A W Cullum & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1970

182 N.L.R.B. 16 (N.L.R.B. 1970)

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A W Cullum & Company , Inc and General Drivers,
Warehousemen and Helpers Local 745 , affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America Case
16-CA-3551
April 20, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On December 31, 1969, Trial Examiner Josephine
H Klein issued her Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision The Trial Examiner further
found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended dismissal of these allegations There-
after, the Respondent and the Charging Party filed excep-
tions to the Trial Examiner's Decision with supporting
briefs, and Respondent filed a brief replying to the
Charging Party's exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions, the briefs, and the entire record in
the case, and hereby adopts the findings,' conclusions,
and recommendations2 of the Trial Examiner
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H KLEIN, Trial Examiner Upon a charge
filed against A W Cullum & Company, Inc (Respond-
ent), by Dallas General Drivers, Warehousemen and
Helpers Local 745, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union), on February 25, 1969,
a complaint was issued by the Regional Director on
April 24, 1969 Pursuant to due notice, a hearing was
conducted on the complaint in Dallas, Texas, on June
24, 25, and 26, 1969 All parties were represented by
counsel and were given opportunity to present evidence
and to examine and cross-examine witnesses The parties
waived oral argument and thereafter all three parties
filed briefs
Upon the entire record, observation of the witnesses,
and consideration of the briefs, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I JURISDICTIONAL FINDINGS
A Respondent, a Texas corporation with its principal
place of business in Dallas, Texas, is engaged in the
wholesale grocery business During the past 12 months,
a representative period, Respondent, in the course of
its business operations, purchased, transferred, and
delivered to its warehouse in Dallas, Texas, goods,
wares, and merchandise valued in excess of $50,000
which were shipped and transported directly from points
outside Texas Respondent is now, and was at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act '
B The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
II THE UNFAIR LABOR PRACTICES
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner , and hereby orders that the
Respondent, A W Cullum & Company, Inc , Dallas,
Texas, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recom-
mended Order
' In the absence of exceptions thereto we adopt pro forma the
Trial Examiners conclusion that Respondents proposed protection
of rights warehouse security and productivity clauses were
all mandatory subjects of collective bargaining
Y In affirming the Trial Examiner s recommendation that Respondent
not be required to execute a checkoff provision we rely solely upon
H K Porter Company Inc v N L R B 397 U S 99
A The Issues
The complaint alleges an overall continuing refusal
by Respondent to bargain with the Union in good faith
In subparagraphs, the complaint sets forth specific areas
in which the refusal to bargain was reflected 2 In this
Decision the evidence will be discussed in accordance
with the specific suballegations of the complaint Howev-
er, in keeping with the nature of the complaint and
the manner in which the case was presented, the ultimate
determination will be made on the basis of the totality
of Respondent's conduct (Patent Trader, Inc , 167
' National Labor Relations Act as amended (61 Stat 136 73 Stat
519 29 U S C sec 151 et seq )
4 The particular form of the complaint was apparently dictated by
the course of the prior proceeding In Case 16-CA-3307 the original
complaint was quite general Respondent s demand for a bill of particulars
was granted in part and the complaint was then amended to specify
particular forms which Respondent s refusal to bargain allegedly took
182 NLRB No 7
a W CULLUM & CO , INC
NLRB 842 (TXD), enfd in pertinent part 415 F 2d
190 (C A 2))
In addition to an overall refusal to bargain , the com-
plaint alleges, as an independent unfair labor practice
under Section 8(a) (5), that Respondent unilaterally grant-
ed merit wage increases to a substantial number of
unit employees in January 1969
B Background
The Union was certified as the collective-bargaining
representative of Respondent's warehouse employees3
on December 11, 1967 4 No agreement on a contract
having been reached between Respondent and the Union,
a strike commenced at the warehouse on April 22,
1968, and the Union filed an unfair labor practice charge
alleging an unlawful refusal by Respondent to bargain
in good faith (16-CA-3307) A second charge, alleging
unlawful refusal to reinstate strikers , was filed (and
amended) in August 1968 (16-CA-3399) A hearing on
a consolidated complaint was held before Trial Examiner
Richard Taplitz on October 22 and 23, 1968 On the
latter date the Company and the Union reached an
agreement settling the strike Simultaneously , an infor-
mal settlement of the unfair labor practice proceeding
was reached by the parties and approved by Trial Exam-
iner Richard Taplitz and then by the Regional Director
on October 28, 1968 5 So far as here relevant, the
prior settlement agreement, which was introduced into
evidence in the present case ,', provided that Respondent
would bargain in good faith with the Union and would
post the customary notice for 60 days It further recited
"It is agreed that upon compliance the General Counsel
will file a motion to dismiss with the Trial Examiner °'
No such motion has been filed, with the result that
the prior case has never been closed
Respondent moved to dismiss the present proceeding
on the basis, in part at least, of the earlier settlement
Counsel said
We also move to dismiss the complaint for the
reason that this Respondent did fully comply with
its obligation to bargain with the Charging Union
as a result of a settlement agreement that was
entered into last fall for and beyond the period
covered by the settlement agreement , as a matter
of fact, several months covered by the settlement
agreement and we say therefore that the certification
here as extended by the settlement agreement had
long since expired and we have no further obligation
The unit is not in dispute
The Union had also been certified in 1964 However bargaining
at that time did not result in a contract
i By order dated November 14 1969 I notified the parties that
official notice was being taken of the record in the prior consolidated
proceeding
" Respondent objected to the introduction of the settlement agreement
into evidence because in counsel s words it contained the following
paragraph Nothing in this agreement shall be considered as an admission
of the committing of any unfair labor practice nor may it be utilized
as evidence in an) unfair labor practice proceeding ' (Emphasis sup
plied ) The italicized portion was misread the actual language being
nor may it be used as evidence of any unfair labor practice
17
toward the charging party in this matter and the
complaint should therefore be dismissed
I certainly recognize that after the agreement
to an informal settlement , as we did, we had a
duty to bargain for a reasonable period of time,
not necessarily 60 days, certainly not-I simply
said that we did not only bargain for-we bargained
long beyond that period of time and for a reasonable
period of time
the compliance with the terms of the settle-
ment agreement was ruled upon by the Regional
Director some months ago
I did not urge upon this Examiner the merits
of compliance or non -compliance because that was
a fact accomplished The Board ruled we had com-
plied with the settlement agreement
In response to a posthearing order, Respondent sub-
mitted photostatic copies of letters by the Regional
Director to union counsel dated December 18, 1968,
and May 12, 1969 The first of these letters concludes
After careful consideration of the position of the
parties , I do not feel that the Settlement Agreement
has had full opportunity to succeed However, I
do hope that negotiations will resume in the very
near future As you know, I am most anxious
to see the parties negotiate in good faith with
the specific objective of solving their labor relations
problems
Accordingly, I am denying your request to set
the Settlement Agreement aside at this time, but
I reserve a keen interest in future conduct which
may have a tendency to violate the terms of the
Settlement Agreement
The second letter reads
It appears that a remedial order in Case No
16-CA-3551 would adequately remedy all outstand-
ing unfair labor practices Accordingly, I deny your
request to move to reopen the record in Cases
No 16-CA-3307 and 16-CA-3399
It thus clearly appears that there has been no determi-
nation that Respondent has complied with the prior
settlement agreement for any period of time I according-
ly reaffirm my denial of Respondent ' s motion to dismiss
the complaint In addition , I hold that Respondent's
conduct may be considered and judged as of October
29, 1968 , the day after the Regional Director approved
the settlement agreement , and continuing thereafter,
even though such conduct, if violative of the Act, may
also be violative of the settlement agreement, which
has not been set aside 7 Compare N L R B v Harris-
' Manifestly no weight can be given to the evidentiary record in
the prior case since the hearing was not completed and I thus made
no findings or conclusions In the present case the General Counsel
disavowed any intention or desire to go behind the settlement and
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodson Co , 179 F 2d 720, 723 (C A 4)
C The Evidence
The cast of characters
Respondent 's representatives Throughout the negotia-
tions M D Sampels, Esquire , was Respondent ' s chief
negotiator and spokesman He attended all the negotiat-
ing sessions which were held at the offices of his law
firm Sampels also served as Respondent ' s principal
attorney at the hearing He did not take the stand
as a witness Houston E Holmes, Jr , Esquire, who
appeared as associate counsel with Sampels in this pro-
ceeding , had apparently attended all or most of the
negotiating sessions He did not testify at the hearing
Charles G Cullum , Respondent ' s president, was
Respondent ' s only witness at the hearing He attended
all except the first of the negotiating sessions While
Cullum actively participated in the negotiations, the
evidence establishes that his role was secondary to
Sampels Mr Harriston , Respondent ' s personnel
director , attended at least the one meeting that Cullum
missed
The Union's representatives Fred 0 Weldon, Jr ,
Esquire , was the Union ' s chief negotiator, spokesman,
and principal witness He had attended all but one
of the negotiating sessions and drafted the Union's
contract proposals He did not file an appearance as
counsel for the Union until toward the end of the
hearing , after he had completed his testimony Shortly
before the prior hearing , Weldon had replaced David
R Richards , Esquire , who had previously served as
the Union ' s chief negotiator
Also present at the bargaining sessions here involved
was Union President Charles Haddock , who testified
on behalf of the Union , primarily concerning the one
negotiating meeting that Weldon had not attended Other
union representatives involved in negotiations with
Respondent at various times were Assistant Business
Representative C M Roseborough, who testified briefly,
and Business Agent Charles Rogers
1 Overall refusal to bargain
a Dilatory tactics
As reflecting a pattern of refusal to bargain in good
faith, the complaint alleges that Respondent "refused
to meet with the Union at reasonable times and places
for the purpose of engaging in collective bargaining "
The following is a chronological summary of the course
of the negotiations
October 23, 1968 At the settlement meeting,
the Union requests a negotiating session and Had-
dock, overruling Weldon, accedes to Sampels'
request for 2 weeks' grace
no evidence was presented which might establish presettlement unfair
labor practices
November 1, 1968 Richards writes Sampels sug-
gesting a meeting during the week of November
1 and requesting specified up-to-date payroll data
November 7, 1968 Roseborough writes Cullum
requesting a bargaining meeting
November 12, 1968 Cullum writes Roseborough
that Cullum is forwarding Roseborough's letter to
Sampels, who is out of town
November 26, 1968 Sampels writes Richards
that Sampels tried unsuccessfully to reach Richards
by phone (at an unspecified date), that during the
week of November 11 Sampels "was out of town
and otherwise unavailable" for negotiating, that
Richards was out of town the week of November
18, that Sampels has "requested an up-to-date pay-
roll but [has] not received same " Sampels
suggests that Richards telephone "so we can discuss
available dates "
November 28 or 29 In a telephone conversation,
Weldon requests a bargaining session on December
4, 7, 9, or 11 Sampels says he will check with
Cullum and call Weldon back In answer to Sampels'
question, Weldon says the Union will offer some
concessions
December 3, 1968 Sampels writes Weldon that
Cullum is serving as acting mayor until early the
next week, after which he will be in California
and, upon his return, will call Sampels "in order
that we may be in contact with regard to an
appropriate date for negotiations "
December 11, 1968 In answer to a letter of
November 4, 1968, Weldon writes to Sulton Boyd,
Regional Compliance Officer of the Board, with
a copy of the letter to Sampels Weldon's letter
details the Union's unsuccessful efforts to secure
payroll data and a bargaining session and requests
that the Regional Director withdraw his approval
of the settlement agreement for noncompliance
December 17, 1968 Sampels sends Weldon a
letter (with copy to Boyd) in response to Weldon's
letter of December 11 to Boyd Sampels says he
has still been unable to "discuss dates with Mr
Cullum because of his absence from the city"
and that payroll data will be presented "at our
negotiating session "e
December 26, 1968 Weldon writes Sampels
requesting a bargaining meeting on December 30
December 30, 1968 Sampels' secretary writes
Weldon that Sampels "has been out of the city"
and he will be given Weldon's letter upon his
return (date of expected return not stated)
January 3, 1969 Weldon writes Sampels concern-
ing the Union's "continuing request" for payroll
data and "for a meeting with [Sampels] or some
representative of" Respondent for negotiation
8 On December 18 1968 the Regional Director denied Weldon
request that the settlement beset aside See discussion above
A. W. CULLUM & CO., INC.
January 3, 1969: Sampels writes stating they
can meet at Sampels' office at 2:30 p.m. on January
89
January 6, 1969: Cullum writes Haddock that
an employee evaluation is in progress for merit
wage increases.
January 8, 1969: First negotiating session begins
around 2:45 p.m. Union representatives reject Sam-
pels' request that they postpone the meeting until
January 28. At 4 p.m. Sampels leaves to meet
a prior unrelated commitment, for which he says
he is already late.
January 10, 1969: Weldon addresses to Sampels
a letter which, inter alia, objects to Respondent's
course of bargaining and requests that Sampels
or some representative "with authority to bind
the Company" meet with the Union representatives
once a week for at least 4 hours beginning with
the week of January 13. Weldon offers to meet
weekends and evenings, if necessary. Weldon also
repeats the request for payroll data Richards origi-
nally requested by letter of November 1, 1968,
and adds a request for detailed information concern-
ing proposed merit wage increases. Union requests
further notice if Company is in a hurry about
the merit increases.
January 12, 1969: Merit wage increases are made
effective for 24 unit employees.
Week of January 13, 1969: Sampels and Cullum
out of town.
January 30, 196919: Negotiating session is held
morning and afternoon, for a total of 4 or 5 hours.
Union again requests data relevant to the "pro-
posed" merit wage increase and is informed that
the increases have already been put into effect.
Respondent presents its current" contract proposal
and part of the payroll data requested on November
1, 1968. Union agrees to present its contract propos-
al before the next meeting.
February 4, 1969: Weldon writes Sampels, pur-
porting to review the January 30 meeting; again
requesting wage and payroll data; objecting to the
merit wage increases; and stating that the Union's
revised contract proposal, covering matters dis-
cussed in the letter "and other modifications"
should reach Sampels before the meeting scheduled
for February 14.
February 14, 1969: Negotiating meeting starts
at 10 a.m. Although originally scheduled for all
day, the meeting is terminated at noontime because
of other commitments on the part of Sampels and
Cullum. Respondent rejects Union's renewed
request that the Company designate an alternative
9 Weldon's and Sampels' letters of January 3 apparently crossed
in the mails
10 This meeting, originally scheduled for January 28, was postponed
because of Sampels' unavailability.
11 Both parties had previously made contract proposals which were
pending when the strike occurred and negotiations were suspended
in April 1968
19
bargaining representative. Respondent provides
material concerning the merit wage increases and
additional payroll data previously requested. Union
does not present a current written proposal.
February 26, 1969 : Negotiating session is held.12
Haddock , serving as Union ' s spokesman in Wel-
don's absence , presents Union 's current contract
proposal. Sampels requests adjournment so he can
study the Union's proposal , but Haddock states
that 95 percent of it is taken from Respondent's.
Several disputed items and the Union ' s unfair labor
practice charge of February 25 are discussed.
Respondent objects to bargaining with the pending
charge as "a gun at [its] head ." Haddock indicates
there would be no apparent reason for proceeding
before the Board if the parties execute a contract.
March 6 , 1969: Negotiating session is held. Union
presents its wage proposal , which was left open
in its prior proposal because the Union had just
learned that merit increases had actually been grant-
ed to about one -third of the unit employees . Several
matters are discussed without any substantial agree-
ment on disputed matters. Company representatives
resist Union ' s attempt to discuss wages and termi-
nate the meeting by walking out.
March 21 , 1969: Bargaining session is held, lasting
about an hour or less. After reviewing , item by
item , the major points of disagreement , and ascer-
taining that Respondent ' s position has not changed
on any of them , Weldon states that an impasse
had been reached as a result of Respondent ' s refusal
to bargain . Sampels says that the Union has declared
an impasse and the Company ' s representatives are
willing to continue negotiations . Union representa-
tives then walk out.
Weldon testified , without contradiction , that when
he complained on several occasions concerning Respond-
ent's failure to provide the payroll data it had promised,
Sampels took the position that the Union could file
a charge with the Board and the parties could then
litigate . Weldon also testified without contradiction that
on several occasions Sampels had threatened to throw
the union representatives out of his office . Because
of that , Weldon requested that the negotiations on Febru-
ary 14 be held somewhere other than in Sampels ' office,
but his request was refused.
Cullum had been a member of the Dallas City Council
since May 1, 1965. During the period here involved
he also served as Acting Mayor of Dallas and on various
committees and made numerous speeches . His civic
responsibilities consumed a considerable amount of time.
He also was absent from the city on business.13
" The length of this meeting does not appear However, Weldon's
testimony was uncontradicted that only one meeting (that held on
January 30, 1969) was held in both the forenoon and the afternoon
1S Cullum testified "In total, then, during the months of November
and December I' had approximately 30 days of business in which I
was obligated to the City and/or the County to perform these duties
]During the month of December I also made one emergency trip to
California, which was of a business nature " He also made a trip
to Florida, but the record does not show the purpose thereof,
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no reason to doubt the veracity of the explana-
tions given for Sampels' unavailability for negotiations
on various occasions However, because Sampels him-
self did not testify, and thus was not subject to either
direct or cross-examination concerning his activities,
no specific finding is made in this connection Cf Braden-
ton Coca Cola Bottling Co 162 NLRB 38, 45, enfd
402 F 2d 84 (C A 5)
b Specific contract terms
When negotiations broke off and the stnke started
in April 1968 there were three major issues in active
dispute between the Union and Respondent seniority,
union dues checkoff, and employees' right to honor
picket lines In addition, the duration of the contract
and wage rates had not been extensively discussed
However, Weldon credibly testified that no great difficul-
ty was anticipated in reaching agreement on wage rates
Upon resumption of negotiations following the settle-
ment , the same issues appeared as stumbling blocks,
together with additional requests by Respondent for
contractual provisions concerning employee productivity
and shrinkage or pilferage of goods As detailed below,
the complaint specifies these items as matters as individ-
ual items on which Respondent failed to meet its statuto
ry obligation of good-faith bargaining
(1) Seniority
In its original contract proposal , made before the
strike, the Union had included a detailed provision which
would make seniority controlling in a broad range of
employee rights and privileges Respondent had refused
to recognize seniority as the basis for any employee
rights It maintained that it was opposed in principle
to recognizing seniority rights, believing that the Compa-
ny should have complete discretion to encourage superior
performance by individual employees regardless of their
relative seniority
Although the Union had later modified its seniority
demand, restricting the scope of its applicability, the
Company had yielded only to the extent of agreeing
to list "length of service" as one of eight factors consid-
ered in the evaluation of employees for merit wage
increases and promotions The Company's final prestrike
contract proposal provided
Article 2 Promotion and Advancement
3 In evaluating employees for merit wage increases
or for promotions to higher-paying jobs, the follow-
ing factors will be taken into consideration Knowl-
edge, length of service, ability, skill, character,
effort , teamwork and experience The Company
shall be the sole judge in evaluating its employees
and its decision shall be final and conclusive and
not subject to grievance and arbitration
[Emphasis supplied I
At the first poststrike bargaining session , held on
January 8, 1969 , Respondent said that its position had
not changed and that it would never recognize seniority
as controlling any personnel matters Sampels stated
emphatically that the Company refused to have the
word "seniority" in a contract Weldon then sought
to discuss the possibility of applying a seniority criterion
to individual components of the employment relation-
ship, but Sampels said "that he wouldn't talk about
it in pieces, he had to have a whole clause before
he could consider it " According to Weldon, at the
January 8, 1969, meeting Sampels finally agreed to rank
employees by length of service," but would not agree
to ascribe any effect to such ranking
At the second poststrike negotiating session, on Janu-
ary 30, 1969, Respondent presented a revised contract
proposal Article 2, on promotion and advancement,
was the same as that in its prestrike proposal, except
that in Section 3, quoted above, the word "training"
was substituted for the phrase "length of service" in
the list of matters to be considered by the Company
in determining merit wage increases and promotions
Cullum was unable to explain this change of language,
indicated that he had not been aware of it, and finally
said it must have been "an oversight " On its face,
the change could not have been inadvertent but must
have resulted from affirmative editing or revision of
the prior proposal Although there is no express evidence
to this effect, Sampels undoubtedly drafted Respondent's
contract proposals Since Sampels did not testify, I
infer and find that he intentionally substituted " training"
for "length of service" in the list of factors which
Respondent proposed should be controlling as to merit
wage increases and promotions 15
At subsequent meetings the question of seniority was
raised and Cullum consistently maintained that the con-
cept was contrary to the Company's long-established
policies It was pointed out that Pantry Foods, a Califor-
nia affiliate of Respondent, was party to a collective-
bargaining agreement containing a broad seniority provi-
sion 11 According to Cullum, Pantry Foods was a member
of bargaining association and the seniority provision
was in effect when Pantry Foods was acquired by Cul-
lum 17 Cullum testified that he had never read the Pantry
Foods contract
(2) Checkoff
The complaint alleges that Respondent refused to
bargain in good faith about the checkoff of union dues
The Union's demand for a checkoff was, along with
seniority, one of the major matters of dispute between
the parties before the strike /8
'" Respondent eventually gave the Union a list of current unit employ
ees with their dates of hire
" On February 14 1969 in response to the Union s request for
information concerning the Company s existing merit wage increase
program the Company listed the relevant factors as training ability
skill character effort teamwork experience and length of service
'" Seniority shall be recognized on a company wide basis within
the jurisdictional area of the Union covering all employees from the
date of employment and shall prevail in reference to vacations transfers
layoffs rehiring and promotions as set forth below
" The term of the unsigned agreement in evidence is of November
6 1967 through November 1 1970 Cullum acquired Pantry Foods
in 1966
i" The complaint in the prior proceeding had alleged a failure to
bargain in good faith over wages seniority and checkoff
A. W. CULLUM & CO., INC.
After the strike, the Union renewed its demand for
a contractual provision for checkoff of union dues.
When pressed for the reasons for its opposition to
a checkoff, on January 8, 1969, Respondent's representa-
tives said, in effect, that: (1) the collection of dues
is the Union's job; (2) checkoff forces employees to
join and remain members of the Union; (3) checkoff
creates a conflict of interest between the employees
and the Company; and (4) checkoff would require a
rearrangement of the Company's bookkeeping methods.
Apparently to meet objection (2),• the Union offered
to reduce the period of revocability of checkoff authori-
zations from I year to 30 days. Respondent still refused
to grant a checkoff provision.
The Union then suggested that, instead of a checkoff,
the Company might agree to pay the employees in
cash, rather than by check, one day a month and allow
the Union to set up a table at the plant for dues collection
that day. The Company replied that the employees'
wives would undoubtedly object to any payment of
wages in cash. The Union thereupon dropped its request
for cash payment, but asked for the right to set up
a dues collection desk at the warehouse on one payday
per month. The Company rejected those suggestions.
Major discussion of the checkoff issue apparently
revolved around the Company's complaint as to the
expense involved. The Company conceded that it already
made deductions from employees' pay for United Givers
Fund, insurance,, and the purchase of tools, in addition
to social security and income tax. Although Cullum
first said that the Company did not make deductions
from wages for the employees' credit union, he later
said that he had been in error and that 'the Company
did in fact honor employees' requests' for such deduc-
tions.
Respondent requested that the Union undertake to
assume at least a substantial portion of the costs to
the Company of the checkoff. Company representatives
said that they were not concerned primarily with the
direct costs of checking off union dues as such but
rather with the overall costs of additional deductions
which would follow upon the precedent established there-
by. Both in the course of the contract negotiations
and in testifying at the hearing Cullum maintained that
if the Company were to check off union dues it would
be met with other similar requests by nonunit employees,
such as requests for deductions and transmittal of
church, club, or lodge dues and payments to finance
companies. The Union said that, upon securing adequate
information as to the direct costs of checking off union
dues, it would consider defraying these expenses to
some extent, possibly in the. neighborhood of 3 cents
to 5 cents per, employee per month. The Company
never supplied any relevant cost data.
Weldon testified that he was never able to understand
the Company's position that a checkoff of union dues
would create a "conflict of interest" between the Compa-
ny and the employees. This contention was not repeated
21
or explained as such by Cullum in testifying at the
hearing.'s
(3) Shrinkage and productivity clauses
In its January 30, 1969, contract proposal Respondent
included a provision entitled "Warehouse Security,"
providing that "the Union shall assist the Company
in taking steps to correct . . . shrinkage" if the Compa-
ny's shrinkage rate exceeded the national average and
"the Union shall be willing to share the responsibility
for said shrinkage" if the Company's rate did not come
down to the national average within 6 months. The
Union rejected this proposal, offering a strong provision
for summary discharge or other discipline of employees
for theft but maintaining that the Union could not,
in effect, become an insurer.
Respondent thereupon submitted a revised proposal,
reading:
When shrinkage in the warehouse rises above
the national average for grocery warehouses as
reported by the national trade groups, then the
Union shall assist the Company in taking steps
to correct the shrinkage, including, but not limited
to:
(1) Utilization of private investigative organiza-
tions to determine responsibility for shrinkage;
(2) In the event the steps taken pursuant to
(1) above are not successful for determination of
the responsible individual or individuals for such
shrinkage, polygraph examinations conducted under
the supervision of the Company and the Union
would follow; -
(3) In the event that the steps taken pursuant
to (1) and (2) above reveal that a member or mem-
bers of the Union are responsible therefor, such
member or members shall be discharged by the
Company, and its action shall be final and not
subject to grievance and arbitration pursuant to
this agreement;
(4) All costs incurred pursuant to action taken
as outlined in (1) and' (2) above will be shared
equally by the Company and the Union, and the
control of shrinkage shall be a joint responsibility
of both the Company and the Union.
The Union found this alternative even more offensive
than the original. The Union pointed out that the Compa-
ny's original prestrike contract proposal had provided
for lie detector tests but the Company had finally agreed
to eliminate that provision because of the Union's opposi-
tion as a matter of principle, supported by the refusal
of courts in several jurisdictions to admit the results
of such tests as evidence.
` B According to Weldon, Cullum argued that union dues checkoff
was of benefit only to the Union and not to the employees. One
may speculate that such a contention might underlie the "conflict-
of-interest " position , with the Company apparently allying itself with
the Union as against the employees Weldon maintained the strength
of the Union and the employee solidarity arising from the checkoff
were of benefit to the employees
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears that some time previously the Company
had experienced considerable pilferage and several
employees had been- terminated after being required
to take'lie detector tests. Cullum maintained that pilfer-
age increased during union organizing campaigns. He
indicated his opinion that employees regarded a union
campaign as a protective shield against discipline for
misconduct.
Considerable evidence was presented concerning a
"Productivity" clause included in Respondent's contract
proposal of January 30, although the complaint does
not allege this as a specific example or element in
Respondent's refusal-to-bargain pattern. Since the issue
was fully litigated and Respondent has discussed it in
its brief, it will be considered here.
Cullum testified that, although the Company's equip-
ment andfacilities were modern and efficient, its employ-
ees' productivity rate was consistently lower than the
national and regional averages, as reported by trade
associations. Therefore, in its post strike' contract propos-
al, Respondent had inserted a provision which would
call on the Union to "share the responsibility for"
bringing employee productivity up to the national level.
The Union said that it could not assume any such
financial responsibility. As a possible solution, the Union
proposed an incentive pay'plan under which employees
would receive additional cooperation for production
above specified amounts. The Company rejected this
proposed solution on the grounds that: (1) the problem
was not at the top of the productive range but rather
arose at the average rate; well below the incentive
levels; and (2) "incentives" would be adequately provid-
ed by the Company's proposal for merit wage increases.
No agreement was reached as to either of the shrinkage
or productivity clauses.20
The Union contended that the, shrinkage and prod-
uctivity problems could be adequately handled under'
the suspension and discharge provision, as to which
agreement had already been reached. However, Cullum
testified that the Company was not interested in discharg-
ing or suspending employees, but rather "wanted a
way to develop productivity without getting into suspen-
sion and discharge and grievance, because this doesn't
solve the productivity problem." i
(4) "Protection of Rights"
The Union's contract proposal contained a provision
assuring employees the right to refuse to cross primary
picket -lines. Respondent countered with a provision
under which employees would be, subject to summary
discharge or discipline, without recourse to grievance
procedure or arbitration, for any refusal to cross a
picket line.21 Then the Company suggested that the
20 In testifying, Weldon accused Cullum of having made racially
disparaging remarks about Respondent's employees in connection with
the shrinkage and productivity, problems Cullum denied having made
the statements attributed to him I 'deem it unnecessary to resolve
this conflict` ' '
21 In his brief, the General Counsel erroneously says that Respondent
introduced its proposal "for the first time" on January 30, 1969 There
subject be eliminated ^ and the agreement left silent on
the picket line issue .21
1
The Company maintained that its "Protection of
Rights" clause was necessitated by its experience in
1965 when the Butchers Union had apparently joined
the Teamsters Union in picketing Respondent, its retail
affiliate and customers. In support of its position,
Respondent introduced in its evidence two handbills
signed and distributed jointly by the Butchers and the
Teamsters locals.
Respondent adamantly refused to withdraw its demand
for its "Protection of Rights" clause. Union President
Haddock, on the other hand, maintained that he' would
never sign an agreement containing such a provision.
He insisted that either the Union's original opposite
proposal be included or that no "Protection of Rights"
clause whatsoever be adopted.
C. Unilateral Wage Increase
The complaint alleges, as an independent violation
of Section 8(a)(5), that in January 196923 Respondent
unilaterally granted wage increases to employees in the
bargaining unit. Respondent concedes that 25 employ-
ees,24 about one-third of the unit, had been given raises,
but maintains that they were merit increases following
a long-established pattern and thus were permissible.
On January 6, 1969, Cullum wrote to the Union advis-
ing that there was in, process an evaluation of employees
for the purpose of granting merit wage increases in
"continuation of long-established company policy." At
the first negotiating session, held in January 8, 1969,
the union representatives requested documentary mate-
rial to enable the Union to appraise the Company's
claim of a long-established pattern. The Union spokes-
men said that, until they received such data, they would
be unable to determine whether they would object to''-°"
the increases. The Union asked that it be further advised
if the Company believed the increases became urgent.
The Company agreed to provide the requested informa-
tion, along with the other payroll data which union
counsel Richards had requested on November 1, 1968.
At the next meeting, on January 30, 1969, when
the Union asked for the promised wage and payroll
data, it was informed that merit wage increases had
already been granted to 25 unit employees. According
to Cullum, Respondent's established policy is to conduct
employee evaluations on a regular quarterly basis .2.1
is no article 25, in Respondent's last prestrike contract proposal as
introduced into evidence by the General Counsel However, in the
record of the prior hearing, Respondent's proposal contains Respondent's
"Protection of Rights" provision as article 25, but it has been crossed
out in handwriting
22 Agreement had previously been reached on a "Union Liability"
article, containing a no-strike no-lockout clause
13 The complaint alleged • the date as "[oln or about January 25,
1969 " Respondent's records, however, establish the effective date as
January 12, 1969
14 Respondent provided a list of 25 employees Of these 20 received
increases on January 12, 1969, 3 on January' 13, '1 on January 29
One, J Johnson, appears not to have received' an increase, making
the total 24 rather than 25
23 He testified as follows "Generally these things are within the
A W CULLUM & CO , INC
Each employee is evaluated after his first 6 months'
service and at least every 6 months thereafter The
merit increase program has never been reduced to writ-
ing, but, according to Cullum, an employee handbook
refers generally to the Company's policy of rewarding
merit The handbook was not produced
Cullum also testified that in 196526 he had consulted
a representative of the Board who approved the Compa
ny's granting merit wage increases Cullum maintained
that since that time he had acted in accordance with
the advice so given by the Board's agent The record
contains no details Cullum further testified that merit
increases had been granted, according to the established
policy, in February 1968,27 but that the pattern was
then disrupted when the strike commenced and an across-
the-board wage increase was given ground April 22
1968 According to Cullum, no further increases were
given to unit employees in 1968 because of these two
and because, during the strike, which lasted through
October, there were few, if any, employees in the unit
with sufficient length of service to be eligible for merit
increases 28
MONTH UNIT EMPLOYEES NONUNIT EMPI OYEES
1963 1964 1965 1966 1967 1968 1963 1964 1965 1966 1967 1968
Jan 0 0 1 0 0 1 Jan 1 2 8 14 3 4
Feb 0 7 6 0 1 23 Feb 1 2 1 0 0 0
Mar 11 2 5 0 16 0 Mar 3 1 1 0 1 3
Apr 0 0 1 18 0 1 Apr 7 6 0 1 2 3
May 0 0 2 5 0 0 May 2 4 18 7 2 1
June 0 0 0 0 0 0 June 4 0 1 0 1 3
July 0 0 1 1 0 0 July 3 5 2 6 4 0
Aug 0 1 4 0 0 2 Aug 0 2 0 1 0 1
Sept 0 1 2 0 12 0 Sept 2 1 0 0 3 2
Oct 0 0 0 1 0 0 Oct 0 3 0 0 1 4
Nov 2 0 15 0 0 0 Nov 13 11 7 11 9 7
Dec 0 0 0 0 0 0 Dec 1 I 1 1 0 6
D Discussion and Conclusions
I Refusal to bargain
Like most cases alleging a refusal to bargain in good
faith, the instant case presents the difficult problem
of determining a subjective state of mind Respondent's
corporate state of mind must, of course, be inferred
primarily from the conduct of its representatives
peiiod of four or live weeks after the close of the quartet it
would be January or early February April or early May or the July
or early August are t It would not he in June We ire in the last
month of a quarter now So it will be sometime after the end of
June
2" As previously noted the Union had been certified in 1964 and
there were some unproductive contract negotiations in 1965
2 Written evidence prepared by Respondent shows 23 increases to
unit employees on February 5 1968
28 Documentary evidence shows one merit increase in the unit in
April 1968 and two in August 1968
N L R B v Arkansas Rice Growers, 400 F 2d 565 (C A
8), NLRB v Patent Trader, Inc 415 F 2d 190,
197 And the course of conduct is properly viewed
in its totality Tex Tan Welhausen Co , 172 NLRB
No 93, enfd 419 F 2d 1265 (C A 5) [vacated and
remanded on other grounds 397 U S 8191
The chronology of negotiations, as summarized above,
shows a pattern of "stalling" by Respondent On October
23, 1968, when the settlement agreement was reached,
over 10 months after the Union's second certification,
the Union acceded to Respondent's request for a delay
of 2 weeks for the first negotiating meeting However,
despite continual importuning by the Union thereafter,
2th months elapsed before a first negotiating meeting
was held Respondent's representatives then limited that
session to 12 hours In all there were only six meetings,
for a total of about 12 to 15 hours at most Throughout
this period the Union was urging more frequent and
longer sessions
23
Cullum testified that the Company " resumed the regu-
lar pattern in January of 1969 , and again in April of
1969 " However , no evidence was provided concerning
April 1969 increases , and the complaint contains no
allegation with respect thereto Cullum also maintained
that the Union had been fully conversant with the Com
pany's past practice He said that he had notified Rose-
borough of the pending evaluation on January 6, 1969
only as a matter of "courtesy " and had not anticipated
the possibility of any objection by the Union However,
Cullum did acknowledge that at the January 8, 1969,
meeting Weldon asked for relevant data, asked many
questions , and said the Union could not at that time
either approve or disapprove As heretofore set forth,
the merit wage increases were actually put into effect,
without notice to the Union , before the next bargaining
session and before any relevant wage data was provided
to the Union The following table shows the number
of merit wage increases granted by Respondent in the
years 1963 through 1968, inclusive , as disclosed in the
data provided by Respondent
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent ' s only exculpatory claim is that Sampels
and Cullum were busy with other matters. Respondent
refers primarily to Cullum's civic responsibilities , includ-
ing service a$ a member of the Dallas city council
and during part of November and December 1968, as
acting mayor of the city . Praiseworthy as Cullum's
public service may be, Respondent ' s employees cannot
be made involuntarily to assume the burden thereof.
The law imposed ' on Respondent the affirmative duty
to bargain with the Union and that obligation could
not be met or avoided by Cullum's election to ascribe
a higher ' priority to other matters . Nor was Respondent
relieved of its affirmative obligation to meet with the
Union at reasonable times by the fact that Sampels,
its chief negotiator , is a busy ' practictioner who claims
to have had other professional commitments which pre-
vented more frequent and extended bargaining sessions.
N.L.R.B. v. Exchange Parts Co. 339 F . 2d 829 , 832-833
(C.A 5); A. H. Belo Corp . V. 'N.L.R. B., 411 F 2d
959, 968 (C.A. 5); Bradenton Coca-Cola Bottling Co.,
supra , at 45-46; Skyland Hosiery Mills, Inc , 108 NLRB
1600, 1605.
The Union repeatedly requested that, if Sampels and/
or Cullum were too busy to negotiate , Respondent desig-
nate Attorney Holmes or other representatives with
bargaining authority . Cullum ' s purported explanation for
his refusal to designate a deputy was singularly uncon-
vincing. 'In this connection it should be noted that
Respondent has a full-time personnel director 'While
the Union could not , and did not attempt to, dictate
who should bargain on behalf of Respondent , the Union
did have the legal right to insist that the Company ,
meet at reasonable times through authorized 'representa-
tives. •
Because it has been found that Respondent did unduly
delay the negotiations , employing dilatory tactics, it
is perhaps unnecessary to consider the other allegations
of the complaint "[s]ince one such violation is enough
to trigger the section 8(a)(5) order ." N.L.R.B. v B.
F. Diamond Construction Co., 410 F.2d 462 (C.A. 5),
cert . denied 396 U.S. 835 . However , the evidence con-
cerning other specific allegations will be briefly discussed
because it combines with the chronology to form a
total picture of foot-dragging reluctance by Respondent
to reach any agreement.
While it is a truism that Respondent was not required
to make any concessions or to agree to any of the
Union's specific demands, the Company's positions on
various items give a clue to its state of mind. Tex
Tan Welhausen Co. v. N.L.R.B., 419 F.2d 1265, 1268-69,
and cases there cited ; Stee'lworke 'rs v NI .R.B. (Missis-
sippi Steel Corp.), 405 F .2d 1373, 1376 (C.A.D.C.).
Respondent ' s attitude toward seniority is most sympto-
matic. Seniority was among the major issues separating
the parties when negotiations were previously broken
off and refusal to bargain concerning seniority was one
of the allegations in the prior complaint . After the settle-
ment agreement , Respondent's position on seniority
stiffened even more . In its poststrike contract proposal,
Respondent eliminated " length of service" from the
list of criteria it had itself previously adopted for entitle-
ment to merit wage increases and promotions. Its
"uncompromising attitude" and the increased severity
of its position provide considerable "insight into
Respondent's lack of good faith in its negotiations with
the 'Union." N.L.R.B. v. Tower Hosiery Mills, Inc.,
180 F.2d 701, 705 (C.A. 4). And when Weldon sought
to break the seniority problem down, to see if the
parties might agree to a limited adoption of the principle,
applying it to some of the individual components of
the employment relationship, Sampels refused to consid-
er anything other than a written proposal. Such rejection
of Weldon's flexible approach bespeaks a disinclination
to engage in productive discussion.
Respondent's position concerning the checkoff of
union dues similarly evidences a desire not to reach
agreement. Respondent maintained that if it agreed to
check, off union dues for employees within the unit,
it would be required to make deductions for any pay-
ments that nonunit employees might request, such as
payments to churches, lodges, finance companies, etc.
When questioned concerning the Company's existing
practice to make deductions for the United Givers Fund,
the employees' credit union, insurance, and the purchase
of tools, Cullum protested that such employee authoriza-
tions were "voluntary" and cancellable at will; he made
no reference to the facts that'by law checkoff authoriza-
tions must be voluntary and the Union had offered
to accept checkoff authorizations cancellable upon 30
days' notice. Cullum also referred to union dues as
payments to "an outsider." Manifestly union dues are
more intimately connected with the employment relation-
ship than is the Community Chest.29 Respondent's failure
to provide any data concerning its anticipated costs
resulting from a checkoff gives" further reason to doubt
the bona fides of its position. Finally, Respondent's
rejection of the Union's alternative, reduced demands,,,
without making any counterproposals,'further establishes
a refusal to bargain on the issue. N.L.R.B. v. Arkansas
Rice Growers, supra at 571
The complaint alleges, and the General Counsel argues
in his brief, that the "Protection of Rights," "Warehouse
Security," and "Productivity" provisions are nonmanda-
tory bargaining issues and therefore Respondent violated
Section 8(a)(5) by bargaining to impasse over them .
In my opinion, each30 of these provisions "regulates
the relations between the employer and employees"
(N.L.R.B. v..Wooster Division of Borg-Warner Corp.,
356 U.S. 342, 349) and thus they all were mandatory
subjects for bargaining.
While rejecting the General Counsel' s legal position,
the Examiner nonetheless finds that Respondent's picket-
11 The General Counsel's present contention that Respondent's refusal
to agree to the checkoff was discriminatory and thus constituted an
independent unfair labor practice is discussed below in the section
of this Decision entitled "The Remedy
an The Company's original "Warehouse Security" proposal did not
expressly regulate terms or conditions of employment but appeared
only to place some responsibility on the Union Whether or not that
original proposal would constitute a mandatory subject for the bargaining,
Respondent ' s revised demand unquestionably did purport to regulate
the employer-employee relationship
A W CULLUM & CO , INC
line shrinkage and productivity demands provide weighty
evidence of its bad-faith bargaining Cullum testified
that low productivity and shrinkage were longstanding
problems, which were most aggravated during union
organizing campaigns and contract negotiations, which
had occurred in 1964-65 and again in 1967-68 Yet
it was not until January 30, 1969 , more than a year
after bargaining began , that Respondent sought any reme
dial provision for what it now claims were serious contin-
uing problems Cf N L R B v Tower Hosiery 'Mills
supra at 705
Respondent could not possibly have thought that the
proposals here involved would be acceptable to the
Union Certainly the Union could not have been expected
readily to agree to a provision forbidding the employees
from honoring any picket lines , even in situations in
which Respondent ' s interests were not involved The
revised warehouse -security provision reintroduced lie
detector tests, which Respondent knew were anathema
to the Union and the employees and which , as a "major
concession " to the Union , Respondent had previously
deleted from another portion of its contract proposal
Further , as the General Counsel argues , Respondent's
revised "Warehouse Security" provision was probably
unlawful in providing restrictive and disciplinary provi-
sions applicable only to union members in proposing
a discriminatory provision of that sort , Respondent ran
afoul of Section 8(a)(5) Southwestern Pipe, Inc , 179
NLRB No 52 (TXD), section II, I, and Conclusion
of Law No 4
In sum , Respondent ' s conduct with respect to the
"Protection of Rights," "Warehouse Security," and
` Productivity " provisions reflects its determination to
avoid meaningful , productive bargaining , while appearing
to continue negotiations N L R B v Reed & Prince
Co , 205 F 2d 131, 138 (C A 1), cert denied 346 U S
887, Rhodes -Holland Chevrolet Co , 146 NLRB 1304,
1305, Shovel Supply Co , 162 NLRB 460 , 469 That
this was Respondent ' s intention was finally demonstrated
by the alacrity with which its representatives sought
to place the onus for the eventual " impasse" on the
Union At the bargaining session of March 21 1969,
Weldon reviewed, item by item , the major subjects
in dispute between the parties As to each, Sampels
said the Company ' s attitude remained unchanged Wel
don then said that, in view of the Company?s intransi
gence, there obviously was no reason to continue discus
sions In this connection , Weldon credibly testified
I told Mr Sampels that, in my opinion,
that he had forced us to an impasse[311 , that there
was an impasse and there was no point in going
on
Mr Sampels said, You did say that there was
an impasse "
I got up to leave at that point He said, "Now,
I am going to write this down You did say that
there was an impasse"
31 The transcript is hereby corrected by substituting impasse for
empass wherever the latter appears
25
I said, Yes, I did say there was an impasse
and furthermore I think that impasse is caused
by your refusal to bargain in good faith," and
I told him that there was an impasse , I assumed
that he would be taking unilateral action, but we
were still the bargaining representative and we still
insisted on any information preliminary to that i
Although Cullum testified that at the March 21 meeting
Respondent stated its willingness and desire to continue
negotiations , the Examiner finds that Respondent wasp
anxious to seize upon a union declaration of an impasse
to end negotiations , while Respondent maintained the
image of a righteous and victimized party In short
Respondent was really engaged in `shadow boxing
to a draw' [and ] filibustering from the inception of
negotiations through the administrative moils " Tex Tan
Welhausen Co v NL RB supra 419 F 2d at 1268
The remaining question on this phase of the case
concerns the date on which Respondent ' s refusal to
bargain commenced As previously set forth , the com
plaint alleges a refusal to bargain commencing on October
29, 1968,32 the day after the Regional Director approved
the earlier settlement agreement
On October 23, when the settlement agreement was
reached , the Union requested immediate resumption of
contract negotiations Company representatives , howev-
er, said they needed a delay of 2 weeks and Haddock,
the Union ' s president , agreed to such postponement,
with Respondent ' s representatives committed to getting
in touch with the Union to arrange a meeting Had
Respondent's representatives met that commitment, the
E^ aminer would not have found a refusal to bargain
as early as October 29 However , Respondent ' s subse,
quent delay despite constant prodding by the Union,
leads to the conclusion that the initial request for 2
weeks was but the first step in an extended course
of delaying tactics Accordingly , I date the commence
merit of the refusal to bargain as October 29, as alleged
in the complaint
2 The merit wage increases
By letter dated January 6, 1969, Cullum advised Rose
borough that an evaluation of employees was in progress
for the purpose of granting merit wage increases At
the first negotiating meeting, held on January 8, 1969,
the Union asked for specified data so that it could
examine Respondent's contention that the merit wage
increases followed a long-established pattern The Union
also requested that it be further advised if the Company
decided that the increases were a matter of urgency
On January 12, 1969, without further communication
with the Union, Respondent granted merit wage increases
to 24 unit employees The Union learned of the increases
only when, at the second negotiating session, on January
30, it asked for the information it had previously request-
ed
32 The charge referred to October 23 the date of the settlement
agreement That date is a few day,, before the permissible period
under Section 10(b)
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eventually, the Respondent provided information con-
cerning prior wage increases of the unit employees who
received increases on January 12 1969, as well as some
data concerning merit increases to nonunit employees
The following is a summary tabulation, on a monthly
bards of the number of merit increases in the years
1963 through 1967 inclusive and 1968 as shown in
Respondent s figures
1963-67, inclusive
MON rH LNIT NONLNIT
Jan 1 28
Feb 14 4
Mar 34 6
Apr 19 16
May 7 31
June 0 6
July 2 20
Aug 5 3
Sept 15 6
Oct 1 4
Nov 17 52
Dec 0 4
pattern and it submitted no data other than that summa
rized above
Two facts stand out first, there was no established
pattern of regular quarterly merit increases as Cullum
maintained was the Company's custom Second in the
6 years, 1963 through 1968,34 only two unit employees
received merit increases in January 3I In view of this
the timing of the increases in 1969 takes on great signi
ficance Just 2 days before the first negotiating session
Cullum advised Roseborough that an evaluation was
in progress The increases were made effective 4 or
5 days after the meeting, with no further notice to
the Union And the evaluation came 3 to 4 weeks
earlier than was "customary" according to Cullum See
fn 25, supra
The grant of merit wage increases to a substantial
number of unit employees without affording the Union
an opportunity to bargain about them constituted a refus
al to bargain in violation of Section 8(a) (5) N L R B
v Benne Katz 369 U S 736, Shovel Supply Co supra
162 NLRB at 463-464 While this is not essential to
an 8(a) (5) violation (Bierl Supply Co 179 NLRB No
125), I further find that the increases were intentionally
timed to undermine the Union and to influence the
course of the contract negotiations which were then
getting under way The merit increases thus also form
part of the course of conduct which has hitherto been
found to constitute a violative refusal to bargain
1968
MONTH UNIT NONLNIT
Jan 1 4
Feb 23 0
Mar 0 3
Apr 1 3
May 0 1
June 0 3
July 0 0
Aug 2 1
Sept 0 2
Oct 0 4
Nov 0 7
Dec 0 6
While it may be that the data, particularly those
concerning the unit employees, are not complete, there
is no reason to believe that they are not representative 33
In any event, Respondent had full opportunity to present
evidence in support of its defense that the increases
on January 12, 1969, conformed to a long-established
99 Cullum testified We did not pick up all of the historical information
on all of the bargaining unit people because of the laborious amount
of work involved in this
CONCLUSIONS OF LAW
I The Company is an employer engaged in commerce
and the Union is a labor organization within the meaning
of Section 2(2), (5), (6), and (7) of the Act
2 Truckdrivers, truckdriver helpers, order fillers,
shipping and receiving clerks, forklift operators ware
housemen, checkers, and garage employees, exclusive
of office clerks, plant guards, and all other employees
and supervisors as defined by the Act, constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act
3 At all times on and since October 29, 1968, the
Union has been the certified exclusive collective bargain-
ing representative of the Company's employees in the
unit described in Conclusion 2
4 At all times on and since October 29, 1968, in
contravention of Section 8(a) (5) and (1) of the Act,
Respondent has refused to bargain in good faith with
the Union, such refusal to bargain consisting of the
totality of its conduct, including refusal to meet with
the Union at reasonable times for the purpose of collec-
74 To the extent that 1968 was atypical as Cullum maintained its
nonrepresentative character arose in April when the strike began and
Respondent granted an across the board increase
I L V Johnson 10 cent per hour increase on January 17 1965
J V Isaacs 15 cent per hour increase on January 29 1968
A. W. CULLUM & CO., INC.
tive bargaining ; refusal to bargain in good faith concern-
ing the Union's demands for contract provisions covering
checkoff of union dues and employees' seniority rights;
inflexible insistence upon the Union's totally renouncing
the employees' statutorily protected right to honor lawful
picket lines ; belated and unreasonable demands for union
responsibility for "warehouse security" and employee
productivity; demand for an unlawfully discriminatory
contractual provision concerning "warehouse security";
delay in meeting the Union's requests for relevant data;
and unilaterally granting wage increases to a substantial
number of employees in the bargaining unit in January
1969.
5. By granting wage increases to a substantial number
of employees in the bargaining unit on January 12 and
13, 1969, without affording the Union an opportunity
to bargain thereon , Respondent was guilty of a refusal
to bargain collectively in good faith, thereby committing
an unfair labor practice within the meaning of Section
8(a) (5) and (1) of the Act.
6. The aforesaid unfair labor practices affect com-
merce within the 'meaning of Section 2(6) and (7) of
the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I recommend that an order issue directing
Respondent to cease and desist therefrom and to take
affirmative action designed to effectuate the policies
of the Act, including posting of appropriate notices
and bargaining with the Union at its request . The order
will not , however , require that Respondent rescind or
terminate the January 1969 unilateral wage increases
which have been found to have been granted in contra-
vention of the Act.
In his brief, the General Counsel contends, as an
alternative to his primary position, that Respondent's
refusal to agree to a checkoff of union dues while
making deductions for such matters as the United Fund,
purchase of tools, the credit union, and insurance, is
discriminatory and thus independently violative of Sec-
tion 8(a) (1). He contends that Respondent's conduct
was alleged as violative of Section 8(a) (1), as well
as of Section 8 (a) (5). However , in the complaint,
violation of Section 8(a) (1) was alleged only deriviatively
from the 8 (a) (5) violation. In my opinion, Respondent
was not put on notice. that its refusal to grant checkoff
was alleged to be discriminatory and thus independently
violative of Section 8(a) (1). Accordingly, under the
complaint, I would,not order Respondent to agree to
a checkoff of union dues as a means, of remedying
a violation of Section, 8(a) (1) as,such.
At the hearing, the Union sought to have added
to the formal papers in this case a letter dated May
7, 1969, by Respondent's counsel' to counsel for the
Board and for Respondent. The letter set forth 11 "acts
evidencing the employer's overall bad faith." I reject
the Union's offer. In its brief, the Union urges that
27
I committed error by excluding the letter. The Union
appears to argue that if the letter 1 had been put in
the record, it would warrant an order requiring the
Company to grant the checkoff. As the Union's brief
also appears to acknowledge, the letter of May 7, 1969
(which is retained in the file of this case as a rejected
exhibit), really adds nothing of substance to the checkoff
allegation in the complaint . It does, however , state that
the Union will "request an order specifically remedying
all violations proved." In my opinion, had the facts
warranted it, a mandatory checkoff order could be issued
under the present complaint, without the specific "warn-
ing" or notice provided by the Union's letter. On the
other hand , if the evidence does not warrant such an
order , none would be recommended even if the complaint
had alleged the checkoff matter as an independent unfair
labor practice and had requested a specific affirmative
remedy. Accordingly, rejection of the Union's letter
was nonprejudicial and I thus decline to reexamine
the ruling.
Both the Union and the General Counsel request
that Respondent be ordered to agree to a checkoff
of union dues under the authority of the Porter case.31
In ordering the employer in Porter to "[g]rant to the
Union a contract clause providing for the checkoff of
union dues ," the Board laid great emphasis on the
fact that "Respondent has repeatedly violated Section
8(a)(5)." In the present case , however , no finding can
be made of "repeated" violations of Section 8(a) (5).
As previously observed, the prior complaint alleging
Respondent ' s refusal to bargain ended in an informal
settlement agreement which expressly disavowed any
admission by Respondent or finding of an unlawful
refusal to bargain. In response to a posthearing order
in the present case, both the General Counsel and the
Union conceded that the prior case can have no effect
here even though there has been no determination of
Respondent ' s compliance with the settlement agreement
and the prior complaint has not been dismissed.
Accordingly, I believe it would be inappropriate at
this time to order Respondent to grant a checkoff clause.
However, to avoid any misunderstanding, I specifically
note that checkoff is one of the issues which Respondent
is required to bargain about in good faith. Continued
refusal to grant a checkoff clause , without making some
compensating substantial concession and/or supplying
data supporting its purported objections , mighi well
violate the order here recommended and accordingly
might constitute contempt of court if the order is
enforced by a court. United Steelworkers v. N.L.R.B.
(Roanoke Iron & Bridge Works, Inc.), 390 F.2d 846,
853 (C.A.D.C.), cert. denied 391 U.S. 904; United Steel-
workers of America v. N.L.R.B. (H.K. Porter Co.),
363 F.2d 272, 276.
31' H K Porter Co , 153 NLRB 1370 , enfd sub nom United Steelwork-
ers of America v NLRB , 363 F 2d 272 (C A D C ), cert denied
385 U S 851, clarified 389 F 2d 295 (C A.D C ), supplemental decision
172 NLRB No 72, enfd, 414 F 2d 1123 (C A D C)
28 DECISIONS OF NATIONAI LABOR RELATIONS BOARD
RECOMMENDED ORDER
Respondent A W Cullum & Company Inc its
officers agents successors and assigns shall
I Cease 'ind desist from
(a) Refusing to bargain collectively in good faith con
cerning wages hours and other terms and conditions
of employment with General Drivers Warehousemen
and Helpers Local 745, affiliated with International
Brotherhood of Teamsters Chauffeurs Warehousemen
and Helpers of America as exclusive representative
of all employees in the following appropriate unit
Truckdrivers truckdriver helpers order fillers
shipping and receiving clerks forklift operators
warehousemen checkers and garage employees
exclusive of office clerks, plant guards and all other
employees and supervisors as defined in the Act
(b) Granting any wage increases to employees within
the unit described above without notifying the above
named Union and giving it an opportunity to bargain
collectively about any proposed wage increases
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had the chance to
give evidence the National Labor Relations Board found
that we, A W Cullum & Company violated the National
Labor Relations Act and ordered us to post this notice
telling our employees what we have been ordered to
do and not to do in the future
The Board has ordered us to tell you that WE WILL
On request bargain in good faith, in a sincere
effort to reach a collective-bargaining agreement
with General Drivers, Warehousemen and Helpers
Local 745 Affiliated with International Brotherhood
of Teamsters Chauffeurs, Warehousemen and
Helpers of America, concerning the wages, rates
of pay hours and terms and conditions of employ
ment of our-
2 Take the following affirmative action which will
effectuate the policies of the Act
(a) Upon request bargain collectively in good faith
with the above named Union as the exclusive represents
tive of the employees in the unit heretofore described
(b) Post at its Dallas Texas premises copies of the
attached notice marked `Appendix "3' Copies of the
notice on forms furnished by the Regional Director
for Region 16 shall after being signed by an authorized
representative of the Company be posted by it immedi-
ately upon receipt thereof and maintained by it for
a period of 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted Reasonable steps shall be
taken by the Company to assure that said notices are
not altered defaced, or covered by any other material
(c) Notify the Regional Director for Region 16 in
writing within 20 days from the receipt of this Recom-
mended Order what steps it has taken to comply here
with 11
' In the event no exceptions ire filed as provided by Section 102 46
of the Rules 'Ind Regulations of the National Labor Relations Board
the findings conclusions recommendations and Recommended Order
herein sh ill is provided in Section 102 48 of the Rules and Regulations
be adopted by the Board 'Ind become its findings conclusions and
order and ill objections thereto shall be deemed waived for all purposes
In the event that the Board s Order is enforced by a judgment of
a United States Court of Appeals the words in the notice reading
Posted by Order of the N itional Labor Relations Board shall be
changed to re id Posted Pursuant to 'i Judgment of the United States
Court of Appe'ils Fnforcing 'in Order of the National Labor Relations
Boaid
'" In the event that this Recommended Order be adopted by the
Board this provision shill be modified to reid Notify said Regional
Director in writing within 10 days from the date of this Order what
steps the Respondent h is viken to comply herewith
Truckdrivers, truckdriver helpers, order fillers,
shipping and receiving clerks, forklift operators,
warehousemen, checkers and garage employees
exclusive of office clerks, plant guards and all
other employees and all other supervisors as
defined in the Act
The Board has ordered us to tell you that WE WILL
NOT
Refuse to bargain in good faith, in a sincere attempt
to reach a collective-bargaining agreement, with
the Union concerning the wages rates of pay,
hours and terms and conditions of the employees
specified above,
Make any changes in the wage rates of any of
the employees specified above without notifying
the Union of what we want to do and giving the
Union an opportunity to bargain about it with us
A W CULLUM &
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced or covered by any other material
A W CULLUM & CO , INC 29
Any questions concerning this notice or compliance Office, 8A24 Federal Office Building, 819 Taylor Street,
with its provisions, may be directed to the Board's Fort Worth , Texas 76102, 817-334-2921