Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, I hereby make the follow-
ing.
FINDIINGS OF FACT
1. JURSI)ICIO0N
Respondent, a Nebraska corporation is, and has been
at all times material herein, engaged as a contract carrier
ITh l nanl e lt f Resplidcnl appear as crrected at the hearing.
724
K & K TRANSPORTATION CORP., INC.
from a facility located in Omaha. Nebraska. Respondent,
in the course and conduct of its business operations
within the State of Nebraska, annually purchases goods
and services valued in excess of $50,000 directly from
sources located outside the State of Nebraska, and annu-
ally sells goods and services valued in excess of $50,000
directly to customers located outside the State of Ne-
braska.
The complaint alleges, Respondent admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is now, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill. THI: AI.IGED UNFAIR LABOR PRACTICES
A. Facts
1. The negotiations
On November 14, 1978, the Union was certified as the
exclusive collective-bargaining representative of Respon-
dent's full-time and regular part-time over-the-road
truckdrivers at its Omaha, Nebraska, facility. Negotia-
tions for a collective-bargaining agreement commenced
on December 22, 1978, and continued through Novem-
ber 19, 1979. Initially, Kelvin Berens, an attorney, was
the negotiator for Respondent, and Business Representa-
tive Carl Browning was the negotiator for the Union.
The first negotiation meeting was on December 22.
1978. Browning submitted the National Master Freight
Agreement as the Union's contract proposal. There was
no discussion of this proposal, but the parties agreed to a
second meeting at which time Respondent would submit
a counterproposal.
The second meeting was held on February 5.2 During
this meeting, Respondent submitted a counterproposal
which contained, inter alia, a management rights clause,
a grievance clause without provision for arbitration and
a no-strike no-lockout clause. The management rights
clause reserved to management most aspects of terms
and conditions of employment, "Except as otherwise ex-
pressly and specifically limited or restricted by a provi-
sion of [the] Agreement." This provision further pro-
vides that the reserved rights of management will not be
subject to arbitration under any provision of the Agree-
ment except as thereinafter set forth. The no-strike/no-
lockout clause prohibits "strikes, slowdown or other
work stoppages which shall in any way hinder, delay,
limit or suspend the continuity or efficiency of any ser-
vice of the Company and in the event such work stop-
pages do occur, any discipline of employees involved is
not subject to the grievance procedure and the Union
and/or the bargaining unit members must pay the Com-
pany a fine in an amount equal to the wages due to all
bargaining unit employees for each day of the work stop-
2 All dates hereinafter will be in 1979, unless otherwise indicated
page." The clause also prohibits the observance of any
picket line, lawful or unlawful, established by the Union
if directed at any other employer or any other union and
prohibits any lockout of its employees by Respondent.
Neither the Union's proposal nor Respondent's coun-
terproposal was discussed at the February 5 meeting.
The next negotiation session was held on March 23.
Berens submitted some written modifications to Respon-
dent's original counterproposal. The discussion of this
meeting centered around the Union's proposal. Browning
agreed to modify the wording of the Union's proposal
from language national in scope to language which ap-
plied specifically to the bargaining unit.
Respondent's proposal modifications contained new
proposals for, inter alia, a grievance procedure clause, an
arbitration procedure clause, and a management rights
clause. The grievance procedure clause defines a griev-
ance as any claim (request or complaint) by an employee,
or the Company, regarding the application of the specific
terms of the agreement or any other dispute which might
result or does actually result in a work stoppage, slow-
down, or strike by unit employees. It further provides
that the grievance procedure shall not be used to change
any provision of the agreement or any provision of the
personal rules or policies established by the Employer.
The proposal also provides in section 4 that any griev-
ance pursued beyond step I level of the immediate super-
visor must be written stating, "with reasonable clarity":
The exact nature of the grievance, the act or acts of
commission or omission. the dates of the act or acts,
the identity of the party or parties who claim to be
aggrieved, the identity of the party or parties al-
leged to have caused the grievance, the specific
provisions of the Agreement that are alleged to
have been violated, and the remedy which is sought
The clause further provides, inter alia:
Section I
The grievance and arbitration procedure set forth
herein is designed to preserve harmony and friendly
relations between the Employer and bargaining unit
members. The grievance and arbitration procedure
shall not be used to change any provisions of this
Agreement, or any provisions of the personal rules
or policies established by the Employer.
Section 2
A bargaining unit member shall have the right to
have a Union representative, or any other represen-
tative, participate in any step of the grievance and
arbitration procedure.
Section 6
The Company shall render a written decision
thereon as soon as is reasonably possible but no
later than five (5) calendar days after receipt of the
725
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
written grievance; provided however, that the writ-
ten grievance must conform to the provision of Sec-
tion 4 of this Article in order to be considered by
the Company. In the event the written grievance
fails to conform to the requirements of Section 4 of
this Article the grievance may be disregarded by
the Company, and the Union, its representatives,
agents and members will be precluded from further
pursuing or processing such a grievance.
Section 7
If the Union and employee decline to accept the
Company's decision, the Union may, within five (5)
calendar days, after receipt of such decision by the
grievant, request in writing a conference between
its representative and the Company's President and/
or his designated representative(s). After affording
the Union an opportunity to be heard, the President
or his designated representative shall within three
(3) days, seventy-two (72) hours thereafter, render a
written decision thereon which shall be final and
binding.
Section 8
If the employee wishes to pursue the grievance,
upon receipt of the Company's written answer as
provided for above, the employee shall file a notice
of intention to arbitrate the grievance with the
Company within ten (10) calendar days after receipt
of the Company's answer.
Section 9
No grievance alleging discrimination under the
nondiscrimination Article of this agreement shall be
appealed to arbitration unless the grieving party
shall execute a knowing, intelligent, and voluntary
waiver of his or her right to file charges with any
federal, state, or local agency or in any federal,
state, or local court with respect to said grievance.
If the grieving party does not choose to execute
such a waiver, the grievance shall be ineligible to
proceed to arbitration and the last decision given
under the grievance procedure shall be final.
A procedure is also set forth for grievances initiated by
Respondent, which includes Respondent's right to file a
notice of intention to arbitrate. No such right is given di-
rectly to the Union.
The modified arbitration procedure proposal provides,
inter alia:
Section I
It is understood and agreed that a request for ar-
bitration in order to be valid under this Agreement
must allege a direct violation of the express terms of
the contractual provision in question rather than of
an indirect or implied purpose, it being the intent of
the parties hereto that an arbitration request shall
not be valid which challenges the action taken by
the Company in the exercise of its rights except
where such challenge is based upon a clear, express
limitation thereon.
Section 2
Any grievance involving either the interpretation
or application of a provision of this Agreement or a
disciplinary penalty (including discharge) imposed
during the term of this Agreement upon any em-
ployee having more than one (1) year of continuous
service3 may be submitted to arbitration only after
it has been properly processed in accordance with
the provisions of the grievance procedure and with
prior written mutual agreement of the Union and
the Company as executed by their authorized repre-
sentatives.
Section 5
The expense of the arbitrator shall be paid solely
by the loser of the arbitration. The total cost of any
stenographic record which may be made or tran-
scripts thereof shall be paid by the party ordering
same. This section shall not preclude the parties
from jointly submitting matters to an arbitrator and
splitting his cost accordingly.
Section 6
Since the parties agree that the time allowed to
process grievances is adequate, if there is a request
for arbitration by the union that exceeds the permis-
sable time and/or which seeks to arbitrate a matter
not arbitrable under terms of this Agreement, the
Company may decline to arbitrate such matter until
and unless the matter has finally been determined to
be arbitrable by a court of competent jurisdiction. It
is agreed and understood that no matter will be
considered to be arbitrable unless it is found that
the parties have agreed that the particular matter in-
volved would be arbitrable in light of the provisions
of this Agreement, including this Article. No court
or arbitrator shall or may proceed under any pre-
sumption that a request to arbitrate a matter is arbi-
trable unless it is made so by the terms of this
Agreement.
Section 7
No grievance alleging discrimination under the
nondiscrimination Article of this Agreement shall
be appealed to arbitration unless the grieving parties
shall execute a knowing, intelligent and voluntary
waiver of his or her right to file charges with any
federal, state or local agency or any federal, state or
local court with respect to said grievance. If the
grieving party does not choose to execute such
waiver, the grievance request for arbitration shall
Rcspolnd cnt's proptosal provides for a 45-day prohalionary period and
that a pl illiolltiry ernplolco may he discharged at the sole discretion of
Respondent witholut recourse to the griesanc procedure.
726
K & K TRANSPORTATION CORP, INC
automatically be denied and the last decision given
under the grievance procedure shall be final.
The discharge provision of Respondent's modified pro-
posal provides, inter alia:
Section 3
Should the parties agree to arbitrate any case in-
volving employee discipline, including discharge for
cause, the arbitrator shall have no power, authority,
or justification to fashion a remedy of his own or to
modify the penalty imposed by the Company unless
he shall find by a clear preponderance of the evi-
dence that under all the circumstances the penalty
imposed was excessive, unreasonable, and an abuse
of discretion.
The management right clause in Respondent's modi-
fied proposal provides:
MANAGEMENT RIGHTS.
Section 1
The management of the Company's business and
the direction of the working forces, including the
right to plan, direct and control operations, hire.
suspend or discharge for proper cause, transfer or
relieve employees from duty because of lack of
work or for other legitimate reasons (subject to the
terms and conditions of this Agreement), the right
to study and introduce new or improved production
and distribution methods, or facilities, and the right
to establish and maintain rules and regulations cov-
ering operations are all vested exclusively in the
Company, provided that it will not be used for pur-
poses of discrimination against any member of the
Union.
Section 2
It shall be understood that those individuals des-
ignated as supervisors are not part of the bargaining
unit and the union contract shall in no way dictate
or infer what duties they shall or shall not perform.
In particular, they may assist bargaining unit em-
ployees to maintain a continuous flow of work.
Section 3
The right to demote, discipline, or discharge em-
ployees shall remain in the discretion of the Compa-
ny, except that such discipline or discharge will
only be imposed for just cause. The Company shall
have the right to adopt reasonable rules and regula-
tions in accordance with the contract, which shall
become effective when posted and shall have the
right to impose discipline for violation thereof in-
cluding the right of suspension or discharge.
There was no modification of Respondent's previously
proposed no-strike/no-lockout clause.
During the course of the March 23 meeting, Browning
requested the names and addresses of unit employees. By
letter dated May 10, Berens transmitted to Browning a
seniority list, but no addresses. Thereafter, Browning
telephoned Berens and told him that he received the list
and renewed his request for names, addresses, and tele-
phone numbers.
In late May, after being notified by unit employees
that a new pay scale was being implemented, Browning
telephoned Berens to inguire as to details of this change
in pay scale. According to Browning when he made his
inquiry, Berens said he had sent Browning a copy of the
proposal change in April and since Browning had not re-
plied, Respondent was going to implement the change.
Berens further said they had delayed implementation
until July. Browning said he did not receive the informa-
tion. Berens agreed to send a copy. Berens testified in
substantial agreement, except that according to him, he
told Browning they could discuss the matter in later ne-
gotiations, or if the Union wanted Respondent to rescind
the plan, it would do so. Browning responded, "O.K.
send it to me. If I have problems I will talk to you."
Browning did not specifically deny this testimony.
Browning attempted to schedule a negotiation session
but Berens was busy with strikes so they were unable to
schedule a meeting. Browning requested a seniority list
containing names, addresses, and telephone numbers.
On or about July 7, Browning received a letter from
Berens dated July 5, the body of which reads:
Enclosed please find a letter and memorandum dis-
cussing changes which have recently been imple-
mented at K & K Transportation. As you can see
from the date, I first notified you about these pro-
posed changes in April. Because we did not hear
from you by April 25, 1979, we assumed you have
no objections. However, to make sure that you had
ample time to respond we delayed the implementa-
tion of this program until July 1, 1979.
In light of these fact, I feel it is clear that we were
acting within our rights when we implemented this
program. If, however, you would like to discuss
this matter further please feel free to contact me.
Enclosed with this letter was a letter dated April 16,
addressed to Browning from Berens. The body of the
April 16 letter reads:
Enclosed please find some proposed bonus systems
which we would be interested in implementing at K
& K Transportation Co. We, of course, would be
happy to negotiate with you about these proposed
changes. If you would like to discuss these changes,
please feel free to contact me.
If I do not hear from you by April 25, 1979, 1 will
assume that you have no objection to the proposed
changes exactly as they have been stated in the en-
closed memorandum. If I do not hear from you, I
will be implementing these changes on May 1.
If you have any questions, please feel free to con-
tact me.
Also enclosed was a copy of a bonus pay plan which
provides:
727
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Effective May 1, 1979
In order to reward our drivers for making a superi-
or effort in the performance of their work, we are
installing a bonus system to show our appreciation.
Our mileage pay of 17 cents per mile solo and 20
cents split for team, plus 1/2 cent for lead driver,
will remain the same. Then in addition, the follow-
ing bonuses per trip will be paid when the require-
ments are met specified below.
Each driver will receive 1/4 of a cent (bonus) for
each mile driven:
If trip is made accident free and no damage is in-
curred to tractor-trailer-cargo. (This damage in-
cludes tires and mud flaps, so check before you
leave to make sure mud flaps are on.) Remember to
check tires every 200 miles and if tire is flat, slow
down to 30 MPH until you reach service area to
have it changed or repaired.)
If you leave terminal as scheduled. (There will be a
time clock to punch your trip envelope prior to
leaving.) Should there be delays such as mechanical
or late loading, dispatch will be adjusted. All depar-
tures will be scheduled to leave between 9:00 AM
and 10:00 AM in mornings, and 3:00 PM and 4:00
PM in afternoons. You must depart by 10:00 AM or
4:00 PM to qualify.
If all deliveries are made on time on the out-going
trip, and check calls are made every day between
8:00 AM and 10:AM, starting the day after you
leave. Verified mechanical or adverse weather con-
ditions will not penalize you as long as we are ad-
vised of them immediately.
If return (back-haul) is picked up as scheduled and
delivered as scheduled, and check calls are made
each day between 8:00 AM and 10:00 AM. If loads
are returned to our terminal, trailers must be discon-
nected and parked per instructions, and tractor
parked as per instructions.
If at the end of each trip all paper work is turned in
correct and signed the same day of your arrival.
This includes repair list for tractor, repair list for
trailer, logs, bills, to-to sheet, keys, and etc.
If trip is made with no personal money advanced.
Each trip is checked out with $60.00 to take care of
minor truck expenses like tire repairs, motel, etc.
This is company money-not your money-so if
any money is advanced in excess of $60.00 and you
don't have receipts to cover the additional, you will
be charged as a personal advance. Personal ad-
vances additionally cost you $5.00 plus phone cost.
Compliance with these simple requirements (which
actually are your job to do anyway) means that solo
drivers can make 18-1/2 cents per mile and teams
can make 23 cents split, with lead driver getting an
additional 1/2 cent.
The bonus plan was implemented on July 1.
The next negotiation session was held on August 13.
The bonus plan was not discussed, Browning presented
the Union's modified proposal. For the first time there
was sustantive discussion of proposals. They went
through the Union's proposal article by article and dis-
cussed certain of the articles. At the conclusion of the
meeting, they agreed that Berens would contact Brown-
ing on August 16 to either confirm a tentatively sched-
uled meeting for August 17 or to set another date. Fol-
lowing Berens' failure to telephone him on August 16,
Browning telephoned Berens' office on August 17. He
was informed that Berens was no longer associated with
the firm and that another attorney with the firm, Arthur
Carter,4 would be negotiating on Respondent's behalf.
The next negotiation session was held on August 24
with the aid of a mediator from the Federal Mediation
and Conciliation Service. Carter represented Respondent,
and Browning and Tom McFarland, secretary-treasurer
of the Union, represented the Union. McFarland assumed
the role of principal negotiator for the Union. Carter
and McFarland gave statements of position, and McFar-
land indicated what agreements had already been
reached. They then proceeded to go through the Union's
modified proposal, item by item. They also discussed
some of Respondent's proposals and reached agreement
on several items.
The next negotiation session was on August 28.
McFarland gave Carter a copy of the charge herein,
which was filed on August 27. He stated that in view of
the unfair labor practice charges, he did not think the
Union was obligated to continue bargaining, but he was
willing to meet to try and reconcile their differences. Re-
spondent submitted its second counterproposal, which
was discussed article by article. The only change from
its previous proposal, which is pertinent herein, is the ad-
dition of a section to the management rights clause, and
a successors, assigns and new operations clause. Also in-
cluded was the subcontracting clause, previously pro-
posed in Respondent's February 5 proposal. These
clauses read:
ARTICLE 2. SUCCESSORS, ASSIGNS. AND
NEW OPERA TIONS
Section 1. This Agreement shall apply only to K
& K Transportation Corp., Inc., Omaha, Nebraska.
This Agreement shall not apply to K & K Trans-
portation Corp.'s entities, operations, or facilities
purchased by the Company, or to new entities, op-
erations, or facilities set up by the Company.
Section 2. In the event of the Company's dissolu-
tion, there shall be no contingent liabilities on the
part of the Company to the Union or its members
to the Company.
Section 3. This Agreement shall not be binding
upon any successor or assignee of the Company.
ARTICLE 3. MANA GEMENT RIGHTS
Co-counsel for Respondent in this matter
' rhis was the last negotiation session attended by Browning.
728
K & K TRANSPORTATION CORP., INC
Section 4. All the rights heretofore exercised by the
Company or inherent in the Company as the owner
and operator of the business or as an incident to the
management thereof and not expressly contracted
away by specific provision of this Agreement are
retained solely by the Company and may be im-
paired only with the written consent of the Compa-
ny.
ARTICLE 4. SUBCONTRACTING
It is understood by both parties that, for the
Company to successfully operate the business, con-
tracting and/or subcontracting of work may be nec-
essary from time to time. It is, therefore, agreed
that the Company may, within its exclusive discre-
tion, engage contractors and/or subcontractors to
help meet the demands of the business, provided,
however, that the Company will endeavor to utilize
its own employees whenever practical. In any
event, the Company agrees to give the Union one
(1) week's advance notification of work it will con-
tract out.
At the outset of the meeting, according to McFarland,
he indicated that he felt negotiations had been unduly
protracted and expressed his desire that they not be pro-
longed further. He also expressed displeasure with Cart-
er's letter to him detailing what had occurred during the
August 24 meeting. McFarland said he had no intentions
of conducting dual negotiations-one at the bargaining
table and another in writing. Carter replied but McFar-
land does not recall what he said. McFarland further
said that Carter was being picayunish and was dealing in
semantics.
They then proceeded to discuss Respondent's propos-
al. According to McFarland, Article 2. Successors, Assigns
and New Operations was submitted in response to the
Union's proposal that the agreement would survive any
transfer of company title or interest. He rejected Respon-
dent's proposal because its intent was the direct opposite
of the Union's proposal. Article 3. Management Rights
was discussed. Carter said the Union was not necessarily
opposed to a management rights clause. However, he re-
jected Respondent's proposal as one which essentially
negated the other provisions of the contract, 6 Carter said
the clause had to be included in the Agreement, that he
felt that what it set forth were the prerogatives of man-
agement.
McFarland also rejected Article 4. Subcontracting as net
affording sufficient protection of the bargaining unit. He
does not recall any comment from Carter as to this arti-
cle. The Union's subcontracting proposal provides that
no unit work will be subcontracted unless otherwise pro-
vided in the agreement. It further sets forth the condi-
tions under which subcontracting is permitted, including
some instances of overflow work, and according to cer-
tain past subcontracting practices. It further provides
that owner operators and personnel utilized on a regular
6 The union proposals contained no management rights clause At
some point during the pre-November negotiations, McFarland indicated
that he thought the portion of the section up to the parentheses as
proper management rights., and he had no objections to that portion
basis, which has been supplied by a labor contractor to
perform permissible suhcontracted work, are to receive
the wages, hours, and general working conditions pro-
vided in the contract.
As to Article 12. No-Strikes/No-Lockout, McFarland
said the Union simply could not live with that language
and that it had to have the provision it proposed, that it
shall not be a violation of the agreement nor cause for
discharge or disciplinary action if an employee honors a
primary picket line, including those established by the
Union and those established at Respondent's place of
business. Carter insisted that Respondent had to have the
provision it proposed.
As to the grievance procedure and the arbitration pro-
cedure clauses, McFarland took the position that the
procedures were too lengthy, that the arbitration proce-
dure did not encompass prompt, expeditious treatment
and that it precluded any arbitration if Respondent re-
fused to submit it to arbitration. McFarland also raised
the issue of the proposal's requirement of a waiver of the
employee's rights to file charges with Governmental
agencies as a condition precedent to arbitration. He said
he did not know whether the Union had a right to waive
such right. Carter mentioned the Gardner-Denver deci-
sion,7 a court case which he contended gave the parties
the right to negotiate such a provision. McFarland said
he saw no way that case would protect the Union from
any legal action. Carter asked if McFarland would pro-
pose language that would indentify the Union, and if the
Union would agree to such a clause including indentifi-
cation language.
At this point, McFarland telephoned the Union's attor-
ney and posed this legal question to him. The attorney
advised him that the Union had no right to make such
waiver and might subject itself to unfair representation
charges. Then Carter spoke to the union attorney at
some length on this issue. According to McFarland,
there was considerable discussion of the proposed griev-
ance and arbitration procedures which he does not
recall. He thinks that wages were mentioned, that he
commented that Respondent's wage proposal was simply
a statement of its earlier unilateral wage change and pro-
vided for an increase in wages. However, he is not sure
whether this remark was made on August 28, or at a
later meeting. Some agreements were reached at this
meeting, including one on checkoff of union dues.
The next negotiation session was held on September 5.
Respondent submitted several additional proposals, in-
cluding one on wages. None of the proposals changed
those discussed above. Respondent's wage proposal pro-
vides:
AR ICLE 32. WAGES
Section 1. Mileage Rates
(a) Mileage rates for single operators-$.17/mile.
(b) Mileage rates for two-man teams, first man,
.105/miles, second man, .100/mile.
7 A.4rundler Gardner-Denver Co., 415 US. 36 (1974)
n Apparcnt Ithe comment as made at a later date since Respondent
did lot submit a wage proposal until September 5
729
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 2. Bonuses per trip will be paid . . [as
set forth in the enclosure with Berens' July 5 letter.]
* * *
ARTICLE 41
MILEAGE AND HOURL Y RATES
Hourly Rates of pay as follows:
Section 5. Employees shall be paid drop pay as
follows: Ten dollars ($10.00) for the first drop and
five dollars ($5.00) for every drop thereafter on out-
bound loads only. There is no pickup pay.
Section 6. Breakdown pay shall be provided after
the first twenty-four (24) hours. Each driver will be
allowed $2.25 for each hour down, up to a maxi-
mum of ninety-six (96) hours.
The Union's wage proposal provides an hourly rate
for drop, pickup, layover and breakdown pay. It further
provides:
ARTICLE 27
COST OF LIVING
All employees covered by this Agreement shall
be covered by the provisions of a cost-of-living
allowance, as set forth in the Section.
Effective October 1, 1979, April 1, 1980: October
1, 1980, and April 2, 1981, a semi-annual cost-of-
living adjustment will be paid based on the formula
of I per hour or .25 mills per mile for each .3 point
increase in the Consumer Price Index . . . and shall
become part of the base rate for all purposes.
The October 1, 1981 cost-of-living adjustment
will be deferred and become effective April 1, 1982
when it will be paid prospectively along with the
cost-of-living adjustment effective April 1, 1982 and
all COLAs will be part of the wage base effective
April 1, 1982.
ARTICLE 40
PAID-FOR TIME
Section 1. General: All employees covered by this
Agreement shall be paid for all time spent in the
service of the Employer. Rates of pay provided for
by this Agreement shall be minimums. Time shall be
computed from the time that the employee is or-
dered to report for work and registers in and until
the time he is effectively released from duty. All
time lost due to delays as a result of over-loads or
certificate violations involving federal, state, or city
regulations, which occur through no fault of the
driver, shall be paid for. Such payment for driver's
time when not driving shall be the hourly rate.
* * * * *
Effective 4/1/79-
Effective 4/1/80-
Effective 4/1/81-
$6.00 per hour
6.50 per hour
7.00 per hour
Mileage Rates Single Operator as follows.
Effective 4/1/79-
Effective 4/1/80-
Effective 4/1/81-
18.50
19.25
20.00
Mileage rate Two-Man Operation and Split for each
driver as follows:
Effective 4/1/79-
Effective 4/1/80-
Effective 4/1/81-
23.50-11.75
24.25-12.125
25.-12.50
The parties adhered to their previous positions on the
management rights, subcontracting and no-strike propos-
als. There was considerable discussion of the grievance
procedure. Carter agreed to delete that portion provid-
ing that the grievance and arbitration procedure shall not
be used to change any provisions of the personal rules or
policies established by Respondent. McFarland objected
to the provision that an employee shall have the right to
have a union representative or any other representative
participate in any step of the grievance and arbitration
procedure. IHis position was that the Union wanted no
third party involved. With some modification, they
agreed on section I which set forth the information re-
quired in a written grievance.
They discussed the time limits in the grievance proce-
dure proposal but reached no agreement. McFarland
argued that the language of Respondent's proposal actu-
ally negates any grievance being filed and that once
filed, at any state of the grievance procedure it could be
nullified without a fair and impartial hearing. They then
agreed to delete the last sentence of section 6, as to sec-
tion 7, he argued that a grievance might never reach the
point of arbitration because the provision set no time
limit for Respondent's president or designated represen-
tative to hear a grievance. No agreement was reached on
this section or any other section of the grievance proce-
dure, except as set forth above. As to the arbitration pro-
cedure, McFarland said he felt that the cost of an arbi-
tration should be borne jointly. Carter said he would
rather go with the loser theory. No agreement was
reached on this article.
McFarland testified that he was having difficulty pin-
pointing the meeting but he thinks it was at the Septem-
ber 5 meeting that Carter stated that this was Respon-
dent's final wage offer.9 At the end of the meeting,
Carter asked if McFarland would say they were at an
impasse. McFarland said no, he thought Carter was en-
' From a consideration o the totality of McFarland's testimony, I find
that this occurred at the September 5 meeting. His difficulty was in sepa-
rating the August 28 and September 5 meetings. Respondent's wage pro-
posal was not submitted until September 5
730
K & K TRANSPORTATION CORP., INC.
gaging in surface bargaining. Carter replied, "You are
pretty shrewd." McFarland then said since Respondent's
final wage proposal merely stated what was in effect and
in view of their differences on other items, any further
bargaining would be superfluous unless Carter was will-
ing to engage in meaningful negotiations.
McFarland also requested the names and addresses of
unit employees so that the Union could submit Respon-
dent's offer to them or arrange a meeting to vote on it.
Carter said he did not want to do that. The information
was subsequently furnished after the November strike
commenced. A list of names without addresses was fur-
nished on October 3. All other information requested by
the Union during the course of negotiations was pro-
vided in a generally timely fashion.
Unit employees went on strike on November 3. There-
after, negotiation meetings were held on November 13
and November 19. At the November 13 meeting, the
parties reached agreement on management rights and
subcontracting clauses. There was some movement on
the grievance procedure and arbitration procedure arti-
cles, but agreement was not reached as to the entire arti-
cles. There was also some modifications of positions on
November 19. At the time of the hearing herein, there
has been no negotiations since November 19, and the
strike was still in progress.
2. Contemporaneous conduct away from the
bargaining table
Driver Guy Carmichael testified that around May,
Safety Director Ray Clary, an admitted supervisor, told
him that Respondent had provided dental and eye insur-
ance for the warehouse employees and as soon as the
Union was out of the way, he would provide such insur-
ance for the drivers also. Carmichael further testified
that in May, Respondent's president, Everett Alger,
made an almost identical statement to him. Both Clary
and Alger deny these conversations.
Driver Robert Honeywell testified that in mid-May, he
and Clary were discussing some of the problems they
had with the trucks. Honeywell remarked that if the
Union was there, perhaps they could get some of these
problems with equipment solved. Clary asked what Hon-
eywell thought about the Union. Honeywell said it had
good and bad points. Clary said he thought driver Bob
Jones was a ringer to get the Union organized in Re-
spondent's facility. Clary then asked if Honeywell was
involved in trying to organize for the Union. Honeywell
said, "No."
Honeywell further testified that on or about May 17,
Clary telephoned him at home and asked if he was ready
to leave. Honeywell said he would be ready by the time
his load was ready. Clary asked if Honeywell had any
telephone calls from anyone at the union hall. Honeywell
said, "No." Clary said, "Okay, are you sure." Honeywell
said, "No, why are you asking me." Clary replied, "be-
cause there is some people down at K & K Transporta-
tion now trying to talk to drivers to try to get them to
stop on their way out of town or to go out before they
leave town to go out to the union hall and sit in on a
meeting out there."
Carmichael testified that around June, in Clary's
office, Clary told him that he understood there was
going to be a meeting in the union hall, that someone
was calling the drivers and he wanted to know if Carmi-
chael had been contacted by this person. Carmichael said
he had not been contacted. Clary asked who was doing
the telephoning. Carmichael said he did not know, he
had not heard anything. Clary denied these conversa-
tions with Carmichael and Honeywell.
Carmichael testified that around June, dispatcher
James Hutchinson, an admitted supervisor, told him they
were holding a meeting at the union hall and he would
like to have Carmichael go to the union hall, observe
who attended the meeting, and then relate to him who
attended the meeting. Carmichael said he was afraid to
do it and he did not have time to go to the union hall.
Hutchinson denies these conversations.
Carmichael testified that around June 10, Alger told
him that several drivers had complained that Carmichael
had approached them on the road and threatened them
with the Union. Alger said he would not tolerate this,
that he would close his doors before he would sign any
contract, and that there would be no damn union run-
ning his business.
Carmichael also testified that on or about July 7, he
heard Clary tell driver Terry Geho that he would like to
find Geho a job elsewhere, that he really did not need
Geho in the Company anymore because he was causing
a lot of problems, and that they would rather have him
leave.
Honeywell testified that in late June or early July,
Clary told him and driver Kenny Hewlett that Alger
would like to talk to the drivers in small groups to see
what they could do to work out their problems without
a union. Clary admits that he notified drivers in late June
or early July that Alger wanted to talk to them. He
denies giving them a reason why Alger wanted to speak
to them.
Driver Charles Robert Smith testified that around
August, he remarked to Hutchinson that it looked as if
the Union was going to move in again. Hutchinson
asked, "who was stirring it up, Meyers, Carmichael, and
Honeywell?" Smith said none of the three had said any-
thing to him in regard to the Union. Hutchinson denies
this conversation.
On August 12, Geho, Honeywell, and Smith were
seated in a bar close to Respondent's facility when John
Duncan, an admitted supervisor of Midwest Supply, Inc.,
a business owned by Alger and located in the same facili-
ty as Respondent, joined them. Smith and Honeywell
testified that Duncan asked them if there was going to be
a strike, and wondered how a strike would affect him.
Honeywell said he did not know. Duncan asked if they
thought the Union had enough people to get a strike
vote. Geho said he thought so. Duncan said he did not
think Alger would ever sign a union contract. A few
minutes later, Hutchinson joined them. He referred to a
union meeting notice which was posted in the bar and
asked if they were going on strike. One of the drivers
said they did not know. Geho said they would if Re-
spondent did not sign a contract. They discussed some of
731
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the drivers' complaints such as loading and unloading,
pay, downtime pay, and deadheading. Hutchinson said if
the drivers got together and worked out a plan and pre-
sented it to Alger, they could work out their differences
with Alger, without the Union.°
Smith testified that sometime thereafter he again dis-
cussed with Hutchinson the driver's complaints. At that
time Hutchinson said he did not think Alger would ever
sign a contract without a no-strike clause.
Driver Earl Lee Jones testified that in mid-September
when he returned from a trip, he told Clary that he had
heard about a strike at Respondent's facility and asked
what was going on. Clary said it was a wildcat strike by
two or three drivers which was not sanctioned by the
Union. Clary further said Alger had told him that if
there was a strike by the Union anyone who did not
cross the picket line would be discharged.
I credit Carmichael and Honeywell as to their conver-
sations with Clary. They impressed me as honest, reliable
witnesses who testified in a truthful manner. I found
Clary to be less than candid. Thus, he denied discussing
the strike with employees just as he denied discussing in-
surance and the Union. Yet later, he admitted that em-
ployees asked him if the first strike was sanctioned, and
he admitted talking to Geho and Vesper regarding the
strike or plans to strike. Further I do not credit his
denial that he ever told any of the employees why Alger
wanted to meet with them in small groups. I find it un-
likely that in relaying this information to every driver in
the unit, he did not once mention the reason for the
meetings, particularly if the reason was as innocuous as
he claims-to view films. I also credit Jones as to his un-
denied testimony regarding Clary's statement that any
employee who did not cross the picket line would be dis-
charged.
I credit Carmichael as to his conversations with Alger.
The only conversation which Alger specifically denied is
the one regarding eye and dental insurance. Respondent
introduced documents to show that Carmichael, Smith,
and Honeywell were out of town on the dates of certain
alleged conversations with Alger, Clary, and Hutchin-
son. However, I note that the dates to which these em-
ployees testified were all approximate dates and I find
such evidence insufficient to discredit their testimony.
I also credit Honeywell and Smith as to the August 12
converation in the bar. Their testimony is mutually cor-
roborative. I also note that Duncan was not called to tes-
tify as to this conversation and that Hutchinson does not
actually deny having such a conversation. He merely
denies being in that bar on August 12, a Sunday. Again
the employee's testimony was as to an approximate date
and I find it does not affect credibility if the date is sev-
eral days off. Further, I credit Smith, whom I find to be
an honest, reliable witness, as to other conversations
with Hutchinson. Again Hutchinson merely denies that
he had a conversation with Smith on a particular date.
I also credit Carmichael, whom I have found above to
be an honest witness as to the conversation during which
Hutchinson asked him to observe, and report who at-
tended a union meeting.
'O This is a composite of the testimony of Honeywell and Smith,
which I find more accurately reflects what was said
The March 3, 1980, converation between Alger and
Robert Vesper, Jr.
Robert Vesper, Sr., was subpenaed to appear and tes-
tify at the hearing herein. This summons made it impossi-
ble for him to leave on March 3 on an assigned trip.
Robert Vesper, Jr., who drives with his father, was not
going on this trip because of illness. However, after his
father was subpenaed he decided to take the load. Robert
Jr., testified that on the morning of March 3, his father
told him that Alger had telephoned and said they were
having someone else take the load. Robert, Jr., then
went to Respondent's facility and asked Clary why he
could not take the load. Clary did not answer. Robert,
Jr., then made the same inquiry of Hutchinson. When
Hutchinson also would not answer he asked for Alger.
Alger had not arrived so Robert, Jr., waited for him for
about an hour. When Alger arrived, Robert, Jr., asked
him why he could not take the load. Alger said it was a
two-man load. Robert, Jr., said that on the previous day,
his father was given permission to take the load solo and
accused Respondent of permitting his father to go solo
to get him out of town. He then said, "just because you
got something against my dad, why do I have to suffer
for it." At this point, according to Robert, Jr., Alger
slammed some papers on the desk and said, "any son-of-
a-bitch that's going to court against me, I don't need
them working for me." Alger further said that Robert,
Sr., might as well go out and walk the picket line be-
cause he no longer worked for Alger. Robert, Jr., said,
"Why do I have to suffer for that." Alger said, "I have
nothing against you but as far as your father is con-
cerned, he no longer works for me. But if you want to
go cut I'll get you a load." They then went to the dis-
patcher's office and Alger asked about a load for Robert,
Jr. Robert, Jr., was not subpenaed until March 4.
Alger admits that he had a conversation with Robert,
Jr., on March 3, regarding the refusal to permit Robert,
Jr., to make a trip solo, however, his account differs
from that of Robert, Jr. According to Alger, "Bobby
Vesper asked if he had a job down there because of
some misunderstanding."'' I told him he had a job as
long as he wanted it down there, that he was an excel-
lent driver, and we had absolutely no problems with his
driving abilities. He specifically denies telling Robert, Jr.,
anything to the effect that no one who testified in court
against him was going to work for him. He further testi-
fied that Robert, Sr., did refuse a load on March 3, stat-
ing that his brother was critically ill. Robert, Sr., did not
testify. 1 2
I credit Robert, Jr. Alger made no attempt to testify in
detail as to the conversation. Rather, he testified that
Robert, Jr., asked if he had a job because of some "mis-
understanding." He did not elaborate on what was said
as to the misunderstanding. Also, I find it unlikely that
Robert, Sr., told Alger that he could not take the trip be-
'' Alger gave ilo details as to this misunderstanding
12 I do not find it significant, as suggested by Respondent, that Robert,
Sr.. did not testify. t is not unusual for counsel to decide not to adduce
testimony during its case in chief from a witness who has been subpen-
aed. There is nothing in the record to refute Robert, Jr's testimony that
he sas the subpena
732
K & K TRANSPORTATION CORP., INC.
cause of his brother's illness, inasmuch as Alger would
obviously be aware of his attendance at the hearing
herein. Further, Alger admits that shortly following this
conversation he received a telephone call from Robert,
Sr., who was very irate. Although Alger claims that
Robert, Sr., was incoherent, he admits that Robert, Sr.,
asked whether he still had a job. Alger did not testify as
to his reply. This telephone conversation is consistent
with Robert, Jr.'s version of what was said.
B. The Affidavit of Terry Geho
During the course of the hearing herein, I reserved
ruling as to whether to admit into evidence the affidavit
of Terry Geho, a driver employed by Respondent at
times material herein. It is undisputed that Respondent
was properly notified of the General Counsel's intent to
offer the affidavit. However, Respondent objected to the
admission of the affidavit, citing prior holdings of the
Board that it will not accept affidavits in lieu of testimo-
ny unless the witness is either deceased or so seriously ill
that the taking of oral testimony poses a threat to the
witness' health, since such affidavits do not afford an op-
portunity for cross-examination or the evaluation of de-
meanor. Limpco Mfg. Inc., and/or Cost Products. Inc., 225
NLRB 987 (1976), Sure-Tan, Inc. and Surak Leather Co,
234 NLRB 1187 (1978), West Texas Utilities Company,
Inc., 94 NLRB 1638 (1951).
The General Counsel argues that the affidavit is admis-
sible under the Board's rationale in Alvin J. Bart and Co..
Inc., 236 NLRB 242, 245 (1978), and under Rule 804
(b)(5) of the Federal Rules of Evidence. Although the
Board made clear in Alvin J. Hart that it did not sub-
scribe to a per se rule of exclusion of hearsay, it appears
that the Board tended not to regard the statements there-
in as hearsay since the affiant was a witness at the hear-
ing in that matter, it would seem to be excluded from the
definition of hearsay as an admission under Rule
801(d)(2)(D), and also the statement was admitted with-
out objections. It is not clear from the decision as to the
Board's conclusion as to whether to treat such statements
as depositions, although it appears from Star Kist Samoa,
Inc., 237 NLRB 238 (1978), that the Board is so inclined.
I am unwilling, without a clear statement of position
from the Board, to accept such statements as depositions.
In prehearing investigatory affidavits, Board agents sum-
marize a witness' answer to questions. The question
asked is not included. So, the reader of the affidavit
sometimes does not get the full context of the answer.
Generally the witness' answer is transcribed in the Board
agent's words and witnesses are not always alert to shad-
ings of meaning and are often lax in correcting state-
ments if they generally approximate the truth.
Also, often the witness does not realize that he or she
will be required to swear to the truth of the statement
until the interview has been completed, and the state-
ment read and corrected. This is not to say that an oath
is necessary, it is simply that the solemnity of the oath
will often tend to put a witness on notice that complete
and accurate answers are essential and that corrections to
the statement are important. Once a statement has been
given and corrections made, it is unlikely that the wit-
ness who has been lax will go through the whole prcce-
dure again when it becomes apparent that an oath will be
administered.
I well recognize that some statements in prehearing af-
fidavits are so to the point and unequivical that the
above does not apply. However, this is frequently not
the case. The affidavit is taken for the purpose of deter-
mining whether a case should go to hearing. If there is a
direct credibility conflict as to a critical matter, a com-
plaint issues and resolution is left to the Administrative
Law Judge. Hence, all too often, in taking affidavits,
techniques generally helpful during the examination of
the witness, for arriving at the truth, may not be used.
By this I do not necessarily mean cross-examination, but
rather that a witness be required to testify fully and com-
pletely to the best of his or her recollection as to what
occurred rather than give opinions or summarizations.
In a prehearing investigation, the investigator's pur-
pose of securing enough evidence to determine whether
issuance of a complaint is warranted is somewhat differ-
ent from that of meeting the burden of proof required
during a hearing. The extent of probing is different, and
rightly so. To investigate each case in the detail that is
desirable in preparation of a hearing, would unduly tax
the resources of the Board and is not usually necessary
to a determination as to whether a complaint should
issue. However, this difference does give me pause when
confronted with the question as to whether investigatory
statements of one who is not a witness should be treated
as a deposition.
Fed. R. Evid. Rule 804, provides in pertinent part:
Rule 804.
HEARSAY EXCEPTIONS; DECLARANT
UNAVAILABLE
(a) Definition of unavailability. Unavailability as
a witness includes situations in which the declarant
(5) is absent from the hearing and the proponent
of his statement has been unable to procure his at-
tendance (or in the case of a hearsay exception
under subdivision (b) (2), (3), or (4), his attendance
or testimony by process or other reasonable means.
(b) Hearsay exceptions. The following are not ex-
cluded by the hearsay rule if the declarant is un-
available as a witness:
(5) Other exceptions. A statement not specifically
covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of trust-
worthiness, if the court determines that (A) the
statement is offered as evidence of a material fact,
(B) the statement is more probative on the point for
which it is offered than any other evidence which
733
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the proponent can procure through reasonably ef-
forts, and (C) the general purposes of these rules
and the interests of justice will best be served by
admission of the statement into evidence. However,
a statement may not be admitted under this excep-
tion unless the proponent of it makes known to the
adverse party sufficiently in advance of the trial or
hearing to provide the adverse party with a fair op-
portunity to prepare to meet it, his intention to offer
the statement and the particulars of it, including the
name and address of the declarant.
Counsel for the General Counsel argues that all the re-
quirements of rule 804 have been met. Thus, she argues,
she has made reasonable efforts to secure Geho's appear-
ance at the hearing. She served him with a subpena,
urged him during a telephone conversation to honor the
subpena at which time Geho told her he could not be
served with a subpena if he could not be found and that
he would not testify if he appeared. Thus, she contends,
the unavailable requirements of Rule 804(a)(5) has been
met.
As to the requirements of Rule 804(b)(5), she contends
that the affidavit possesses "equivalent circumstantial
guarantees of trustworthiness" since it was taken at a
time proximate to the events related therein, and was
given under oath to an agent of the Board, and Geho
was an employee of Respondent at the time the affidavit
was given. Further, Geho's affidavit is offered to prove
statements alleged as violative of Section 8(a)(1) of the
Act, which were made during "one-on-one" conversa-
tions between Geho and agents of Respondent. Thus, the
statement is offered as evidence of material facts and
there are no other witnesses, other than agents of Re-
spondent, who could provide testimony with regard to
these conversations.
Finally, counsel for the General Counsel argues as to
the denial of cross-examination:
. . In striking the balance between the denial of
the Respondent's right of cross-examination as a
tool for purposes of impeachment and the admissa-
bility of Geho's affidavit as probative evidence, it is
to be noted that the Respondent was advised in ad-
vance of the hearing of the allegations of the com-
plaint which Geho's affidavit was being offered to
support. Moreover, the agents alleged to have been
engaged in the alleged conduct were present and
gave testimony at the hearing. If the Respondent
desired, it could have elicited denials of the specific
allegations which are raised by Geho's affidavit.
Under these circumstances, it is submitted that the
denial of the Respondent's right to cross-examina-
tion does not result in any significant prejudice to
the Respondent.
I completely reject this argument. The opportunity to
deny an accusation is not the equivalent of the opportu-
nity to cross-examine the accuser. Further, I do not view
rule 804(b)(5) as granting the wide latitude that the Gen-
eral Counsel asserts. The legislative history indicates that
a more restrictive approach was contemplated mainly to
provide for new, and then unanticipated, situations
which demonstrate a trustworthiness within the spirit of
the specifically stated exceptions. The Senate Report
stated at pp 18-20: "It is intended that the residual hear-
say exceptions will be used very rarely and only in ex-
ceptional circumstances. The Committee does not intend
to establish a broad license for trial judges to admit hear-
say statements that do not fall within one of the other
exceptions contained in Rules 803 and 804(4). The resid-
ual exceptions are not meant to authorize major judicial
revisions of the hearsay rule .... "Clearly, judicial re-
straint is contemplated.
I am not sure that the mere fact that an affiant is the
only employee witness to an alleged 8(a)(l) comment or
interrogation is sufficient to meet the requirement of a
determination that "the general purposes of these rules
and the interests of justice will best be served by admis-
sion of the statement into evidence." It appears to me
that to meet this requirement the conduct must constitute
a significant infringement on the rights of employees
which might not be remedied absent the evidence con-
tained in the statement.
However, I find it unnecessary to determine, whether
Geho's statement does meet this requirement, since I
conclude that the requirements of Rule 804(a) are not
met. To meet the unavailable test, a good-faith effort by
the proponent of the statement to obtain the declarant's
presence at hearing is required. See Barber v. Page,
Warden, 390 U.S. 719 (1968). Here Geho was issued a
subpena by registered mail on February 22, 1980. Prior
thereto on February 19, counsel for the General Counsel
advised Geho by telephone that she intended to subpena
him to appear in this matter. Geho responded that he did
not want to be involved, that a subpena could not be
served on him if he could not be found, and even if he
did appear he would keep his mouth shut and would
take the 5th Amendment.
Geho did not appear on March 4, 1980, as required by
the subpena. There is nothing in the record to indicate if
and when he actually received the subpena or whether
his recalcitrance survived receipt of the subpena. 3 Wit-
nesses sometimes express their reluctance to testify in
vivid terms, hoping that by doing so, they will discour-
age any attempts to subpena them. Sometimes witnesses
fail to honor subpenas, thinking that no adverse conse-
quences will flow therefrom as compared to the known
adverse consequences of lost wages and the possibility of
incurring employer enmity. Yet, once enforcement pro-
ceedings are instituted, they testify in a straightforward
manner. Here, the General Counsel made no attempt to
secure a court order compelling Geho's attendance. In
this circumstance, I find that he was not an unavailable
witness, within the meaning of Rule 804. Accordingly,
the General Counsel's Exhibit 11 for identification is re-
jected.
i: The record does not indicate whether he is presently working as a
long distance driver, and, if so, whether he had a trip assignment which
conflicted fwith the hearing
734
K & K TRANSPORTATION CORP., INC
C. Conclusions
I. The alleged 8(a)(1) conduct
I find that Clary's comment to Carmichael in June that
he understood there was going to be a meeting in the
union hall, that someone was calling the drivers, created
an unlawful impression of surveillance of the union ac-
tivities of its employees in violation of Section 8(a)(1) of
the Act. However, I find that the evidence is insufficient
to establish that Clary's comment to Honeywell on May
17 created the impression of surveillance. The comment
is equally susceptible to being understood as an open at-
tempt to secure the attendance of drivers at a union
meeting as it is to being understood as surreptitious ac-
tivity, knowledge of which by Respondent was likely ob-
tained by surveillance.
I find that the interrogation of Honeywell, Carmichael,
and Smith by Clary and Hutchinson as to Honeywell's
own union sympathies and as to the identity of employee
union activists is coercive and thereby violative of Sec-
tion 8(a)(l) of the Act. However, in the context of what
appears to be general speculation as to whether the
Union was going to call a strike and the posted notice of
a scheduled union meeting, I find that Hutchinson's in-
quiry as to whether there would be a strike is not coer-
cive. I find that the inquiry was as to whether the Union
would call a strike not as to whether Honeywell and
Smith would go on strike.
I conclude that the evidence is insufficient to establish
Duncan's status as an agent of Respondent or that his
statement that he did not think Alger would sign a union
contract or his inquiry as to whether the Union had suf-
ficient support for an affirmative strike vote was made in
the presence of Hutchinson. Accordingly, I find that Re-
spondent did not violate the Act by the conduct of
Duncan.
I find that Alger's statement that he would close the
facility before he would sign a union contract is violative
of Section 8(a)(1) of the Act. I also find that the state-
ments of Clary and Alger regarding dental and eye insur-
ance constituted promises of benefit if the employees
withdrew their support from the Union. I further find
that Clary's statement to Jones that employees who did
not cross the picket line would be discharged was viola-
tive of Section 8(a)(l) of the Act. Bartlett-Collins Compa-
ny, 230 NLRB 144, 162 (1977).
Also violative of Section 8(a)(l) of the Act are the
statements of Clary that Alger wanted to meet with the
drivers to work out their problems without the Union
and Hutchinson's statement that if the drivers formulated
a plan to resolve their problems and presented it to
Alger, they could work out their differences without a
union.
Finally, I find violative of Section 8(a)( 1) Alger's state-
ment to Robert, Jr., that anyone who testified against
him could not work for him. Dollar General Corporation,
189 NLRB 301, 307 (1971); D & H Manufacturing Co.,
239 NLRB 393 (1978). However, I find the evidence is
insufficient to establish that Clary's statement to Geho
was violative of the Act. There is nothing in the record
to support an inference that Clary was referring to
Geho's union activities.
2. The unilateral change in wages
Respondent admits that it unilaterally instituted a wage
bonus system on July 1, 1979, and that employees were
notified of the new system in May. However, it contends
that the Union was given prior notice of the change and
was afforded an opportunity to bargain, and that the
Union did not avail itself of this opportunity. Specifical-
ly, Respondent is referring to Berens' letter of April 16
to Browning. rowning creditably testified that he did
not receive the April 16 letter until Berens sent him a
copy on July 5. However, he admits obtaining knowl-
edge of the change from unit employees in May. This, of
course, was after the employees were notified that the
change would be effective as of May 1.
It is well established that an employer's unilateral
change in condition of employment under negotiation is
a violation of Section 8(a)(5) of the Act, for as the Su-
preme Court has stated, it is a circumvention of the duty
to negotiate which frustrates the objectives of Section
8(a)(5) much as does a flat refusal. N.L.R.B. v. Katz, et
al., 369 U.S. 736 (1962). The cases cited by Respon-
dent, 14 that Board precedent requires a union that has
notice of an employer's change in a term or condition of
employment to timely request bargaining in order to pre-
serve its right to bargain on that subject, are distinguish-
able. Here, Respondent made unilateral changes in wages
at a time when contract negotiations were pending, the
Union's wage proposals were on the bargaining table and
Respondent had not made any counterproposals as to
wages. Further, the bonus system seems to track those
situations where the Union in its proposal demanded the
payment of an hourly wage rate. Thus, it seems to be a
direct response to the Union's proposal and to those dis-
satifications which employees had expressed to Hutchin-
son. Frustration of the bargaining process could hardly
have been more direct.
Furthermore, the Union's knowledge of the change
came after the announced effective date. The Board's
concept of the Union's obligation after receiving notice
is based on a concept of being afforded an opportunity to
bargain prior to the unilateral action. Rose Arbor Manor.
a Division of Geriatrics, Inc., 242 NLRB 795 (1979). Here,
the union had no such opportunity. In the circumstances,
I find that by unilaterally instituting a bonus wage
system without affording the Union an opportunity to
bargain, Respondent has violated Section 8(a)(5) and (I)
of the Act.
3. The delaying in furnishing information
It is well-settled that the collective-bargaining repre-
sentative is entitled to information that may be relevant
to its bargaining duties. The Timken Roller Bearing Co. v.
N.L.R.B., 325 F.2d 746 (6th Cir. 1963). Here the union
represents a unit of over-the-road drivers. The mail is the
most reasonable means of communicating with them and
considering the status of the negotiations and the need to
contact employees regarding respondent's "final" offer,
telephone numbers as well as names and addresses were
Cizen .Nattona/l ank of Wi/lmar. 245 NL.Rtt 38 (q97): The Ctvy
Ifopiail o u li L.verpool. Ohio, 234 NLR H 5 ( 197X)8
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relevant to the union's bargaining duties. Furnishing such
information would impose no undue hardship on Respon-
dent. Accordingly, in the circumstances, I find that Re-
spondent violated Section 8(a)(5) of the Act by refusing
to supply the requested information. Rose Arbor Manor, a
Division of Geriatrics, Inc.. supra. The fact that Respon-
dent subsequently furnished the information does not
militate against such a finding. It was not furnished until
several months after the request. Such a delay is unrea-
sonable and in itself conduct violative of Section 8(a)(5)
of the Act. Crispo Cake Cone Company Inc., 190 NLRB
352 (1971).
4. The alleged failure to bargain in good faith
The complaint alleges that Respondent refused to bar-
gain in violation of Section 8(a)(5) of the Act, in that it
insisted to impasse regarding an overly broad manage-
ment rights clause and an unduly restricted grievance
and arbitration procedure. It is well established that the
Board has no authority to, "either directly or indirectly
compel concession or otherwise sit in judgment upon the
substantive terms of collective-bargaining agreements."
Thus, an employer's insistence on a broad-management
rights clause is not illegal per se. N.L.R.B. v. American
National Insurance Co, 343 U.S. 395 (1952): Preterm, Inc.,
240 NLRB 654 (1979). However, the nature of an em-
ployer's proposals are material factors in determining the
employer's motivation. Thus, an intransigent position as
to proposals which are predictably unacceptable to the
Union may indicate a predetermination not to reach
agreement but rather to produce a stalemate in order to
frustrate bargaining and undermine the statutory repre-
sentative. Tomco Communications, Inc., 220 NLRB 636
(1975); San Isabel Electric Services, Inc., 225 NLRB 1073
(1976); Stuart Radiator Core Manufacturing Co., Inc., 173
NLRB 125 (1968).
Here, in addition to the right to direct its work force,
to discharge or otherwise discipline for just cause, the
management rights clause reserves to management the
right to study and introduce new or improved produc-
tion and distribution methods, or facilities, the right to
establish and maintain reasonable rules and regulations
and to impose discipline for violation thereof, the right
to demote employees and to transfer or relieve them
from duty because of lack of work or for other legiti-
mate reasons subject to the terms and conditions of the
agreement. It further provides that all rights inherent in
Respondent as owner and operator of the business or as
an incident to the management thereof, which are not ex-
pressly contracted away by specific provision of the
agreement, are retained solely by Respondent and may
be impaired only with its written consent.
The subcontracting clause provides that Respondent
may, within its exclusive discretion, subcontract work
provided that it will endeavor to utilize its own employ-
ees whenever practical and that it give the Union I week
advance notification of such subcontracting. The succes-
sors, assigns, and new operations clause provides that the
agreement shall not apply to new entities, operations, or
facilities set up by Respondent and shall not be binding
upon any successor or assignee of Respondent.
Viewed in isolation, these provisions, thought not ex-
actly innocuous, are not so broad or unreasonable as to
constitute indicium that Respondent's conduct was de-
signed to frustrate the bargaining process. However,
while not directly providing that action pursuant to the
management rights clause is not reviewable under the
grievance and arbitration procedure, the arbitration
clause provides that in an arbitration involving employee
discipline, the arbitrator shall have no power to fashion a
remedy of his own or to modify the penalty imposed by
Respondent unless he shall find by a clear preponderance
of the evidence that under all the circumstances the pen-
alty imposed was excessive, unreasonable, and an abuse
of discretion. Also precluded is the arbitration of any
grievance alleging discrimination under the nondiscrimin-
ation clause from being submitted to arbitration unless
the grievant executes a waiver of his or her right to file
charges with any governmental agency with respect to
such grievance.
Further, the arbitration clause prohibits arbitration
where at issue is a challenge to action taken by Respon-
dent in the exercise of its rights, except where such chal-
lenge is based on a clear, express limitation thereon. Al-
legations of violations of an indirect or implied purpose
of the agreement are not arbitrable.
In addition, the grievance and arbitration procedure
clause contains provisions which strike at the very heart
of the Union's representative status. Thus, Respondent's
proposal provides only for company and employee initi-
ated grievances and arbitrations and that an employee
shall have the right to have a union representative, or
any other representative, participate in any step of the
grievance and arbitration procedure. If not requested by
the aggrieved employee, the Union has no right of par-
ticipation in the initial grievance steps. Also, Respon-
dent's proposal provides that a grievance involving the
interpretation or application of the agreement or a disci-
plinary penalty may be submitted to arbitration only
with prior written mutual agreement of the Union and
the Company.
Finally, Respondent's proposal contains a no-strike
clause and provides that discipline of employees involved
in a proscribed work stoppage is not subject to the griev-
ance procedure and that the Union and/or the bargaining
unit members must pay Respondent a fine in an amount
equal to the wages due to all bargaining unit employees
for each day of the work stoppage.
I conclude that these proposals when considered in
their totality would constitute, if accepted by the Union,
a waiver of a significant and substantial portion of the
Union's right to represent unit employees during the
term of the agreement. I further conclude that these pro-
posals were predictably unacceptable to the Union, and
when considered in their totality, evince an intention to
frustrate bargaining and to avoid the reaching of an
agreement. This conclusion is buttressed by Respondent's
conduct away from the bargaining table and by its delay
in furnishing the requested names, addresses, and tele-
phone numbers of unit employees and by its unilateral
change in wages, and the fact that agreement was
reached on a management rights clause after the com-
736
K & K TRANSPORTATION CORP., INC.
mencement of the strike does nothing to negate it. Ac-
cordingly, in these circumstances, I find that Respondent
has failed and refused to bargain in good faith in viola-
tion of Section 8(a)(5) and (1) of the Act. Bartlett-Collins
Company, supra, Stuart Radiator Core Manufacturing Co..
Inc., supra.
CONCIUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All full and regular part-time over-the-road truck
drivers employed by the Respondent at its facility
located in Omaha, Nebraska, EXCLUDING office
clerical employees, professional employees, guards
and supervisors as defined in the Act.
4. On November 14, 1978, the Union was certified as
the exclusive collective-bargaining representative of the
employees in the unit described above in paragraph 5(a)
following an election conducted by the Board on Sep-
tember 9, 1978.
5. At all times since September 9, 1978, the Union, by
virtue of Section 9(a) of the Act has been, and is, the ex-
clusive representative of the employees in the unit de-
scribed above in paragraph 3, for the purposes of collec-
tive bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment.
6. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by creating among
its employees an impression that their union activities
were under surveillance; by soliciting its employees to
ascertain and divulge to it the union membership, activi-
ties, sympathies, and desires of other employees; by coer-
cively interrogating employees concerning their own and
other employees' support for, and activities on behalf of,
the Union, by promising its employees dental and eye in-
surance coverage to persuade them to withdraw their
support from the Union, by threatening employees that it
would close its facility before it would sign a collective-
bargaining agreement with the Union, by threatening its
employees with discharge if they refused to cross a
picket line or if they testified adverse to Respondent in a
Board proceeding; and by soliciting employees com-
plaints and grievances concerning their working condi-
tions and promising to improve such working conditions
to induce the employees to repudiate the Union.
7. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(l) and (5) of the Act by the
above-stated unfair labor practices, by failing and refus-
ing to provide the Union with a current list of the
names, addresses, and telephone numbers of the employ-
ees in the appropriate unit, herein under the circum-
stances found herein, by instituting a bonus system of
pay for the employees employed in the appropriate unit
herein without prior notice to the Union and .without
having afforded the Union an opportunity to negotiate
and bargain thereon as the exclusive representative of the
employees in said unit and, during the course of contract
negotiation, by insisting to impasse regarding an overly
broad management rights clause and an unduly restric-
tive grievance and arbitration procedure.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
9. Respondent has not violated the Act as alleged in
the complaints herein except as set forth above.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom, and take certain affirmative actions
designed to effectuate the policies of the Act.
Having found that Respondent has refused to bargain
collectively in good faith with the Union as the exclusive
representative of its employees in an appropriate unit, I
will recommend that, upon request, Respondent bargain
collectively with the Union concerning rates of pay,
wages, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such
understanding in a signed agreement. As the evidence
shows that such refusal to bargain in good faith existed
from the inception of negotiations, I also recommend
that the normal certification year be extended for a
period of I year from the date when Respondent begins
to bargain in good faith with the Union as the recog-
nized representative of the employees in the appropriate
unit. Mar-Jac Poultry Company. Inc., 136 NLRB 785
(1 962).
Upon the foregoing findings of facts and conclusions
of law and the entire record herein'- and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following recommended:
ORDER 6
The Respondent, K & K Transportation Corp., Inc.,
Omaha, Nebraska, its officers, agents. successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing, upon request, to bargain in good faith
with General Drivers & Helpers Union Local No. 554,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, re-
garding rates of pay, hours of employment, or other
terms and conditions of employment of all employees in
the appropriate unit described below.
(b) Refusing to bargain collectively with the above-
named Union by refusing to provide said Union, upon re-
' Up I on t il oll ioll tf COLI IIC f r Ihrc Ciltr.it (' r li I t' . thc oftiI Al
traii criplt hrrcm is , rrected a tt l rth iII ".Appntrix In
Ill it' Ct ill r io cxCCptI)IIri lre fi C lar i pr t idt h Stc 10)2 4h of
lit Riilet .iidtt R'guLllti ll ,1i o li Niatlil lz i I abor R latii s BH lard. 1¢l
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sall ht' 11l1CrTIC. ; x teir All prpo ,et
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quest, with a current list of the names, addresses, and
telephone numbers of the unit employees.
(c) Refusing to bargain collectively with the above-
named Union by unilaterally instituting changes in wages
granted to unit employees without prior notification to
the Union, and without affording the Union an opportu-
nity to negotiate and bargain thereon.
(d) Creating among its employees an impression that
their union activities are under surveillance.
(e) Soliciting its employees to ascertain and divulge to
it the union membership, activities, sympathies, and de-
sires of other employees.
(f) Coercively interrogating employees concerning
their own and other employees' support for, and activi-
ties on behalf of the Union.
(g) Promising its employees dental and eye insurance
coverage to persuade them to withdraw their support
from the Union.
(h) Threatening employees that it would close its fa-
cility before it would sign a collective-bargaining agree-
ment with the Union.
(i) Threatening its employees with discharge if they
refuse to cross a picket line or if they testified adverse to
Respondent at a National Labor Relations Board pro-
ceeding.
(j) Soliciting employees' complaints and grievances
concerning their working conditions and promising to
improve such working conditions in order to induce the
employees to repudiate the Union.
(k) In any like or related manner interfering with, re-
straining, and coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Upon request, bargain in good faith with the Union
regarding rates of pay, hours of employment, and other
terms and conditions of employment for the employees
in the appropriate unit and, if an agreement is reached,
reduce said agreement to writing and sign it. The
Union's certification year will extend from the date bar-
gaining is commenced with the Union in good faith. The
appropriate unit is:
All full and regular part-time over-the-road truck
drivers employed by the Respondent at its facility
located in Omaha, Nebraska, excluding office cleri-
cal employees, professional employees, guards and
supervisors as defined in the Act.
(b) Upon request, furnish the Union, with reasonable
promptness, information duly requested by it concerning
empioyees' wages, hours, or terms or conditions of em-
ployment that is relevant to the Union's collective-bar-
gaining duties including the administration of any subsist-
ing contract.
(c) Notify and afford the Union prior opportunity to
negotiate and bargain regarding any contemplated
change in the wages of the employees in the appropriate
unit.
(d) Upon the request of the Union, rescind the bonus
wage plan which it instituted unilaterally.
(e) Post at its places of business in Omaha, Nebraska,
copies of the attached notice marked "Appendix A."1 7
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by Re-
spondent's representative, shall be posted by 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 ane cus-
tomarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
7 nI the eent that this Order is enfirced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of te National Labor Relations Board, shall read "Posted I'ursu-
ant t a Judgment of the United States Court of Appeals Enforcing an
Order of the Naltional L.abor Relatitons Board."
738