Kansas Van And Storage Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 855 (N.L.R.B. 1984)

KANSAS VAN & STORAGE CO. 855
Kansas Van and Storage Co., Inc. and Truck Drivers
and Helpers, Local No. 696 affiliated with the
International Brotherhood of Teamsters, Chauf-
, feurs, Warehousemen & Helpers. of America.
Case 17-CA-10086
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 14 May 1982 Administrative Law Judge
James S. Jenson issued the attached decision. ° The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions to the extent consistent herewith and
to adopt the recommended Order as modified.
1. The judge found that the Respondent violated
Section 8(a)(5) by refusing to bargain about health
insurance. We disagree.
The Respondent and the Union have had a col-
lective-bargaining relationship for several years,
and the issue of health insurance arose in the con-
text of negotiations for a new contract. The
Union's initial contract proposals included an item:
"Discuss a Health 8z - Welfare cost program." At
the first bargaining session the Union Went through
its proposals and stated that instead of a first-year
wage increase it wanted an insurance program. It
said it knew of a better plan than the one employ-
ees were carrying at their own expense and
thought they could get into that plan for approxi-
mately 70 cents an hour. The Union did not name
the plan. The Respondent said it would study the
Union's proposals. Later the Respondent submitted
counterproposals, including economic provisions
covering rates for hourly wages, mileage, loading,
daily expenses, and pension fund. At the next bar-
gaining session the parties discussed the counter-
proposals. The Union took the position they were
inadequate and asserted that the Respondent had
ignored the insurance request. The Union named,
the insurance plan it had in mind, a, state building
trades program which would require a" special
agreement to cover the Respondent which was
outside the building trades. The Union said the
plan would cost 70 cents per hour the first year, 15
cents additionally the second year, and 10 cents _ad--
ditionally the third Year. It suggested that any
excess of that amount could be deducted from the
employees' wages as agreed to by the employees.
The Union din not submit the complete , insurance
plan or any written materials about the plan. The
Respondent replied that its counterproposals cov-
ered its economic offer.
The Respondent prepared a second proposal and
the parties met for a third time. The Union asserted
that the Respondent's whole proposal was less than
the , employees could live with and did not include
an insurance provision. The Respondent stated a
willingness to make some changes in the hourly
rate and an addition to the pension payments.
When the Union complained that the Respondent
had not addressed the insurance issue, the Re-
spondent declared that was its economic offer, that
Was what it was prepared to offer. The following
day the employees voted to strike.
- We conclude that the facts do not establish that
the Respondent refused to bargain about health in-
surance. We conclude, rather, that health insurance
was considered as part of negotiations covering a
total contract. The parties met several times, made
counterproposals, and reached agreement on some
items. The Union never presented a complete insur-
ance plan for consideration or specific details of a
plan. The absence of an insurance program in the
Respondent's economic proposals does not demon-
strate a refusal -to bargain about the subject of in-
surance.
2. We agree With the judge that the Respondent
violated Section 8(a)(5) by refusing to meet and
bargain with the Union, but we disagree with his
finding that the refusal occurred on 18 August
1980, the day the strike began. On that day the
union representative telephoned the Respondent's
vice president who had conducted contract negoti-
ations and said he wanted to discuss matters that
separated them. The vice president referred the
Union to the .Respondent's attorney. The union
representative called the attorney and left a mes-
sage when he was told that the attorney was not
in. We consider the Respondent's conduct on this
date to fall far short of a refusal to meet and nego-
tiate. Without question an employer may bargain
through an agent and it was reasonable for the Re-
spondent's vice president to decide, to bargain
through a professional negotiator after he had
failed to reach agreement with the Union and the
employees- had gone on strike. There is no evi-
dence that he made -the decision to evade or delay
negotiations. Although the selection of an attorney
to handle negotiations did not relieve the Respond-
ent of its statutory obligation to bargain, the evi-
dence does not establish that on 18 August it was
Ailing to discharge that obligation through an at-
torney.
273 NLRB No. 114
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the Union was unable to speak with
the attorney despite several telephone calls to his
office and a second call to the .Respondent on 16
October when the vice president again referred the
Union to the , attorney. On 29 October the union
representative explained to the Respondent's vice•
president that the Union had tried unsuccessfully to
talk to the attorney who did not return its tele-,
phone calls and if matters continued in that way he
could only assume that the Respondent was refus-
ing to bargain. The vice president replied, "You
will have to take it however you want it." We
think that this response by the Respondent when
confronted with information that clearly raised a
question why -the Union had been unable to deal
with Respondent's attorney for a period of at least
2 months shows a failure to exercise responsibility
for the conduct of its bargaining representative and
a disregard of the bargaining obligation. Accord-
ingly, we find that the Respondent refused to meet
and bargain on 29 October 1980.1
3. The judge found that one of the reasons for
the strike was the Respondent's refusal to bargain
about health insurance. Because we do ;not accept
his finding that the Respondent unlawfully refused
to bargain about health insurance, we reject the re-
lated finding that the strike was caused by unfair
labor practices. We find, however, that the strike
became an unfair labor practice strike on 29 Octo-
ber when the Respondent violated Section 8(a)(5)
by refusing to meet and negotiate further with the
Union. Consequently, we consider the strikers to
be unfair labor practice strikers as of 29 October
1980.2
' Member Zimmerman dissents from this finding - He agrees with the
judge that the Respondent's unlawful failure to meet with the Union
commenced on 18 August, rather than on 29 October Contrary to his
colleagues, he finds that the Union's unsuccessful attempts to arrange a
meeting with the Respondent through calls to the Respondent's vice
president (twice) and the Respondent's attorney (four times), starting on
18 August, suffice to establish that the Respondent's refusal to bargain
occurred on that date Perhaps no single one of these prior failures by the
Respondent to cooperate with the Union in this regard would per se be
an unlawful refusal to bargain But the inescapable pattern of circumven-
tion, avoidance, and lack of cooperation evidenced by the Respondent's'
repeated evasions of its bargaining obligation to the Union colors each of
those single instances with the broad brush strokes of unlawful activity
ab inaw—from the Union's first such request on 18 August for continued
negotiations Thus, the Respondent's subsequent failures and refusals in
this regard, culminating in Vice President Morford's virtual concession,
in his 29 October conversation with union representative Moore, that the
Respondent was indeed refusing to negotiate e, Morford's remark,
"You will have to take It however you want a," in response to Moore's
charge that the Respondent was refusing to negotiate), establish, in
Member Zimmerman's view, that the Respondent set out on its course of
unlawful refusal to bargain as early as 18 August, and not, as his col-
leagues would have it, as late as 29 October
2 For a discussion of the reinstatement rights of employees who par-
ticipate in a strike that is converted from an economic strike to an unfair
labor practice strike see Charles D Bonanno Linen Service, 268, NLRB
552 (1984)
AMENDED CONCLUSIONS OF LAW
Substitute the following paragraphs for the
judge's Conclusions of Law 3 and 4.
"3. By failing and refusing to meet with the
Union for the purpose of collective bargaining on
and after 29 October 1980 as the exclusive repre-
sentative of its employees in the above-described
appropriate bargaining unit the 'Respondent violat-
ed Section 8(a)(5) and (1) of the Act.
"4. The strike which began on 18 August 1980
was converted to an unfair labor practice strike by
the Respondent's violation of Section 8(a)(5) on 29
October 1980."
ORDER
The National Labor Relations Board orders that
the Respondent, Kansas Van and Storage Co., Inc..,
Topeka, Kansas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to reinstate unfair labor practice
strikers on their unconditional offer to return to
work.
()) Refusing to meet and bargain in good faith
with Truck Drivers and Helpers, Local No. 696;'
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, as the exclusive bargaining 'representa-
tive of the employees in the bargaining unit.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Takes the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Offer James H. Hendricks, Robert A. Noco-
lay, Frank E. Bath, Jr., Sharon L. Coulter, Daniel
P. Jones, Reuben Wabnum, and Basil Gibbs imme-
diate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority
or any other rights or privileges preViously en-
joyed, discharging, if necessary, any replacements
hired in their former jobs on or after 29 October
1980. Place any of these employees for whom em-
ployment is not immediately available on a prefer-
ential hiring list in accordance with seniority or
other nondiscriminatory practice used by the Re-
spondent. Make whole these employees for any
loss of earnings and other benefits suffered as a
result of the discrimination against them in the
manner set forth in the remedy section of the deci-
sion.
(b) Preserve and, on request, make available • to
the Board or its agents for examination and copy-
KANSAS VAN & STORAGE CO 857
ing, all payroll rebords, social security payment
records, timecards, personnel records and reports,
and all other records necessary , to analyze the
amount of backpay due under the terms of this
Order.
(c) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement:
All truck drivers, helpers and shop employees
employed at the facility located at 220 North
Quincy, Topeka, Kansas, but excluding the
master mechanic, office clerical employees,
professional employees; guards and supervisors
as defined in the Act.
(d) Post at its facility iii Topeka, Kansas, copies
of the attached notice marked "Appendix." 3
Copies of the notice, on forms provided by the Re-
gional Director for Region 17, after being signed
by the , Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure' that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 If this brder is enforced by a Judgment of a United States Court of
Appeals, the words in the nonce reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Puisuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The , National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to reinstate unfair labor
practice strikers on their unconditional offer to
return to work.
WE WILL NOT fail or refuse to meet and bargain
in good faith with Truck Drivers and Helpers,
Local • No. 696, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America as the exClusive bar-
gaining representative of our employees in the ap-
propriate bargaining unit set forth below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer James H. Hendricks, Robert A.
Nocolay, Frank E. Bath, Jr., Sharon L. Coulter,
Daniel P. Jones, Reuben Wabnum, and Basil Gibbs
immediate and full reinstatement tci their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
•ly enjoyed, discharging, if necessary, any replace-
ments hired in their 'former jobs on or after 29 Oc-
tober 1980.
WE WILL place any of these employees for
-whom employment is not immediately available on
a preferential hiring list in accordance with seniori-
ty or other nondiscriminatory practice that we use.
WE WILL make them whole for any loss of earn-
ings and other benefits resulting from our denial to
them of reinstatement, less any net interim earn-
ings, plus interest.
WE WILL, on request, meet and bargain with the
Union and put in writing and sign' any agreement
reached on terms and conditions of employment
for our employees . in the bargaining.unit:
All truck drivers, helpers and shop employ-
. ees employed at the facility located at 220
North Quincy, Topeka, Kansas, but excluding
. the master mechanic, office clerical employees,
professional - employees, guards and supervisors
as defined in the Act.
KANSAS VAN AND STORAGE CO.,
INC.
DECISION
• STATEMENT OF THE CASE •
JAMES S. JENSON, Administrative Law Judge. This
case was heard on July 28 and 29, 1981, in Topeka,
Kansas. The complaint issued on January 28, 1981, pur-
suant to a charge filed on - December 19, 1980, and
amended on January 20, 1981. The complaint alleges the
Respondent violated Section 8(a)(5) and (-1) by refusing
to negotiate a health insurance contribution plan and be
failing and refusing to meet with the Union, and Section
8(a)(3) by refusing to reinstate unfair labor practice strik-
ers. The Respondent denies it has either refused to meet
with or bargain with the Union, and contend the strikers,
whom it has placed on a preferential hiring list, were
economic strikers whom it permanently replaced. All
parties' were afforded full opportunity to appear, to intro-
duce evidence, and to examine and cross-examine wit-
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nesses. Both the General Counsel and Respondent filed
posthearing briefs which have been carefully-considered.
On the entire record 1 in the case, including the de-
meanor of 'the witnesses, and the posthearing briefs, I
make the following
• FINDINGS OF FACT
I , JURISDICTION
The Respondent is engaged in the 'moving 'and storage
of furniture and other " household goods in Topeka,
Kansas. It is admitted and found that Respondent annual-
ly derives gross revenues in excess of $50,000 for the
transportation of furniture and other household goods in
interstate "commerce pursuant to arrangements with and
as agent for various common carriers, including May-
flower Moving Service which operates between and
among various States of the United, States, that it oper-
ates as an essential link in the transporation of furniture
and other household goods in interstate commerce, and
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. -
II THE 'LABOR ORGANIZATION INVOLVED
It is admitted and found that the Union is a labor orga-
nization within the - meaning of SeCtion 2(5) of the Act.
III. ISSUE
1. Whether the Respondent failed and refused to nego-
tiate with the Union about a health insurance contribu-
tion plan.
2. Whether, since ,or _about August 15, 1980, the Re-
spondent failed and refused to meet with the Union for
the purpose'of collective bargaining.
3. Whether the _strike which commenced on or about
-August 18,. 1980, was caused by the Respondent's refusal
to negotiate a health insurance contribution plan and/or
prolonged by its refusal to meet for the purpose of col-
lective bargaining
4. Whether the Respondent unlawfully refused to rein-
state striking employees.
•-
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
For a number of years, the .Respondent has had a col-
lective-bargaining relationship with the Union as the rep-
resentative of all truck drivers, helpers and shop employ-
ees employed by the Respondent, at its facility located at
220 Mirth Quincy, Topeka, Kansas, but excluding the
master mechanic, office clerical employees, professional
employees, 'guards and supervisors as defined in the Act,
a unit alleged, admitted, and found to be appropriate for
the purposes of collective bargaining 'within-the meaning
of Section 9(b) of the Act. The most recent agreement
covered -the period from August 15, 1977, to August 15,
• •
1 The General Counsel moved to correct the transcript in accordance
with an appendix attached to his bnef The Respondent-has not opposed
the motion Accordingly, with the exception of the changes requested on
pp 51 and 257, the motion is granted The appendix has been marked and
is received in evidence as c C Exh 20
1980.2 Pursuant to its terms, on June 4, the Union ad-
vised the Respondent of its desire to reopen the contract.
Arthur W. Morford is Respondent's president, James L.
Morford is Respondent's vice president, and William' G.
Haynes is Respondent's attorney and principal negotia-
tor. LaRue Moore is the Union's president and Bill
Moore, his son, is a union business representative and its
representative in bargaining with Respondent during
times material herein. James H. Hendricks, James E.
Bath, Jr., Daniel P. Jones, and Robert A. Nicolay were
employed by Respondent in the unit represented by the
Union. Bail Gibbs, Sharon L Coulter, and Reuben
Wabnum were also employed by Respondent. While
there , was testimony to the effect that the latter three
were not strikers, it is clear they performed no work for
Respondent . during the strike which commenced August
18. The complaint alleges, and the answer admits, how-
ever, that on December 18 the Union- made an uncondi-
tional offer to return to work on behalf of all seven of
the above-named "employees."
B Prestrike Events
On July 3 Business Representative Bill Moore (Moore)
called Jim Morford (Morford), advised him of a negotia-
tion meeting with Topeka , Transfer and Storage Compa-
ny, and asked if he planned to attend. Morford respond-
ed that Respondent desired to negotiate separately On
July 8, Moore mailed a copy of the Union's proposed
contract changes to Morford. 3 Item 13 of the proposal
reads, "Discuss a Health & Welfare cost program." On
July 16, Moore called Morford again regarding a meet-
ing and one was arranged for July 22 at the union hall.
I First negotiation meeting
The first negotiation meeting took place at 7 p.m. on
July 22 at the union hall. Present for the Union in addi-
tion to Bill, Moore were Ted Sumner, an employee of
Topeka Transfer and Storage, Hendricks, Bath, Nicolay,
and Jones. Present for the Respondent were , Art and Jim
Morford The testimony shows that Moore went through
the Union's list of proposed changes, stating the Union
wanted an increase in vacations, an additional holiday; a
pension increase; a different method of computing call-in
pay; an hourly pay increase of 75 cents the first year and
60 cents each for the second and third years, a mileage
rate increase of 2 cents for the first year and 1 cent for
each of the next 2 years; an :increase in the loading rate
of 10 cents the first year and 5 cents for each of the next
2 years; and in lieu of a first-year wage increase, a health
and welfare plan paid for by the employer. 4 Moore
'stated that the Blue Cross plan which was available to,
and 13aid for by, employees' was costing too much and
that he knew of a better plan that the Company could
get into at a cost of approximately 70 cents per hour.5
2 All dates are in 1980 unless otherwise stated
3 G C Exh 7
4 The Union withdrew ' two of its . proposals which Moore acknowl-
edged did not affect Respondent's employees
Moore did not have a copy of the plan nor did he mention its name
His knowledge of the plan was limited to hearsay
KANSAS VAN & STORAGE CO. 859
Jim Morford responded that he and the Company would
study the Union's proposal and get back to Moore. Mor-
ford asked if the Union intended "to keep economic
equality between" Respondent and Topeka Transfer, and
Moore responded affirmatively.
The Respondent's written contract proposal was re-
ceived by the Union on July 26. 6 On July 27, Moore met
with Respondent's employees and reviewed the Re-
spondent's proposal. Moore noted that the proposal did
"not even address our proposal of insurance, that they
had completely ignored it." A vote was taken and the
proposal was rejected by the employees. On July 28,
Moore called Morford and informed him the Company's
proposal was inadequate and another meeting was
needed. They agree to meet again July 31.
2. Second negotiation meeting•
On July 31, Morford met with Moore, four of Re-
spondent's employees and two employees from Topeka
Transfer. Moore stated Respondent's proposal was insuf-
ficient and explained why. Respondent's first proposal
was to amend article IV, section 4, of the old agreement
to provide for a 90-day probationary period instead of 30
days. The second proposal was to amend article VIII,
section - 1, which provided that drivers were not to be
held responsible for damage caused by improper loading
or handling of merchandise by others, to add a provision
that drivers would "be responsible for carriers charges
for violations of ICC rules and company policies and the
carriers claim liability charge for improperly prepared in-
ventories." Proposal three sought to change article XV,
section 1, by providing for overtime after 40 hours per
week instead of after 8 hours per day. With respect to its
fourth proposal covering wages, Respondent proposed
an hourly increase of 40 cents per hour the first year and
30 cents per hour over each of the 2 succeeding years; a
mileage rate increase of 1 cent the first year and 1 cent
for the second year with no additional increase for the
third year; a load and unload (per cwt) increase of 5
cents for each of the 3 years; an increase of $1 per day
for expenses in each of the 3 years; 7 and 50 cents per
hour difference between helpers and dnvers wages. Its
fifth proposal was to change article XV, section 5, to
provide that drivers be paid the same hourly rate for
breakdowns as layovers. Its sixth proposal was to in-
crease pension fund payments $1 per week the first year
and $3 per week for each of the 2 succeeding years.
With the exception of proposal five Covering break-
downs, which it was agreed should be included in a con-
tract since the Company was already abiding by it, the
Union rejected all of the Respondent's proposals as inad-
equate. Moore testified that after going through, and re-
jecting, the Respondent's proposals, he told Morford that
"you have completely ignored the fact that we requested
a health and welfare program," and that Morford replied
"that is my economic offer. That is what I am prepared
8 0.0 Exh 8
The contract provided for expenses of $19 per day The Union's pro-
posal called for "room to $16 or if none available, close to that rate.
Actual expense with receipt or paid by the hour to hunt cheaper hotel."
In addition, the Union sought a meal allowance of $3 for breakfast, $4 for
lunch, and $7 for supper.
to discuss, and that is all that I have." Moore responded
that he did not see any sense in continuing the meeting,
which then broke up. On cross-examination, Moore testi-
fied that he told Morford that the insurance plan he pro-
posed would cost the Employer "70 cents [per hour per
employee] the first year, 15 cents additional the second
year, and 10 cents additional the third year; and if it
went over that, that it would be deducted from the em-
ployee's wages as agreed to by the employees."
On cross-examination, Moore testified he made the fol-
lowing counterproposals at the meeting:9
Vacation: 2 weeks after 3 years. (Initial proposal
was 2 weeks after 2 years. Contract provided for 2
weeks after 4 years.)
Pension: Increase of $4 per week the first year
and $3 per week for the 2 succeeding years. (Initial
proposal was $3 per year.) -
Hourly pay on Multiple Metro Pickup (no discus-
sion).
Room expense and meals: $22 the first year,
$23.50 the second and $25 the third year. (Initial
proposal was for a minimum of $30 per night. Con-
tract provided for $19 per day.)
Hourly rate:
1st year: Insurance plan at rate of 70 cents per
hour in lieu of hourly increase, mileage increase
and load and unload increase.
2nd year: 50 cent hourly increase; and 16 cent
mileage rate (down 1 cent from initial proposal).
3rd year: 50 cent hourly increase; and 16-1/2
cent mileage rate (down 1-1/2 cents from initial
proposal).1°
"Helpers: 50 cents less than drivers on all new
hires present employees with 45 days not restrict-
ed."
Double time Sunday.
4 hour call in.
The Company's response to the proposal, according to
Moore, was, "[W]ell, we will look at it."
On August 13, Moore called Morford, informed him
that time was running out, that the Union had reached
"a summary of a contract with his competition," and that
they needed to meet again. Later in the day, Morford
called Moore, advised him the Respondent had another
written proposal and agreed to meet the afternoon of
August 15 at the union hall. A union representative
picked up a copy of Respondent's second proposal" the
afternoon of August 13.
8 Nicolay testified Morford's response was, "[y]ou have my offer right
now I an not prepared to discuss that. I am talking cash only. You have
my economic proposal"
R Exh 1 contains the notes made by Moore during negotiations.
10 Moore testified on direct examination that the cost of the proposed
Insurance plan entailed an additional 15 cents per hour the second year
and 10 cents the third year. His notes do not reflect these amounts.
" G.0 Exh. 9.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Third negotiation meeting
On —August 15, Morford called Moore early' in the
afternoon' and stated he and his father could dot • get
away from the office to negotiate. Moore responded that
the Contract expired at midnight, that they had to meet
and proposed a meeting in Morford's office that after-
noon, to which Morford agreed. Accordingly, about 3
p.m. Moore and an employee of Topeka Transfer met
with the two Morfords in the latter's office The Re-
spondent's second written proposal" proposed hourly
wage increases of 50 cents for each of the 3 years," a
mileage rate increase of 1 cent the first year, another
cent the second year and a half cent the third year;" a
load and unload (per cwt) increase of 10 cents the first
year and 5 cents for each of the two succeeding years;"
50 cents per hour difference between helpers and drivers
,on all new hires," change article XV, section 5, to pro-
vide the drivers be paid the same hourly rate for break-
downs as layovers," and an increase in pension fund
payments of $1 per week for the first year and $3 per
week for each of the 2 succeeding years." During the
meeting, Morford amended his proposal by increasing
pension fund payments by $3 in each year and by de-
creasing the hourly increase for the second and third
years from 50 cents each -to 45 cents and 40 cents per
hour respectively. Moore's testimony regarding the
meeting was a follows:
Q. Starting from the beginning of this meeting
and taking us through to the end, tell us as best you
recall what was said and by whom
A I told Jim that we had completed the other
contracts, as I _told him before, and we needed to
gel his- resolved; that his last proposal had not met
the economic equality that he had asked for, and
that we felt -that --his whole proposal was less than
what the drivers could live with. I told him he had
no[t1 offered us any insurance proposal. He had not
even responded to it, and he at that time—we told
him that he had not made any changes in the pen-
sion. He said, "Well, I am willing to make this
change." He added $3, $3 per week to the pension
per year, and changed the monetary, the hourly
rate by a nickel in the last two years and said that
he was willing to make those changes, and I said,
"Well, yOu still have riot made any changes or
made any address. to the insurance policy."
- He said, "That- is my economic offer That is
what I am prepared to offer," and I said, "Well, I
do not really have 'any choice, Jim, other than to
G C Exh 9
13 This is an increase of 10 cents per hour for the first year over its
initial proposal, and 20 cents per hour in each of the next 2 years over
the initial proposal
" An increase of a. half cent in the third year over the initial proposal
15 An increase of 5 cents in each of the years over the initial proposal
16 The same as in original proposal
11 Same as in original proposal
18 The Respondent had dropped the first three proposed changes in its
initial proposal, to which the Union objected; which covered probation-
ary penod, drivers responsibility for violations of ICC rules and Improp-
erly prepared inventories, and a change in the method of computing
overtime
take this back to the employees," and he said,
"Well, we all have to do whatever we have to do,"
and I said, "Well, I thank you," and I left. -
C. The Strike
•
On August 16, Moore met with Bath,- Hendricks,
Jones, and Nicolay. He reported the changes in the com-
pany proposal which had been made during' the meeting
the previous day, and "that they had not addressed the
insurance and were not willing .to apparently institute a
program because all they had addressed was an econom-
ic proposal, and they apparently weren't prepared to
meet the economic quality of the other company. that
they had requested." He. expressed his feeling that the
Respondent had failed to negotiate, but had instead pre-
sented its proposals on a "take it or leave it" basis. After
the employees voted to strike Respondent, Moore ex-
pressed the opinion that the Respondent may have com-
mitted an unfair labor practice. The first picket signs
were prepared at that time.
Picketing commenced on August 18 at approximately
7:30 a.m. and continued until noon on August 22 with
signs reading:
Notice to the public: Employees of Kansas Van and
Storage Co., Inc. are on strike. Members of Team-
sters Local 696, Topeka, Kansas, 232-3866.
Commencing about noon on August 22, and continu-
ing through the dates of the hearing, herein, the signs
have read:
Employees of Kansas Van and Storage Co., Inc.,
unfair labor practice, on strike, members of Team-
sters Local 696, Topeka, Kansas, 232-3866.
About midmorning on August 18, Moore called Mor-
ford to discuss, inter alia, "the things that we are apart
on these negotiations." Morford referred Moore to Bill
Haynes, his attorney
' D. Attempts to Contact Respondent's Attorney
According to Moore, he immediately called Haynes'
office, was advised he was not in and left the following
message with Haynes' secretary: "This is Bill Moore. My
phone number is 232-3866. and I am calling about
Kansas Van and Storage."
On August 19, LaRue Moore (Bill Moore's father and
the union president) called Respondent's office in an at-
tempt to reach Art Morford (Respondent's president),
but in his absence talked to Jim Morford, and asked_ if
there was some way they could "sit down and work this
whole mess out," that he "understood- we had had now
not only a strike problem, we also had a pension prob-
lem."" Morford referred him to Haynes. According to
13 While acknowledging that he does not normally get involved in ne-
gotiations, -which are left to his son to handle, LaRue Moore testified that
on August 19 he had called "to talk to Art [Morford] who I have know
for many years and see if he and I possibly couldn't sit down and maybe
clear up the whole ball of wax, strike, pension problem, whatever there
was to be done'
KANSAS VAN & STORAGE CO 861
LaRue Moore, he then called Haynes' office, and on
learning that Haynes was not available, left his-name and
asked that Haynes call him Also on August 19, the
Union filed a charge against Respondent in Case 17-CA-
9862, alleging that Respondent had made unilateral
changes in working conditions in violation of Section
8(a)(1), (3), and (5), and.had threatened and interrogated
employees in violation of Section 8(a)(1)." The charge
was later withdrawn
'About September 3, LaRue Moore called Haynes'
office again, again learned Haynes was not in, and again
left his name with a request that Haynes call him. He as-
sumed Haynes did not return his call because his secre-
tary did not leave him a message to that effect
On October 16, Moore called Morford and stated,
"We still need to get together and talk about negotia-
tions." Morford's response was, "[D]on't talk to me; talk
to my attorney." According to Moore, he then called
Haynes' office, and on learning he was not in, left his
name and phone number, and stated he was "calling
about Kansas Van and Storage." The secretary to whom
he spoke responded that she would "see he gets the mes-
sage."
On October 29, Moore called Morford again, using a
"speaker phone" so that the employees who were with
him could hear the conversation. His account of the con-
versation with Morford
"Jim, we need to renew negotiations. We need to
sit down with you." He said, "Don't talk to me; talk
to my attorney," and I said, "Jim, I have tried to
talk to your attorney. He is stonewalling me. He
will not return my call," and he says, "That is not
my fault," and I said, "It may not be your fault, but
it is your responsibility. You have an obligation." I
said, "If you continue this and he continues not to
respond, I can only assume that you are refusing to
bargain and negotiate," and he said, "You will have
to take it however you want it," and I said, "Well,
O.K. I will try to make the attempt of calling Mr.
Haynes."
Moore then placed a call on the "speaker phone" for
Haynes in the presence of the same employees, and since
Haynes was apparently not there, left his name and
phone number. 2 ° Moore claimed that on October 29, he
had in his possession a copy of a "plan document" with
another company, "a private situation, but it was for my
reference, and I also had a 3 year quote on the amount
of its cost and the method by which we would compute
the mileage rate into the hourly rate for the sake of con-
tributions." He did not forward the "plan document" to
either Morford or Haynes, and when asked to produce
one later on, was unable to furnish Haynes with a copy.
On November 12, Moore met with several of the strik-
ers and again placed a "speaker phone" call for Haynes.
On learning Haynes was out, he left his name, the fact he
was with the Union, and asked that Haynes call him.21
20 The substance of the October 29 calls to Morford and Haynes'
office was corroborated by hlicolay
21 Corroborated by hhcolay
Moore next called a Federal mediator and asked that he
assist in establishing contact with Morford and Haynes.
On November 19, Morford called Haynes' office
again, was told he was "out on a trial," and again left his
name and phone number and asked that he return the
call.
On December 18, Moore called Morford from his at-
torney's office in Kansas City. He asked Morford if he
was ready to meet and negotiate, and was again told to
call Haynes, which he apparently failed to do. That
afternoon Moore returned to Topeka, met with two of
the strikers and suggested he make an unconditional offer
to return to work. As neither of the strikers objected, he
contacted Morford personally and made an unconditional
offer to return on behalf of the four strikers and three
other employees who had not been called to work
during the strike. By letter dated December 23, Art Mor-
ford infdrmed . Moore that the seven strikers had been
permanently replaced and would be placed on a prefer-
ential hiring list in the event their jobs became vacant in
the future.
E. Events Following Refusal-to-Bargain Charge
On December 19, the Union filed a charge initiating
this case, wherein it was alleged that the Respondent had
failed to bargain since about August 15. On January 20,
1981, the charge was amended to allege that (1) since
July 22, the Respondent refused to bargain by refusing to
discuss the Union's insurance proposal; (2) since August
15, the Respondent refused to meet; and (3) since De-
cember 23, Respondent failed to reinstate unfair labor
practice strikers after an unconditional offer to return to
work. On January 26, 1981, Morford wrote the follow-
ing letter to Moore:
Dear Mr. Moore:
You have alleged in your unfair labor practice
• charge that our company has refused to meet to ne-
gotiate and has refused to negotiate the union's in-
surance proposal.
During our last meeting our response to the in-
crease for health and welfare was we proposed a
fifty cents per hour increase instead, which you re-
jected. We explained to you that we believed
monies available for improvements should be ap-
plied for employees wages. We did not refuse to
discuss your proposal
We have never refused to meet to negotiate. We
have always been willing to meet with the union
and continue to be willing to meet at a mutually
agreeable time and place.
As we told you previously MT. William Haynes has
been retained by our company to represent us in ne-
gotiations following our last meeting in August of
1980. To this date Mr. Haynes' office has no record
of any attempts by you to arrange for 'a meeting.
If you now desire a meeting please. contact Mr.
Haynes in writing with a carbon copy to us and
suggest several dates you will be available to meet.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We assure you that a mutually agreeable date and
time will then be arranged with Mr. Haynes. -
Your immediate response to this letter will be ap-
preciated.
Yours very truly,
/s/James L. Morford
James L. Morford
Vice President -
On January 30, 1981, Moore wrote Haynes 22- propos-
ing several dates in February to negotiate. Haynes re-
sponded by letter dated February 3, 1981, 23 and the par-
ties met on February 11, 1981. Present for the Respond-
ent were Morford and Haynes. Moore, Jones, Bath, and
Hendricks Were present for the Union. The proposals by
both sides were reviewed. Moore stated the items he felt
they were apart on, among which was "they had not re-
sponded to a request that we have an insurance program
in lieu of the first year's wages." Haynes expressed the
view that he did not think the parties were "that far
apart," caucused in private with Morford, and informed
Moore that "we will draw something up for you."
Agreernent was made to meet again on February 21.
The parties met again on February 21, at which time
Haynes presented the Union with a written proposa1.24
The proposal, General Counsel's Exhibit 15, provides for
a 3-year term commencing February 21, 1981, through
February 20, 1984. After reviewing it, Moore stated that
it appeared to be less than what the Respondent had pre-
viously offered and that "there seemed to be no element
of negotiations." Haynes responded "[Mal, you can see
that I finally made a proposal on your insurance." The
proposed health and welfare provision in Respondent's
proposal reads:
Effective February 21, 1983, the Employer shall
contribute $70.000 per month to the monthly medi-
cal and hospitalization premiums for each regular
full-time employee following their 90th day of em-
ployment, provided said employee makes applica-
tion for coverage through the Employer and au-
thorizes a payroll deduction for any additional
monthly premiums due."
Moore stated that Respondent's proposal did not state
who the insurance carrier would be, its cost, Or what it
would cover, and requested the Respondent furnish more
information. Haynes agreed to so and Moore, at Haynes
request, agreed to furnish Respondent with a copy of the
Builders Health and Welfare Fund "plan document" the
Union was proposing.
By letter dated February 24, 1981, Moore reiterated
his request to Haynes for more information, and by cov-
ering letter dated February 27, 1981, Morford transmit-
ted information which he had obtained from Kansas Blue
Cross-Blue Shield, Prudential Insurance, and Mayflower
22 G C Exh 12
22 GC Exh 13
24 Present for the Respondent were Haynes and Morford Moore,
Jones, and Hendncks were present for the Union
24 Based on a 4-week month and 40-hour week, $70 per month per
employee is the equivalent of 43-3/4 cents per hour per employee
Warehousemen's Association Group Insurance Plan, to
Moore. On the same day, Haynes wrote Moore the fol-
lowing letter.
Dear Mr. Moore.
This is to acknowledge reciept of your letter
dated February 24, 1981. You apparently have mis-
understood our discussion concerning Kansas Van's
proposal in regard to health and welfare or hospital-
ization during our meeting on Saturday, February
21, 1981.
The Company offered to pay $70 per month to-
wards a hospitalization premium effective the third
year of the contract. We stated that the coverage of
- the plan at the time could be the same as the
present Blue Cross Blue Shield coverage or some-
thing different than the present plan. We stated that
the Company would prefer to remain with Blue
Cross Blue Shield but that it was open to suggestion
from the Union. You stated that the Kansas Build-
ers Health and Welfare plan was available and that
the trust fund would accept payments directly from
the Company deducted from the employee's -pay.
You further stated that the present premium for
coverage in that fund was 70 cents per hour
worked. I asked you if you would provide me with
the trust agreement which allowed for drivers paid
on a mileage basis to pay premiums on a flat rate
basis and you said that you would do so.
Mr. Morford is requesting that Blue Cross Blue
Shield provide you with the present coverage pro-
vided by them and an ' estimate of what the antici-
pated premiums would be for the next three years
If you do not hear from them within the, next ten
days, please let me know. Mr. Morford.has compar-
ison bids from other companies which he is sending
you today.
We will be available at 7:30 PM on March 3,
1981, for another meeting, provided my' secretary, is
able to reach you today to confirm that meeting. I
suggest that we meet again in our conference room.
The parties met for the last time on March 24, -1981.26
Haynes and Morford were present for the Respondent
and Moore, Hendricks, Jones, and Bath for the Union.
Moore stated he had reviewed the information which
Respondent had furnished but that he could not find any-
thing to indicate what any of the plans would cost at the
time the Respondent's offer to contribute to a health and
welfare plan would go into effect, and that agreeing to
anything • like that "would be' like buying a pig in a
poke." Haynes asked Moore for a copy of the "plan doc-
• ument" which the Union proposed. Moore responded
that he had been unable to obtain a copy from the plan
administrator, but that the Union "could offer a three-
year quote, as far as the insurance cost; and that if it went
over that, we were agreeable to put the language in to
take anything that went above that our of the employee's
26 As of the date of the hearing, neither party had requested another
meeting
KANSAS VAN & STORAGE CO 863
wages." After the Respondent refused to change its out-
standing offer, the meeting ended with Haynes stating he
would be available to talk to Moore.
Positions of the Parties
The General Counsel argues the Union's health insur-
ance proposal, which was contained in the Union's writ-
. ten proposal and explained by Moore at the first negoti-
ating meeting of July 22, was a mandatory, subject of
bargaining, and that the Respondent's failure to address
it in either of its two written proposals and its refusal to
discuss it during bargaining sessions constituted a refusal
to bargain in violation of Section 8(a)(5)..of the Act. Con-
sequently, it is argued, the strike which commenced on
August 18 was an unfair labor practice strike, which was
prolonged thereafter by the failure of Respondent's attor-
ney to meet at reasonable times with the Union, also vio-
lating Section 8(a)(5). It is argued that the refusal to rein-
state the unfair labor practice strikers on the December
18 unconditional offer to return made by Moore violated
Section 8(a)(3).
The Respondent contends the strike was not caused by
its refusal to negotiate the subject of the health insurance
contribution plan, but rather by its "refusal to agree to
contribute 70 cents per hour for each hour worked for
each employee to the health and welfare program which
Moore claimed was available commencing the first year
of the contract," a copy of which the Union was unable
to make available to Respondent. It is argued that the
Respondent insisted that all moneys available for eco-
nomic improvement be, used to improve employee's
wages, and therefore the evidence established that the
parties disagreed on the economic package prior to the
strike, culminating m an impasse over economic issues.
Therefore, in light of the long amicable relationship be-
tween the parties, the good-faith bargaining which pre-
ceded impasse and the strike, as well as the Union's fail-
ure to furnish Respondent with a copy of its proposed
health and welfare plan, it is argued that the General
Counsel has failed to establish by a preponderance of the
evidence that the Respondent refused to , negotiate the
subject of health insurance and that the strike was eco-
nomic in nature. Respondent argues further that, since
the Union has at all times been unable to furnish it with a
copy of its proposed health and welfare plan, it would
not have been able to engage in an intelligent discussion
of the health and welfare program proposed by the
Union, which was one of the primary economic issues
which caused the strike and continued to be a stumbling
block to settlement Accordingly, no settlement could
have been achieved during the period after the strike
commenced and, therefore, the strike- was not prolonged
because of Respondent's refusal to bargain or meet be-
tween August 18, 1980, and February 11, 1981, when ne-
gotiations resumed.
Conclusions
Under Seation:8(a)(5) of the Act, it is an unfair labor
practice for an employer "to refuse to bargain collective-
ly with the representatives of his employees." The obli-
gation "to bargain collectively" is defined in Section 8(d)
as ,"the mutual obligation . to meet at reasonable
times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or
the negotiation of an agreement." The law requires no
party to make concessions or to yield any positions fairly
maintained. NLRB v American National Insurance Co.,
343 U.S. 395, 404 (1952), HK. Porter Co. v. NLRB, 397
U.S. 99, 106 (1970). However, there exists a duty to
enter into negotiations- with "a spirit of sincerity and co-
operation in a genuine effort to find a basis of accord"
and "to refuse to do so is an unfair labor practice pro-
scribed by Section 8(a)(5)." NLRB v. F. Strauss & Son,
Inc., 536 F.2d 60, 63 .(5th Cif. 1976), and cases cited
therein. "[The. ultimate issue whether the Company con-
ducted its bargaining negotiations in good faith involves
a finding of motive or state of mind which can only be
inferred from circumstantial evidence" NLRB v. A. W.
Thompson, Inc., 449 F.2d 1333, 1335 (5th Cir. 1971). '"It
is well settled that group medical benefits and insurance
plans providing for these benefits are encompassed
within the terms "wages,' or 'conditions of employment'
and, as such, are matters about which an employer is
mandatorily required to bargain." Connecticut Light Co.,
196 NLRB 967, 968 (1972), and cases cited therein. It is
also settled that a strike caused by unfair labor practices
is an unfair labor practice strike even if it also has eco-
nomic objectives. NLRB v. Borg-Warner Corp., 236 F 2d
898, 907' (6th Cir. 1956), modified on other grounds 356
U.S. 342; NLRB v. Louisville Chair Co., 385 F.2d 922,
929 (6th Cir. 1967), cert. denied 390 U.S. 1013 (1968);
NLRB v. Sea-Land Service, 356 F.2d 955, 966 (1st Cir.
1966), cert. denied 385 U S. 900 (1966). An employer
who hires a negotiator-attorney is not excused from the
statutory requirement "to meet at reasonable times and
confer in good faith" Lawrence Textile Shrinking Co,
235 - NLRB 1178, 1179 (1978), and cases cited 'therein.
"There remains on the employer -the positive legal duty
to meet and confer ° with the Union at reasonable times
and places." NLRB v. Exchange Parts Co., 339 F.2d 829,
832 (5th Cir. 1965). Further, the law is settled that em-
ployees who strike in protest over their employer's
unfair labor practices are entitled to reinstatement to
their jobs on their unconditional offer to return to work,
displacing if necessary any replacements hired during the
strike. Mastro Plastics Corp. v.- NLRB,' 350 U S. 270, 278
(1956); 'Daisy's Originals. Inc. of Miami, 187 NLRB 251
(1970), enfd 468 F.2d 493 (5th Cir 1972). Moreover, a
strike is treated as an unfair labor practice strike if the
employer's unfair labor practices were a contributing
cause of the strike. Southern Pipe v. NLRB, 444 F.2d 340,
352 (5th - Cir. 1971). And, a refusal to reinstate all unfair
labor practice strikers, displacing replacements to the
extent necessary, is itself discriminatory and violates Sec-
tion 8(a)(3) and (1) of the Act. NLRB v. Mooney Aircraft
Co.., 366 F 2c1' 809, 812 (5th cir. 1966); NLRB v. South-
land Cork Co., 342 F.2d 702, 708 (4th Cir, 1965)
Application of the above principles to:the facts of this
case convinces me that the Respondent has violated the
Act substantially as alleged in the complaint.27
27 Respondent rested at the conclusion of the General Counsel's case
in Chief without offering any additional evidence
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paragraph 10 of the complaint alleges that since about
July 22, 1980, the Respondent failed and refused to nego-
tiate with the Union over a health insurance contribution
plan, a mandatory subject of collective bargaining. It is
abundantly clear from the facts that Moore informed Jim
Morford prior to entering into negotiations, that the
Union wanted, inter alia, to "discuss a health and welfare
cost program." At the first bargaining session on July 22,
Moore reiterated the Union's interest in such a plan, pro-
posing that an employer paid plan be negotiated, in lieu
of a first year wage increase. Morford's only response
was to the effect that Respondent would study the
Union's proposal and "get back." The Respondent's July
26 proposal makes no mention of a health and welfare
prOgram, and when Morford brought up the fact and
stated at the second bargaining session on July 31 that
the Respondent had ignored the Union's request, Mor-
ford responded that the proposal contained his "econom-
ic offer , . . . and that is all that I have." The Union made
several counterproposals, including, in lieu of first year
hourly, mileage and load and unload -increases, the
Kansas State Building Trades, Construction Open End
and Health and Welfare Program. While Moore did not
have a 'copy of the plan (indeed none was. available) it is
significant that Morford did not request a copy, and his
only resPonse to Moore's counterproposal was, "[Mal,
we will look at it." The third and last meeting preceding
the strike took place on August 15. In the meantime, the
Union had received Respondent's second proposal which
again lacks any response to the Union's proposal of a
health and welfare plan. While Moiford modified the
proposal by increasing the weekly. Pension fund pay-
ments by $3 per week for each of the 3 years, and by
decreasing his hOurly wage proposal for the second year
by 5 cents and the third year by 10 cents, he still 'failed
to include anything covering health and welfare, and
when reminded of it, responded "that is my economic
offer. That is what I am prepared -to offer." That a
health and welfare plan was primary on the Union's list
of negotiable items is clear. That it was not on the Re-
spondent's, list and the Respondent refused to discuss the
subject is equally clear. Nor is there any substance to the
Respondent's argument that Respondent insisted that all
moneys available .for economic improvement be used to
improve employee's wages, and that therefore the parties
disagreed on the "economic package," culminating in an
impasse over economic_ issues. Respondent did indeed at-
tempt to establish this theory, albeit unsuccessfully,
through the cross-examination of Nicolay, regarding the
bargaining session of July 31. The testimony cited in the
Respondent's brief to support the position is on page 253
of the transcript:
Q. Do you recall Mr. Morford saying anything
about the company was concerned about the eco-
nomic situation in the company generally, inflation,
about the employee take-home pay?
A. I recall that there was some discussion about
how the economy had slowed down, but' as to
whether there was any concern over the employee
take-home pay, I dont recall that Kansas Van ex-
pressed anything.
Q. Do you recall them expressing or stating any
thing with regard to why they were continuing to
propose an hourly increase to the employee for the
first year, and not a contribution for a health and
welfare program?
-- A. There was no justification given for that.
Q. You said they said this was their economic
package,' their proposal included their economic
package, is that right?
A. Jim said, "you have my economic proposal."
Q. Eeonomic proposal, and that was in response
to Mr. , Moore's statement that their counterproposal
included nothing for health and welfare?
A. Yes. He said, "You haven't even addressed
the issue." Jim said, "I am not prepared to discuss
that right now: You have my economic proposal."
Thus, the record does not establish that Respondent in-
sisted on an hourly Wage increase the first year as'a' quid
pro quo for a health' and welfare plan. The RespOndent
was not disposed to either make an offer or discuss
health and welfare insurance prior to the inception . of the
strike. I find therefore that even though the Union had
other economic objectives when it struck on August 18,
one of the reasons was the Respondent's failure to dis-
cuss and/or negotiate over a health insurance contribu-
tion plan in violation of Section 8(a)(5), and that the
strike was caused by the Respondent's unfair labor prac-
tice as alleged in paragraphs 10 and 14 of the 'com-
plaint. 2 8
Paragraph 12 of the complaint alleges that 'since
August 15, 1980, the Respondent has failed and refused
to m' eet for the purpose of collective bargaining, which
conduct ' Prolonged the strike. The record shows that
Moore attempted to set up bargaining sessions with Mor-
ford on August 18 and October 16 and 29 and that
LaRue Moore called Morford on August 19 regarding a
meeting to "work this whole mess out." On each occa-
sion, Morford 'referred them to his attorney During his
October 29 conversation with Jim Morford, 'Moore in-
formed Morford that he had "tried to call your attorney.
He keeps stonewalling me. He will not return my tele-
phone calls." As Moore went on to explain to Morford,
it may- not have been his fault that Haynes did not return
the calls, but the ultimate responsibility for bargaining
lay with' Morford. Such is the law. NLRB v. Exchange
Parts Co., supra; Lawrence Textile Shrinking Co., supra.
By failing to either personally respond to the Union's re-
quest to meet, and/or by failing to arrange for its negoti-
ator-attorney to respond to' the request, the Respondent
refused to bargain with the Union as alleged in para-
graph 12 of the complaint, which conduct prolonged the
unfair labor practice strike as alleged in paragraph 14.29
28 The fact Respondent may have bargained in good faith with the
Union commencing in February 1981, in no way excuses its unlawful
conduct prior thereto
29 I do not conclude, as the General Counsel argues, that Moore's
phone calls to Haynes' office constituted a request to bargain In none of
the calls did Moore request a meetnig, and it was not shown at what
point in time Haynes was actually engaged to negotiate on Respondent's
behalf As the aforementioned cases point out, the responsibility to re-
spond to the Union's request to bargain lay in the Respondent
KANSAS VAN & STORAGE CO 865
The complaint alleges and the Respondent admiWthat,
on December 18, the following employees who engaged
in the strike made an unconditional offer to return to
their former positions of employment:
James H. Hendricks Basil Gibbs
Frank E. Bath, Jr. Robert A. Nicolay
Daniel P. Jones Sharon L. Coulter
Reuben Wabnum
It is alleged and admitted that on December 23 Respond-
ent refused to reinstate them. Respondent contends they
were economic strikers and had been permanently re-
placed prior to December 23. The law is clear that unfair
labor practice strikers are entitled to reintstatement on
their unconditional offer to return to work, displacing if
necessary any replacements during the strike. The Re-
spondent's refusal to reinstate them is discriminatory and
violates Section 8(a)(3) and (1) of the ,Act.3°
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(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, and at all material times
herein has been, and it now is, the exclusive collective-
bargaining representative of Respondent's employees in
the following unit which is appropriate for collective-
bargaining purposes within the meaning of Section 9(b)
of the Act:
All truck drivers, helpers and shop employees em-
ployed by Respondent, at its facility located' at 220
North Qtiincy, Topeka, Kansas, but excluding the
master mechanic, office clerical employees, profes-
sional employees, guards and 'supervisors as defined
in the Act.
3 By failing and refusing to negotiate with the Union
on the subject of a health contribution plan; and by fail-
ing and refusing to meet with the Union for the purpose
of collective bargaining on or after August 15, 1980, as
3 ° I have reconsidered my ruling rejecting G C Exh 19(a), as request-
ed in the General Counsel's brief, and reaffirm my ruling It is clear-that
Respondent considered Gibbs, Coulter, and Wabnum to be strikers even
though Moore's testimony leaves some doubt However, their status,
whether as temporary, part-time or full-time employees, can best be de-
termined at the compliance stage See -Marlene Industries Corp, 255
NLRB (1981), United Maintenance Co, 214 NLRB 529 fn 22 (1974)
the exclusive representative of its employees in the
above-described appropriate bargaining unit, Respondent
violated Section 8(a)(5) and (1) of the Act.
4. The strike which commenced on August 18, 1980
was an unfair labor praCtice strike which was caused by,
and prolonged by, Respondent's unfair labor practices.
5. About December 18, 1980, the following unfair
labor practice strikers made an unconditional offer to
return to work:
James H. Hendricks Basil Gibbs
Frank E. Bath, Jr. Robert A. Nicolay
Daniel P. Jones- . - Sharon L. Coulter.
Reuben Wabnum
6. By failing and refusing to reinstate the above-named
unfair labor practice strikers to their former positions of
employment, Respondent violated Section 8(a)(3) and (1)
of the Act.
7 The above-described unfair labor practices affect
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that it cease and
desist therefrom, and take certain affirmative action de-
signed to effectuate the policies of the Act. My recom-
mended Order will require Respondent to bargain in
good faith with the Union on request, including the sub-
ject of a health insurance contribution plan. I shall also
recommend that the Respondent be required to offer the
unfair labor practice strikers named above immediate and
full reinstatement to their former jobs or, if such jobs no
longer exist, to substantially equivalent jobs, without
prejudice to their seniority rights and privileges previ-
ously enjoyed, discharging, if necessary, any replace-
ments hired in their former jobs, and make whole such
employees for any loss of earnings suffered by reason of
their unlawful denials of reinstatement, from the date of
their unlawful denials of reinstatement to the date on
which they are fully reinstated or declined reinstatement,
less their respective net earnings during such period,
with backpay computed in the manner prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
set forth in Isis Plumbing Co, 138 NLRB 716 (1962), and
Florida Steel Corp., 231 NLRB 651 (1977).
[Recommended Order omitted from publication.]