American Express Reservations, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1974

209 N.L.R.B. 1105 (N.L.R.B. 1974)

AMERICAN EXPRESS RESERVATIONS, INC.
American Express Reservations , Inc. and Highway and
Local Motor Freight Employees Local Union No.
667, affiliated with the International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and
Helpers of America . Case 26-CA-4768
April 5, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On December 21, 1973, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
RAMEY DONOVAN, Administrative Law Judge: The
charge in this case was filed on June 12, 1973, by Highway
and Local Motor Freight Employees Local Union No. 667,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein the Union. The General Counsel of the Board
through the Regional Director of Region 26 of the Board
issued a complaint on August 14, 1973, against American
Express Reservations, Inc., herein Respondent or the
Company. The complamt alleges that since April 7. 1972,
the Union has been the exclusive bargaining agent of a
described unit of Respondent's employees. It is further
alleged that, since on or about January 12, 1973, Respon-
dent has refused to bargain with the Union in that
Respondent negotiated in bad faith and with no intention
of entering into a final or binding contract; that commenc-
I Hall, another assistant agent of the Union, participated with Tucker in
substantially all the negotiations but he testified only briefly and only with
respect to a May 25, 1973. luncheon that he and Tucker had with
Weintraub Whyte, vice president of the Company, and Hargrove.
personnel manager. were with Weintraub at many of the negotiating
209 NLRB No. 172
1105
ing on or about April 17, 1973, Respondent by two-named
employees, alleged to be agents of Respondent, solicited
employees to sign a petition to decertify the Union, and
that Respondent aided and assisted the petition solicitors
by allowing solicitation thereof on working time in working
areas while denying similar privileges to employees
supporting the Union; that on or about May 25, 1973, the
Respondent withdrew recognition of the Union as the
representative of the employees in the appropriate unit.
The aforesaid conduct is alleged to be in violation of
Section 8(a)(1) and (5) of the Act. In its answer,
Respondent denies the commission of the alleged unfair
labor practices.
The trial of the case was held in Memphis, Tennessee, on
October 2-5, 1973, inclusive, with all parties participating
through respective counsel.
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent, at all times material, is a corporation doing
business in Memphis, Tennessee, where it is engaged in
providing reservation services.
In a representative 12-month period, Respondent, in the
course and conduct of its business, provided services
valued in excess of $50,000 outside the State of Tennessee.
Respondent is an employer engaged in commerce within
the meaning of the Act and the Union is a labor
organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
On April 7, 1972, the National Labor Relations Board,
herein the Board , by its Regional Director , Region 26,
Memphis, Tennessee, conducted a stipulated consent
election in an appropriate unit of Respondent 's employees.
The Union won the election and was certified on April 17,
1972, as the exclusive bargaining agent in the following
unit:
Included: All reservation sales agents , support agents,
and file agents employed by the Employer at its
location at 4023 Knight Arnold Road, Memphis,
Tennessee. Excluded: All other employees, including
office clerical employees, administrative employees,
watchmen, guards and supervisors as defined in the
Act, including lead agents.
The contacts, arrangements, and contract negotiations
that ensued thereafter between the representatives of the
parties, the Company and the Union, were conducted
principally by Weintraub, attorney for the Company, and
by Tucker, assistant business agent of the Union. Concern-
ing the aforesaid matters, Weintraub and Tucker were also
the sole witnesses at the hearing.'
Both Weintraub and Tucker testified from their recollec-
tions of events, aided by their respective notes made during
sessions, principally, it would appear, in an informational resource capacity.
Neither testified regarding the negotiations. Parham , Augustine, and
Moffitt, union officials , who participated in about one session each , did not
testify
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the various meetings. I have carefully considered all the
evidence and where there are differences or conflicts I have
resolved them in accordance with what I believe is the
more accurate and credible version and conclusion. While
it is neither feasible nor necessary to describe each
occurence or bargaining session in every detail, what
follows is my description of material events in accordance
with my analysis of the evidence, and my observations and
conclusions thereon.
Preliminarily, I consider it relevant in this particular case
to mention that Weintraub is an experienced labor law
attorney in the Memphis area and he had represented a
variety of employer clients over the years of dealing with
the instant Union, Local 667 of the Teamsters. Tucker and
Hall are experienced union representatives. Tucker and
Weintraub, representing, respectively, the Umon and
employers, have negotiated contracts with each other in the
past. In the 1972-73 period with which this case is
concerned, the professional relationship between Wein-
traub, on the one hand, with Tucker, Hall, and other union
officials, on the other, has been cordial and friendly and
generally bereft of the tension and animosity that some-
times exists between adversaries in this field. The foregoing
factors existed cheek by jowl with the fact that, in my
opinion, in the instant contract negotiations, both Wein-
traub and Tucker were seeking to maximize the interests of
the respective parties that they were representing.
After the April 17, 1972. certification of the Umon, the
Union first contacted Weintraub on Wednesday, April 26,
1972. Tucker telephoned Weintraub on the 26th and said
that he was going to hold a union meeting for the
Respondent's unit employees and he asked Weintraub
about posting a notice to notify the employees of the
meeting. Weintraub agreed and since the meeting was only
a few days hence Weintraub had his partner pick up the
notice at the union office and take it to the Company
where it was posted.
The next union contact with Weintraub was a telephone
call from Hall on Thursday, June 15, 1972. Hall asked
Weintraub "to set up a meeting" between the parties for
contract negotiations. Weintraub said that he would check
with the Company and would let Hall know early next
week. Weintraub called Hall on Monday, June 19, and
suggested Monday or Tuesday, June 26 or 27, as meeting
dates, explaining and describing his prior engagements
during the week of June 19. Hall mentioned some problem
of his own that made June 26 or 27 undesirable and
proposed Friday, June 23. Weintraub said that he would
try to cancel a union negotiation session he had scheduled
in Wihmington on that day and would call back.
Thereafter Weintraub called Hall and they agreed to meet
on Friday, June 23.
On June 23, 1972, Tucker, Hall, and Weintraub met in
the latter's office. The meeting ran from approximately
3:30 p.m. to 5:15 p.m. and was devoted almost exclusively
to a three-party conversation on baseball, tennis, Wein-
traub's brother, similar miscellany, and as Tucker, in his
testimony, summed it up, we "just had quite a bit of
conversation." Nothing was said about contract negotia-
tions until about 10 or 15 minutes before the end of the
session. Weintraub at that point, apparently around 5 p.m.,
asked Tucker, what about the contract. Tucker then took a
printed copy of the National Master Freight Agreement
from his briefcase and handed it to Weintraub, adding,
"you know your operations better than we do, why don't
you make it [a proposed contract] up." Weintraub said
something to the effect about himself not being the one to
take the lead in drawing up the initial contract proposal
but said that he would talk to the Company about the
matter. Thus ended the first meeting between the parties.
The National Agreement that Tucker had handed
Weintraub on June 23 is the national contract between the
Teamsters International Union and the Southern Confer-
ence of Teamsters, an area division of the International, on
the one hand, and a national trucking employer organiza-
tion and allied trucking employer associations, on the other
hand. The entire document consists of 163 printed pages,
including pages 107 to 157 which consists of the Teamsters
Southern Conference Clerical Employees Supplemental
Agreement. As the name indicates, the latter contract
covers clerical employees of trucking companies, such as
rate clerks, Interline clerks, OS & D clerks, Manifest clerks,
Abstract clerks, and so forth. Such categories as stenogra-
phers and typists who are covered in the above clerical
contract are excluded from the certified unit at Respon-
dent's operations. Both Respondent and the trucking
companies have such people as file clerks but how much
work and working conditions in common a file clerk at
American Express Reservations has with a file clerk of a
trucking company is not immediately apparent and at no
time was explicated in the instant case.
The aforementioned clerical agreement expressly pro-
vides that it is supplemental to and becomes a part of the
National Master Freight Agreement and shall prevail over
the National Master Freight Agreement only to the extent
specifically provided.
The parties next met on July 14, 1972. Tucker, when
asked, "how this meeting was arranged," replied, "Again
by mutual agreement." 2 A substantial part of this meeting
was consumed by discussion of two employees whose
terminations were raised by Tucker with Weintraub at this
meeting. One of the employees was a rank-and-file
employee and Tucker discussed the merits of her case.
Weintraub said he would check into the facts with the
Company. The other employee was a supervisor; there
were rumors of a walkout over her discharge; and Tucker
told Weintraub that he, Tucker, had informed the girls that
they had nothing to do with supervision. Admittedly, these
two personnel matters had nothing to do with a proposed
contract or contract negotiations. What may be termed the
contract negotiation portion of the meeting consisted of
the following: Weintraub said that there would be a basic
problem because the Company did not believe, as a matter
of principle, in company checkoff of union dues; he said
2 The answer that the meeting was "again" arranged by mutual available "we [Tucker and Hall ] already had previous commitments on." In
agreement is self explanatory It indicated equal responsibility for, and short, apparently both parties were busy people and without allocating any
equal partlupation in, arranging the date and time of meeting. As Tucker discernible priority to the instant contract negotiations they sandwiched in
asserted in connection with a different meeting, Weintraub had prior their contract negotiations at mutually convenient times "by mutual
commitments on certain dates, and on dates that Weintraub proposed as agreement"
AMERICAN EXPRESS RESERVATIONS, INC.
that there would be no problem about economics and he
felt that economic matters could be worked out successful-
ly. The parties from the beginning were in mutual
agreement that they would first negotiate the noneconomic
parts of the contract and would later discuss economics.
The Union said that checkoff was important to it and that
it needed checkoff. The parties discussed checkoff back
and forth. Tucker pointed out that many of the girls had
already signed union checkoff authorizations. Weintraub
said that many girls had complained to the Company
about having gotten into the matter and now regretted
being stuck with it and that one girl had spoken to him
personally about the subject. Weintraub also said that the
Company did not want to bear the burden of making up
the initial contract proposal and that the Union would
have to make a contract proposal to the Company.
Weintraub either expressly said or indicated that the
National Master Freight Agreement and its clerical
supplement did not constitute a germane contract
proposal.3 Tucker, near the end of the meeting, said that he
would prepare a contract proposal and would submit it.
The parties next met on July 24 or 25. According to
Tucker, the date was arrived at by mutual agreement. At
the beginning of the meeting the parties again discussed the
case of the employee who had been one of the topics of
discussion at the prior meeting. They then went into the
matter of checkoff. The Union said that checkoff was
necessary. Weintraub in substance urged the Union to
forego checkoff "'this year," i.e. in the initial contract, and
indicated that "the next time," at the next contract, he did
not think that there would be a problem about a checkoff.
The Union's response to this approach was negative.
Weintraub then said, suppose I recommend a checkoff
clause to the Company that would be operative for
checkoff authorizations signed by employees after the
contract is executed, indicating to the Union that such a
provision would get the Company off the hook as to the
employees' assertions that they had signed checkoff
authorizations in the past without knowing what they were
getting into. The Union rejected this suggestion. Weintraub
then asked, what if he recommended to the Company an
open end checkoff, i.e. a checkoff subject to a provision
that the employee could revoke her checkoff authorization
at any time. Tucker said that he would not go for that.
Weintraub suggested that Tucker check into the two
foregoing ideas on checkoff and consider them further?
Weintraub then asked Tucker where was the Union's
proposed contract that Tucker, at the July 14 meeting, said
would be forthcoming. Tucker replied that the National
3 As we have seen, on June 23, when Tucker handed Weintraub the
National Freight Agreement, he told Weintraub that Weintraub should
draw up a proposed contract Since employees join a union because they
wish to attain certain wages, hours , and conditions, and a union represents
them to attain certain desired conditions, it is normal and logical that the
aspirations and goals of the employees and the union be set forth in an
initial contract proposal by the Union 1 he National Master Freight
Agreement and Clerical Supplement would require extensive adaptation
before it could serve the instant Company's operation and Tucker had not
delineated any particular provisions that he considered to be appropriate If
Weintraub had signed the National Freight contract as presented it would
have been unworkable for all parties. For instance, on grievances, the
clerical supplement, basically similar to the National Freight basic contract,
provided that if a grievance was not settled by the local union and the
1107
Freight Agreement and Clerical Supplement could be used.
Weintraub said that they were inappropriate and filled
with clauses inappropriate to his client's business or to any
business but a trucking company. Weintraub suggested
that Tucker submit something like the Coming Glass
contract that Weintraub had negotiated with the Team-
sters. Tucker said he could get the Telephone contract but
neither the Union nor Weintraub would like it because it
was too complicated. Tucker finally said that he would
draw up a contract proposal. This was the end of the
meeting.
On August 7, 1972, the Union mailed to Weintraub a 22-
page contract proposal (G.C. Exh. 12) which, aside from
the previously submitted National Freight Agreement, was
the first contract proposal submitted. The union proposal
contained the following articles: recognition; union shop
and dues checkoff; seniority; transfer of company title or
interest; time off for union activities; stewards; mainte-
nance of standards; bulletin boards; discharge or suspen-
sion; grievance and arbitration (this included third party
binding arbitration of unresolved grievances and also a no-
strike and no lockout provision); savings clause; compen-
sation claims; call-out and reporting pay; holidays (12);
vacations; posting: work week and wage rates (no wage
proposals were made); bonds; examinations and identifica-
tions fees; health and welfare ("Teamsters Health and
Welfare Plan"); pension ("Teamsters Pension Plan"); pay
period; cost of living; separability and savings clause; sick
leave; education assistance plan; credit union; absences
with pay: maternity leave; duration (no proposed duration
was set forth).
The next meeting was on August 25, 1973.5 Apparently
this meeting had been arranged by mutual agreement.
At the August 25 meeting, the parties in effect skimmed
through the union contract proposal, clarifying and
discussing it in somewhat cursory fashion. They did discuss
seniority at some length. Weintraub undertook to explain
what he considered to be the complex nature of the
Company's operation and gave some description of the
existing recognition of seniority in the bidding system for
shifts and the multiple preference system.6 Tucker, in
substance, said that we can handle it and he said he had a
"deal" (a contract seniority clause?) that worked the same
way and he would send Weintraub a copy. They then
talked about another aspect of bidding. The discharge and
suspension clause of the Union's proposal was discussed.
They discussed existing lunch periods. This was the end of
the meeting and at this point they discussed a date for the
next meeting. Tucker said, we have to move faster, the girls
employer it should go to the State or Multiple State Committee, with final
recourse to the Southern Conference Area Grievance Committee All these
aforementioned committees were composed of representatives of employers
and unions in the trucking industry.
4 Subsequently, and apparently a day or so after the meeting, Weintraub
spoke on the telephone to Tucker or Augustine, president of the local union
The Union affirmed the rejection of Weintraub's two ideas or suggestions
on checkoff
5 Tucker in describing the various meetings does not mention any
meeting in August
6 The Company operates on a 24-hour basis Employees have a wide
variety of starting and quitting times, e g some start work at 8 a in., some at
9, 10, 11, 12, and so forth Apparently they bid not only on a shift but bid in
advance on preferences for the hours and for days off and so forth.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are pressuring us. Weintraub then said, we did not hear
from you for 2 1/2 months after the certification and then
you did not submit a proposal and Weintraub went on to
recount the delays and so forth as he viewed the situation.
Weintraub said that most recently you called me on
August 24 and I agreed to meet today. Both parties then, at
the end of the August 25 meeting, mutually agreed to meet
on September 6, 1972.
At the September 6 meeting, Tucker suggested putting
some items aside and trying to reach agreement on others
and thus show some progress. Weintraub agreed. Wein-
traub went on to explain that the Company's business
required flexibility in operations because it involved a new
computerized system of operation. He said the Company
had lost money in experimenting with the operations and
all or all but one competitor had similar experiences and
had gone out of business. Weintraub said that the
Company's reservation system dealt with a variety of
customers, different hotel or motel chains and so forth, all
of whom had different policies and therefore the Compa-
ny's reservation system was different than, for instance, the
Holiday Inn reservation system which involved only the
Holiday Inn operations and not other operations. The
parties discussed many articles in the Union's contract
proposal. Some they discussed at considerable length and
others they passed over after relatively brief discussion.
They explored seniority and bidding at some length and
made progress. Weintraub said that he would prepare a
counterproposal that he would submit to the Union. They
then agreed to adjourn.
On September 13, Tucker mailed to Weintraub a
multiple shift bid sheet used for the drivers, lift operators,
and so forth at American Express Company. This was
pursuant to his previous conversation with Weintraub
about having something that could be used re the bidding
system. This document, for some reason, was never
actually discussed by the parties after receipt and it is not
explained in the record. As far as I can discern, the
American Express referred to by Tucker in his September
13 letter enclosing the bid sheet is something different from
the instant company, American Express Reservations,
which apparently had no personnel in the nature of drivers
and lift operators and no corporate connection is shown
nor was an attempt made at explication.
Weintraub, on September 22, mailed to Tucker a three-
page detailed description by Whyte of the Company's
existing bidding which stressed the fluctuations and
flexibility therein that the Company considered essential.
The document dealt with the bidding in general, seniority,
and filling job openings; the support operation and
quarterly bidding and bidding between quarters; the
7 Presumably Weintraub 's argument meant that if, for instance , a union-
security clause was invalidated , renegotiation could entitle a union to argue
therein that wages or holidays should be increased as a compensatory
measure for the invalidated union security and so forth
9 It is appropriate to point out that in describing this meeting , as well as
prior and subsequent meetings when the parties were discussing contract
provisions , it is not feasible to describe every topic and what was said by
each side I have and shall continue to describe some matters in relative
detail as illustrative of the bargaining As a general and overall description,
I will state that both parties gave reasons- for their positions More
importantly, since it is the Company that is the Respondent , the evidence
shows, in my opinion , that Weintraub consistently gave reasons for his
telephone sales operation and basic shifts and supplemen-
tal floating shifts, as well as swapping shifts.
At the next meeting on September 22, Weintraub
submitted a typed counterproposal consisting of the
following articles: recognition; health, safety and sanita-
tion ; bulletin board; nondiscrimination ; seniority (3 1/2
pages); leave of absence ; saving clause ; settlement of
disputes (4 step grievance procedure, with final step being
the company vice president); management rights; stew-
ards; discipline and discharge; no strike-no lockout;
overtime ; entire agreement.
The parties discussed a number of the articles in detail
and in my opinion their respective positions, contentions,
questions , and agreements were consistent with good-faith
bargaining. On some of the matters they narrowed their
differences and on others the differences were at least
explicated. Agreement was reached on bulletin boards and
nondiscrimination. Some items that were in the Union's
proposal of August 7, such as checkoff and third party
arbitration, were not in the Company's September 22
counterproposal and were not discussed on September 22.
The Union's proposed savings clause, which dealt with the
situation where any part of the contract was ruled invalid
by a court, provided that the Union could thereupon
renegotiate the clause in question or take economic action.
The company proposal on a savings clause did not provide
for renegotiation or economic action. Weintraub argued
that renegotiation during the term of the contract was too
open ended and renegotiation on one clause could spill
over into compensatory changes in other clauses 7 and that
any renegotiation or other action should be deferred until
negotiations for the next contract.
The next meeting was held at the union hall on October
17, 1972. Prior meetings had been held at Weintraub's
office. The situs of the meetings was not a matter of
dispute. On October 17 the parties agreed on a 3-month
probationary period for new employees. The union
contract proposal of August 7 contained no probationary
clause. The company proposal of September 22 contained
a 4-month probationary period. On September 22 Tucker
was not aware that the existing probationary period was 3
months but on October 17 they agreed on 3 months.
Factors to be used on promotions were discussed at some
length . 8 Agreement was reached on shift assignments.
Agreement was reached on the union contention that
seniority should date from, or be cut off, as April 7, 1972,
the date of the Board election. Agreement was attained on
the seniority article . The parties discussed the article on
stewards. Tucker asked why arbitration was not provided
for in the company proposal on grievances .9 Weintraub
said in substance that it was a new company in a relatively
opposition to union proposals and also gave reasons for his own
counterproposals Obviously, the foregoing observation is not dispositive of
the issue of whether there was only surface bargaining but it is to be borne
in mind in reading my description of the meetings where I do not set forth
complete details of the bargaining on every topic
9 The September 22 company contract proposal contained no arbitration
provision Near the end of the September 22 meeting, Tucker asked
Weintraub if he had not forgotten something in the grievance article
Weintraub said that the ommission of arbitration was deliberate . This ended
the conversation and it was at the next meeting, October 17, that arbitration
was first actually discussed.
AMERICAN EXPRESS RESERVATIONS, INC.
new business and the Company needed to continue
experimenting and, in the process thereof, making mis-
takes; that policies were changing constantly and varied
from customer to customer; that the Company needed this
flexibility and would be too vulnerable in arbitration where
an arbitrator might view changes in policy as arbitrary or
inconsistent with some prior policy and therefore would
decide that this or that action was unfair and so forth.
Weintraub urged the Union to accept the four-step
grievance procedure with no third party arbitration. The
parties agreed to hold the topic in abeyance and pass on to
other matters.
Next was the meeting of October 28. The Union
submitted proposals on the management rights clause,
discharge and suspension, grievance-arbitration clause,
and suspension. These matters were discussed back and
forth. The grievance-arbitration clause was basically the
same as the one set forth in the Union's original August 7
contract proposal, i.e., if a grievance was not resolved at
lower levels, it would be referred to an arbitration
committee composed of a company and union representa-
tive, plus a third impartial member to be mutually agreed
upon by the two aforementioned members. In the event of
failure to agree on the third member, the Federal
Mediation Service would select the third member and the
decision of the arbitration committee would be final and
binding. Weintraub argued that the complexity of the
Company's operation and the frequent and numerous
changes in policies would result in numerous arbitrations
and the Company needed to stabilize its operations before
having to contend with arbitration. The parties discussed
overtime and voluntary or involuntary aspects thereof.
Weintraub indicated that the language of the Union
proposal on the overtime aspect was acceptable but he
wished to submit something a little more precise and would
do so in a subsequent meeting.
The parties then met on November 20. Respondent
presented three written counterproposals on stewards,
discharge, and suspension, and on overtime. They reached
agreement on overtime and made substantial progress on
stewards and discharge and suspensions, as well as on the
management's rights clause. The advances made in
narrowing differences at this and other meetings were due
to mutual give and take by both parties.
The next meeting was on November 21.10 The Company
submitted written proposals on stewards; discipline and
discharge; no-strike-no lockout; and transfer of opera-
tions. The Union submitted a written proposal on no-
strike, no lockout. The parties reached agreement on
stewards and on discipline and supervision. On no-strike,
the Union's original contract proposal of August 7 simply
included a no-strike sentence of three and a half lines in
the grievance-aibitration article. The sentence provided
that there would be no strike or lockout and that all
matters under the contract would finally be disposed of by
arbitration. On November 21, in line with prior discussion,
the Union's no-strike clause said nothing about arbitration
in the no-strike article but arbitration was now set forth
only in the Union's grievance article and it included an
10 This is the only time that the parties met on successive days and, as we
shall see, November 1972 was the only month, before or since, in which the
1109
exculpatory provision, i.e., no union liability for a strike,
slowdown, stoppage, not supported by the Union, provided
the Union made a bona fide effort to end the strike,
slowdown, or stoppage. The parties were apart on this
exculpatory portion of a no-strike article. They went to the
Union's proposed clauses on workmen's compensation;
performance bonds for employees, with the employer
paying for and securing required bonds; and maintenance
of standards. Weintraub contended that such clauses were
unnecessary and characterized them as trucking industry
clauses. He said that they were not needed in the instant
contract, pointing out that the employees handled no
merchandise and so forth. He further said that while
maintenance of standards had meaning in the trucking
industry, it was too general for the Company, and the
Company did not know what it was "buying" under such a
clause. Near the end of the meeting Weintraub said that, in
a few days, he wanted to talk further with the Union
regarding the demand for checkoff and arbitration.
On November 28 Weintraub spoke to Tucker on the
telephone. He told Tucker that the news was not good
regarding agreement on checkoff. Tucker said, "Well, if
you don't agree to the check off, you know what Augie
[Augustine, president of the local union and Tucker's
superior] would tell me? . . . He'll tell me not to negotiate
[not to reach agreement on ] any other items until you agree
to checkoff."
The parties met on November 30. Pursuant to previous
discussions they were in substantial agreement on the
transfer of operations article. On union proposals regard-
ing physical examinations; workmen's compensation;
bonds; and maintenance of standards, Weintraub said that
they were trucking industry clauses and urged that they be
dropped. The Union did not respond. The parties then
went to lunch together. At lunch, Weintraub strongly
urged Tucker and Hall to forego checkoff and arbitration
in the first contract and to build from there. He appealed
to them as realists, as "businessmen ," and as personal
friends to drop the two aforementioned demands. Wein-
traub said that aside from checkoff and arbitration the
opposing negotiators had no real problems. The union
representatives indicated that if Weintraub agreed to
checkoff they would probably agree on arbitration, i.e., the
Union would probably agree to drop its demand for third
party arbitration on unresolved grievances and would
accept the Company's grievance proposal which did not
provide for arbitration. The matter was discussed at length.
The Union said that it had to have the checkoff. It was
agreed that at some time after the meeting Weintraub
could talk directly with Augustine on the matter of
checkoff.
The parties did not meet in December, apparently by
mutual agreement. However, on December 6 or 7,
Weintraub spoke with Augustine on the telephone.
Essentially, Weintraub made the same appeal or sales talk
on checkoff and arbitration to Augustine as he had to
Tucker and Hall. Augustine affirmed the union proposal of
probably accepting the Company's no-arbitration griev-
ance clause if the Company agreed to checkoff. Weintraub
parties met as many as four times
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
urged Augustine to accept the Company's no-arbitration
grievance and to forego checkoff. Augustine said that the
Union had to have checkoff and that "as long as you refuse
to agree to check off, we are not going to negotiate
anything else."
The parties next met on January 3, 1973. Augustine was
present with Tucker and Hall. Weintraub asked that the
Union drop its proposals on physical examinations, bonds,
and maintenance of standards as not relevant to the
Company's operation. On the savings clause, Weintraub
said that the union proposal that invalid sections of the
contract could be renegotiated was too broad. No
agreement was reached on the foregoing matters although
the parties discussed them as well as workmen's compensa-
tion at some length. Weintraub asked about checkoff
authorization and the Union gave him one of its blank
checkoff authorization cards. The Union said that the
union shop was also one of its demands and has not been
dropped.ti Weintraub said that except for checkoff and
arbitration, the parties were practically through with the
the noneconomic items. Tucker said we are quite a ways
from agreement. Tucker said he wanted to hear Wein-
traub's argument against checkoff. Weintraub said, you
have heard it a number of times and he repeated that the
Company did not want to be in the middle between the
employees and the Union on the matter of dues. At one
point on January 3, according to Tucker, Weintraub spoke
with Tucker aside and asked what would Tucker's position
be if there was language inserted in the contract giving an
employee the right to withdraw from checkoff at any time.
Tucker said that he would not agree to such a provision
because the checkoff authorization spelled out how an
employee could withdraw (the authorization provided that
it was irrevocable for the term of the contract or for 1 year
whichever is less and was automatically renewed for
successive yearly or contract periods unless written notice
was given at least 60 or no more than 75 days before any
periodic renewal date). Tucker said that if an employee or
member came down to the union hall and asked to get out
of his checkoff authorization, the Union would take him
off checkoff.12 Tucker asked'to hear Weintraub's argu-
ments against an arbitration clause. Weintraub again went
into the complexity of the Company's operation and said it
had spent thousands of dollars on surveys and still found
its operations unpredictable. He said that the Company
could only operate if it could freely experiment, make
mistakes and learn; that at the end of this contract the
Company would either have stablized or would go out of
business; and if it stablized, the Company would have a
different perspective on arbitration at the succeeding
contract negotiations. Weintraub urged that the Union
drop its demand for arbitration. The Union did not
respond. They discussed the no-strike clause on which their
disagreement centered on the Union's provision to excul-
pate the Union if it, in effect, was not responsible for a
strike or walkout. It was Weintraub's position that the
exculpatory clause should be omitted and that a court
11 in its August 7, 1972, contract proposal, the Union's article II was
"Union Shop and Dues" and checkoff was part of this article There had
been little or no discussion of "union shop" in the various negotiating
meetings.
could decide on the Union's responsibility or nonresponsi-
bility for a strike or walkout. He cited an experience where
such a clause caused the employer a great deal of trouble in
the situation where there was disagreement about whether
the Union had made a bona fide effort to stop a strike. No
agreement was reached.
The next meeting was January 9. The Union raised the
matter of checkoff. Tucker said that he would accept
substitute language on checkoff. Weintraub said he had
suggested that possibility a long time ago and the Umon
had rejected it. He then repeated the alternatives he had
mentioned on July 25, of checkoff for employees who
signed checkoff authorization after the contract was
executed and the right of employees to revoke their
checkoff authorizations at any time. Tucker asked Wein-
traub, "are you proposing those?" and Weintraub said,
"no, you turned me down flat." Tucker said, we are still
holding for checkoff and we are not withdrawing union
shop. At some point Tucker asked, are we at an impasse.
Weintraub said, no. Weintraub then listed various items in
dispute such as physical examination , checkoff, union
shop, and savings clause. They discussed workmen's
compensation. Weintraub urged the Union to agree "on
some of the other stuff" and said, who knows what will
happen. He said, you give some and we will give some and
dust indicate that you are giving some of these items and we
will be ready to move on our part. They discussed the
union proposal on pay periods. They discussed whether
they were in agreement on the steps of the grievance
procedure prior to arbitration. Tucker's testimony indi-
cates that when they discussed arbitration, Weintraub had
said that arbitration may be in the next contract but he did
not want it in this contract. Tucker said that one person
from the Union and one person from the Company could
agree on a third person to settle gnevances.13 Weintraub
did not agree.
The January 16 meeting was held at the Federal
Mediation office. The Union started with its contract
proposal of August 7, 1972, starting with article II, union
shop and dues checkoff. They discussed the article which
was fairly long since it embraced union shop and various
ancillary features such as maintenance of membership and
agency shop. The parties were not in agreement on various
aspects. On the checkoff portion of the article, Weintraub
said he could not agree to it. Tucker asked for Weintraub's
reasons. Weintraub said that he had stated them many
times . He said that the Company believes that dues is a
matter between the Union and the employees. On seniority
and probation the parties affirmed that they were in
agreement. Weintraub said that he would not agree to the
maintenance of standards clause because it was too open
ended and he pointed out its lack of specificity as he
viewed it. Various other articles were discussed back and
forth. On arbitration, the Union proposed the Federal
Mediation service as the source of arbitration. Weintraub
said that he had no hangups on the Mediation but did not
mean thereby that he was agreeing to arbitration. On the
12 There is no indication that such a proposition would be placed in the
contract or in the checkoff authorization card
13 Apparently this third party would not be called an arbitrator
AMERICAN EXPRESS RESERVATIONS, INC.
savings clause they were apart on the Union's demand for
renegotiation in the event an article of the contract was
invalidated by a court. On physical examinations Wein-
traub argued in effect that it was a trucking industry article
and that the instant Company did not require nor did it
need physical examinations of the employees. They also
discussed pay periods.
The next meeting was January 23, 1973, at Federal
Mediation. The mediator asked for a summary of out-
standing issues. According to Weintraub, Tucker then
enumerated checkoff; maintenance of standards; griev-
ance-arbitration; workmen's compensation; bonds; physi-
cal examination; pay period; savings clause; no-strike:
duration.14 On arbitration the Union submitted a proposal
that if the Company and the union representatives could
not agree on a third member of the board of arbitration,
the neutral third party would be selected from a Federal
Mediation list and the decision of the arbitration board on
grievances would be final. Weintraub rejected this, saying
that it was not the language in an arbitration clause that
was the problem but it was the policy of third party
arbitration that the Company did not want. They discussed
a few of the other items. Weintraub said that the Company
would change position and would agree on some items if it
knew that the Union would give on some items. The
mediator then placed the parties in separate rooms.
According to Weintraub, the mediator thereafter reported
to him and the company representatives that the Union
would not agree on any of the listed items because this
would leave only checkoff and arbitration as outstanding
issues and on these issues alone the Union feared that it
would not have the popular support of the employees. The
meeting ended without discernible accomplishment.
The next meeting, which was on February 15, was held
at Federal Mediation. On pay periods, Weintraub said that
the cost and mechanics of the union proposal were heavy
but he was not saying, no, and would discuss it further with
the company personnel manager when the latter returned
from New York. Weintraub asked about the maintenance
of standards article. Tucker's position on physical exami-
nations was that he still wanted the article. On the savings
clause, Tucker said that he still wanted the provision for
renegotiation. Asked about union shop, Tucker said that it
was negotiable but went hand in glove with checkoff. On
checkoff, Tucker said his position was the same. Wein-
traub said that he wanted to break the logjam. He offered
counterproposals on workmen's compensation and bonds
in contrast to his prior position that these items were
trucking industry clause and inappropriate. Tucker said
that he would, in a short time, give Weintraub an answer
on the aforesaid counterproposals. Tucker asked if there
was any change in Weintraub's position on checkoff.
Weintraub said, no. After caucusing, the Union, through
the mediator, said that it would accept the company
proposals on workmen's compensation and bonds if the
Company agreed to checkoff. Weintraub said, no, and
urged Tucker to accept the two items without checkoff.
Tucker said, no. Asked about the physical examination
14 Tucker's testimony indicated that he listed a good many more
outstanding issues in addition, including call out and reporting pay,
holidays, vacations, work week and wage rates, health and welfare;
clause, the Union said that it needed it. The parties were
still apart on the savings clause since the Union wanted the
right to renegotiate contract provisions in the event of a
decision of invalidity by a court. Tucker asked Weintraub
to consider a new union proposal on arbitration. This
proposal was that if a grievance was not adjusted to the
Union's satisfaction, the Union would be permitted any
legal or economic recourse. Weintraub said that he would
consider it. Each party had a new or newly drafted
proposal on no-strike. They differed on the Union's
inclusion of a provision exculpating the Union if it made a
good-faith effort to prevent a strike.
The parties met again on March 10 at the union hall. A
committee or group of employees was also present for the
first time. Weintraub said that the two sides were apart on
checkoff; union shop; arbitration; maintenance of stand-
ards; savings clause; pay period; no-strike; physical
examination ; bonds; workmen's compensation. Weintraub
then made a proposal on maintenance of standards and
Tucker agreed to it. Weintraub asked Tucker about his
position on bonds and workmen's compensation and
Tucker said his position was the same . Tucker asked about
checkoff. Weintraub said that the dues are a matter
between the Union and its members and the Company did
not want to be in the middle. He said that some of the
employees had told the Company that they had signed
checkoff authorizations but they did not want their dues
checked off. Weintraub suggested that instead of checkoff,
the Union could send its members a monthly statement
and have them come to the office and pay. He said that the
Company would help by furnishing the Union a list of
names and addresses. Tucker asked whether the Company
would allow union stewards to collect duel on company
time . Weintraub said, no. Tucker then suggested that the
standard checkoff be used, plus a provision allowing an
employee member to drop his membership in the union
upon giving proper written notice. Tucker said that the
latter provision would meet the Company's concern about
employees being locked into the checkoff. Weintraub said
that it sounded like an agency shop but he asked Tucker to
put his proposal in writing and the Company would
consider it.
The parties considered a union proposal on arbitration
which would provide that on any grievance not adjusted to
the Union's satisfaction , the Union would be permitted
any legal or economic recourse. Weintraub said that this
would, if anything, be worse for the Company than a
standard arbitration provision. Weintraub made an appeal
to induce the Union and the employees present to forego
arbitration. He said that the employees even without
arbitration would be getting a grievance procedure and
they had not had this before and had problems in finding
supervisors to complain to and they had had the problem
of perhaps going over someone 's head on some complaint.
Weintraub pointed out the changing nature of the business
and said that the Company could not allow third party
arbitration to fix its feet in cement . Tucker said that if an
arbitrator's decision was unfavorable to the Company the
pensions ; cost of living; sick leave, education assistance ; credit union,
absence, shift differential.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union would be willing to renegotiate the matter and thus
the Company would not be locked in cement. Weintraub
rejected this idea. Weintraub said that next time, at the
time of the next contract, it might be that that relationship
with the Union had matured enough and the Company
might have stabilized its policies and operations so that it
would not be afraid of arbitration. Shortly before the end
of the meeting Tucker said that the Union would accept
the Company's counterproposal on bonds. Weintraub
asked about possible movement by the Union on the
savings clause and Tucker answered in the negative.
The next meeting was on April 11, 1973. Between the last
meeting on March 10 and the April 11 meeting, the Union
had sent another checkoff proposal to Weintraub. This
proposal (G.C. Exh. 10) provided in section 1 for checkoff
of dues of members the Union who had authorized such
deductions; such authorizations would be irrevocable for 1
year or until the termination or renewal of the contract
whichever was sooner, and such authorizations were
automatically renewed unless notice was sent not more
than 15 days before each 1-year period or each succeeding
contract, whichever occurred sooner; section 2 provided
that the form of the checkoff authorization was to be
supplied by the Union (the checkoff authorization form
had been given to Weintraub and has been described
earlier in this Decision (Resp. Exh. 4)); "Section 4. In the
event a member of the Union desires to withdraw from
said union, the member will be permitted to terminate his
or her membership with the Union at any time upon
proper written notice . . . without regard to Section 1
above."
At the April l l meeting, Weintraub said that the above
union proposal on checkoff was in effect an agency shop
and the employees would still be bound by the contract
and by the checkoff authorization cards they had signed.
Weintraub, in substance, suggested that the 1-year irrevo-
cability language be eliminated. He and Tucker discussed
the matter at length. Tucker then said that he would give
Weintraub what Weintraub wanted and, in section 4,
above, of the proposal, Tucker physically crossed out the
words "said union" and wrote "ckoff [checkoff ]" and also
crossed out the word "membership" and wrote "ckoff."
Weintraub then, in effect, said that these alterations did
not solve the problem and he pointed to the language of
section 1 of the proposal and the language of the checkoff
authorization card, both of which spoke of irrevocability
and revocability only under certain specified conditions
such as 1 year and so forth. Tucker indicated a lack of
comprehension of Weintraub's contention and told Wein-
traub to write a checkoff article. Weintraub responded that
Tucker should write it. Weintraub said that he was
rejecting the union proposal and was restating the
Company's basic position that it did not want a checkoff
provision.
Tucker submitted a handwritten "Economic Proposal."
Thus:
Holidays. As proposed Article 15, page 13 of our
original proposal [proposal of August 7, 1972]
Then followed a list of topics such as vacations, health and
welfare, pension, and so forth, each with the statement "as
proposed" in some specified article of the Union's original
August 7, 1972, contract proposal. On shift differential, in
addition to a reference to the original contract proposal,
there was written "25 cents." Also, with reference to wages,
there was written "40 cents. Wages open for Discussion."
According to Tucker, agreement was reached on the
vacation article but not on holidays. On shift differential
Tucker proposed 20 cents although the written proposal
showed 25 cents. On wages, Tucker states that he proposed
30 cents across the board. Tucker states that this was the
first time that wages and amount came up and that the 30
cents did not include fringe benefits. The financial matters
had not been previously discussed and, according to
Tucker, the parties had not done so "because we were tied
up on the language of arbitration, check-off, no strike or
lockout." As far as appears the only discussion of wages on
April 1l was very limited. Tucker testified that he had
written that wages were "open for discussion." Weintraub
asked him what the Union had in mind on wages and
Tucker replied "30 cents an hour across the board." As far
as appears the matter was not discussed further and
Weintraub neither said yes or no or otherwise. 15
The next meeting was April 20, 1973. The union
representatives were again accompanied by a group of
employees. Considerable time at the meeting was devoted
by Tucker to asking the aforementioned employees their
opinions about arbitration and other matters separating
the parties. At one point Tucker said that he would agree
to the Company's no-arbitration grievance procedure if the
Company would drop the management rights clause which
apparently the parties had agreed on previously. Wein-
traub rejected this proposal. The Union then asked
Weintraub for an economic proposal. Weintraub indicated
that he was prepared to submit an economic proposal but
indicated that the Company had not yet received the
Union's proposal on wages, which, Weintraub said, was an
unusual situation. After a caucus, according to Weintraub,
Tucker said that the Union wanted 40 cents an hour in a 1-
year contract and he also referred to a shift differential.is
During the meeting Weintraub submitted in writing what
was captioned as "American Express Company Economic
Counter-Proposal." 17 The first article was holidays, with
four sections under that article; vacations, three sections;
and other articles such as absences with pay; work week
and wage rates. There were no proposed wage rates set
forth under this last-mentioned article. After lunch on that
date the Union submitted a handwritten document entitled
"Union Counter-Proposal," including the initial statement,
"this is a Package Offer." Then were listed 13 subjects:
checkoff; arbitration; holidays; vacations; shift differential
and statement that Union was agreeable to 20-cent
differential; education assistance plan was acceptable to
Union; sick leave; credit union "OK"; health and welfare;
15 Weintraub's testimony tends to indicate that the matter of wages did 16 Tucker's testimony places the first discussion of wages at the April I I
not come up until the next meeting. April 20, and that he told Tucker on meeting.
April 20 that he had not yet received a wage proposal from the Union 17 Resp Exh. 14.
AMERICAN EXPRESS RESERVATIONS, INC.
pension; cost of living; absences with pay; work week.
Included on the document were statements that all
proposals and agreements were tentative and subject to
agreement on the entire package. Weintraub asked various
questions about the items on the union counterproposal.
He said that the Company accepted items that he named in
the union counterproposal such as 20-cent shift differen-
tial; educational assistance; and so forth but that he
rejected checkoff and arbitration. The parties asked
questions about and discussed the various proposals and
counterproposals aforementioned. Since the Union had
submitted a 40-cent wage increase proposal, Hall asked
Weintraub if he did not have a wage proposal. Weintraub
said that he had only just not received the union wage
proposal. Before the meeting ended, Tucker said that he
had learned that in indicating agreement to a 20-cent shift
differential he had agreed to less than the existing
differential and he therefore was withdrawing his agree-
ment. At a later meeting the parties reached agreement on
a higher than 20-cent shift differential.
On May 4, the parties met again. The Union submitted
what it captioned as "Union Economic Counter Proposal."
Various subjects with accompanying language were pres-
ented such as checkoff; arbitration; holidays; vacations;
work week and wage rates [no monetary wage rates set
forth]; sick leave; and so forth. Some other listed subjects,
such as "Savings Clause"; "No Strike or Lockout";
"Duration," simply stated, "open for discussion." After
caucusing, the Company stated its position on the various
above items. There was agreement on a number of
subjects, including shift differential, and on other subjects
the parties were near agreement except for some language
modifications or clarifications. Weintraub told the Union
that the Company rejected checkoff and arbitration.
On arbitration, the union proposal simply stated that
management rights were excluded from arbitration. On
checkoff, the Union's May 4 proposal provided in section 1
for checkoff of dues by the employer if the employee had
authorized the deduction in writing; 18 it provided in
section 2 that "the form of such written authorization shall
be on a form supplied by the Union";19 in section 4 was
stated that "in the event a member of the Union desired to
withdraw such authorization (checkoff) the member will be
permitted to terminate his or her authorization (checkoff)
at any time upon proper written notice...."
Regarding the above arbitration proposal, Weintraub
said that he rejected it. He said it was not simply a question
of management rights being excluded from arbitration but
the Company's oft-expressed position was that it was
objecting to arbitration as a matter of policy because the
Company needed flexibility and the right to make mistakes
in a complex business. Weintraub said that if there was an
arbitration provision in the contract, the Union could
subject almost any company action or change to arbitra-
tion by asserting that this or that action constituted a
change in operating policy. Tucker said that by its stand on
arbitration, the Company in effect wanted to have the right
18 Unlike prior union proposals nothing was said in the section about the
conditions under which a checkoff authorization could or could not be
revoked by the employee
19 The checkoff authorization form used by the local union had been
1113
to change everything or anything in the contract, such as
changing eight holidays to six . Weintraub said that the
Company could not do this even if there was no arbitration
clause . He said that there would be a binding contract and
the Union could bring the Company to court if it violated
the contract.
With respect to checkoff, Tucker asked Weintraub why
he did not want checkoff. Weintraub said that the
Company did not want to be involved in the matter and
did not want to be in the middle between employees and
Union on the matter of dues collection. Tucker said, would
you agree to a steward collecting dues on company time.
Weintraub said, I am not going to speculate, are you
proposing that. Tucker said that he was not proposing,
adding that he had made such a proposal 4 months ago
and Weintraub had rejected it.
The next meeting was on May 17, 1973. Parham, an
International representative of the Union from the South-
ern Conference of Teamsters in Atlanta, was present, with
Tucker and Hall, for the Union, and Parham took the
leading role in the meeting . Parham said that checkoff and
arbitration were the main problems. Weintraub agreed and
said that he felt that if agreement was reached on those two
items, the remaining issues would be no problem. On
arbitration, Weintraub went over briefly the Company's
reasons for not wanting arbitration, such as the complexity
of the operation, the need of flexibility, and so forth.
Weintraub said, why not try the Company's proposed
three-step grievance procedure without arbitration this
time and he said that the next time, the next contract, he
felt that there would be no problem. Parham said that there
were many things that could be done. He said that if the
parties did not resolve a grievance by the third step, the
attorneys for each side could then "work on it and if they
could not work it out they could then "mutually agree on
arbitration." Weintraub said that he was interested in the
concept but rather than the attorneys he believed that a
high ranking union representative and a corresponding
management man could be used. Parham expressed no
disagreement to this modification of his suggestion.
Weintraub then asked, what if the Company did not feel
that the grievance should go to arbitration and the
company and the union representatives did not mutually
agree on arbitration.
The last-mentioned questions by Weintraub are clear
indications that he interpreted Parham 's suggestion as
providing for arbitration only if there was mutual agree-
ment by the company and union representatives on going
to arbitration. Indeed, Parham had stated that if the
representatives of the parties, which he had originally
suggested as attorneys, could not agree they could then
mutually agree on arbitration. When Parham answered
Weintraub's question as to what would happen if there was
no mutual agreement on going to arbitration, Parham said
that he was sure that the two representatives could agree
on an independent third person ,20 such as a judge, "to
given by the Union to Weintraub earlier in the negotiations . The form
stated that it was irrevocable for 1 year and so forth
20 It is not clear what happened if the representatives did not agree.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handle it and be bound by it." Weintraub said that this was
a new concept and he was interested.
I am not certain what Parham had in mind in the above
answer, but I believe that Weintraub either was unsure of
the meaning of Parham's remarks or interpreted the answer
as within Parham's initial proposal that arbitration would
be resorted to only when the parties' representatives
mutually agreed. This concept, as Weintraub viewed it,
carried through into what Parham said about the repre-
sentatives agreeing on a third person such as a judge and
agreeing to be bound by his decision.21 In short, such a
step would only be taken by mutual agreement, as
Weintraub understood it and this is why he stated that
Parham had put forward a new concept. The new concept
proposal was that arbitration would not be compulsory.
Heretofore, all the union proposals had provided for
ultimate compulsory arbitration, with such variations as
the parties selecting a third neutral party by mutual
agreement or from a Federal mediation list, and this third
party in conjunction with the company and union
representatives would constitute an arbitration board that
would render a binding arbitration decision.
At the May 17 meeting, Parham also mentioned the
possibility of disposing of unresolved grievances by having
three employees and three management people in the same
room and reaching a decision by majority vote. In response
to a question by Weintraub as to feasibility, Parham said
that the six persons would be kept in the room until a
majority decision was reached. There was little discussion
or comment on this matter.
With regard to checkoff, Weintraub asked if the Union
would consider changing the language on the Union's
checkoff authorization card to conform to the contract
language regarding withdrawal or revocation.22 The Union
caucused and, upon returning, Parham said he might
consider what Weintraub was asking and said that the
Union had a contract in Atlanta where this had been done.
Tucker said something to the effect of having. some
checkoff authorization forms that Weintraub would find
acceptable. Weintraub indicated that the various proposals
made at the meeting appeared promising. The parties then
agreed to meet at 10 a.m. on May 31.
On May 25, Weintraub called Tucker and Hall and
invited them to lunch. At lunch Weintraub said that he had
something for them that he did not want them to receive
"cold" through the mail and as a matter of courtesy he was
presenting it personally. He handed Tucker and Hall a
letter dated May 25, 1973, addressed to the Union and
signed by Weintraub. The letter read:
The Company has a good faith doubt that your
organization represents a majority of the employees in
the appropriate bargaining unit. Therefore it declines to
recognize your organization for the purpose of collec-
tive bargaining.
After reading the latter neither Tucker nor Hall said
21 Weintraub's testimony indicates that resort to ajudge did not appeal
to him particularly but he did not resist what Parham was suggesting on the
ground that someone else than a judge might or should be resorted to
22 The Union's most recent checkoff proposal had provided that an
employee could terminate his checkoff authorization at any time or written
anything. Weintraub, after a period of silence by all
parties, asked the union men to say something. Apparently
Tucker said something to the effect of having something to
say in the future. At no time was Weintraub asked the
basis of the good-faith doubt referred to in the letter nor
did he volunteer any explication.
The evidence presented by the Company indicates that
on May 23 or 24, 1973, it received copies of petitions
stating that the employees did not wish to be represented
by the Union. The petitions, which I shall refer to as
decertification petitions as a shorthand description, bore
signature names which the Company asserts it believed
were signatures of a majority of the unit employees. These
petitions are asserted to be the basis of the Company's
good-faith doubt of the Union's majority. We shall now
consider the petition aspect of the case.
The Petition
On Tuesday, April 17, 1973, there was a union meeting
of Respondent's unit employees at the union hall. Whether
by design or by coincidence April 17, 1973, was 1 year after
the Union's certification on April 17, 1972. It is obvious
that a year had elapsed since the certification and no
contract had been consummated ; it is also obvious that the
meeting and its date were selected and called by the Union
and not by the Company. We do not know either the
precise purpose of the meeting or what was said at the
meeting itself.
Woody, a unit employee until September 1973, was a
witness called by the General Counsel. She testified that on
April 17, 1973, she saw and spoke to Barbara Emmons and
Jean Harrison, two unit employees whom she had not seen
at prior union meetings . At the union hall, just prior to the
start of the meeting, Woody asked Emmons in the presence
of employees Rekus and two others, why she had come to
the meeting. Emmons said that she was just curious to see
what was going on and, she added, one of the leads 23 had
asked her to come to the meeting. Although asked by
Woody, Emmons refused to divulge the name of the
aforesaid lead. Shortly after the meeting started, Emmons
and Harrison left, having been at the meeting less than 30
minutes. Rekus, a unit employee, confirms the foregoing
testimony of Woody. Rekus stated that Emmons and
Harrison were at the meeting only 15 or 20 minutes. Rekus
states that Emmons said that a lead agent had asked her to
come and "monitor" the meeting.
Woody states that she was at work the following day,
Wednesday, April 18, and that she was sitting next to Jean
Harrison. According to Woody, Harrison had some kind
of a problem or words with a client that morning on the
telephone. The lead agent had "bugged" [criticised]
Harrison about the matter and Harrison and the lead agent
had an exchange of words. Woody places this incident at
or about 10:30 a.m. Woody states that after her words with
the unnamed lead agent, Harrison "returned" to her work
station and called her section lead agent, Larry Boone,
notice. The checkoff authorization card, however, stated on its face that it
was irrevocable for i year or for the term of the contract whichever was
sooner
23 A lead agent is a supervisor, apparently the lowest level of supervisor
with respect to unit employees.
AMERICAN EXPRESS RESERVATIONS, INC.
telling him she wanted to see him. Boone said, "o.k." and
Boone and Harrison then left and went to one of the
conference rooms. Woody testified that when she went to
lunch, about 11'30 a.m.. Boone and Harrison had not
returned and that it was about 1:30 or 2 p.m. before
Harrison returned to her work station. Upon her return,
Harrison said to Woody "that she had changed her mind
and that she was against the Union because Larry [Boone]
told her a lot of things about the Union that she didn't
know." Woody asked Harrison what Boone had told her
about the Union and although Harrison apparently
responded in an ensuing conversation with Woody, the
latter testified that she could not remember the conversa-
tion, the words used, or any of the things that Harrison
said that Boone had told Harrison about the Union.
Rekus also testified about events on April 18, the day
after the union meeting. Rekus states that at the company
plant, Harrison sat two seats away from Rekus. According
to Rekus, Harrison had come back 1 minute late from a
break period. The lead agent, Jane Carlson. filled out a
company personnel tardiness slip on this incident and after
sigmng it, Carlson had also secured, in the spaces provided
on the slip or form, the signature of Harrison, as the
employee involved, and the signature of lead agent Larry
Boone. Rekus states that Harrison had some words with
Carlson about being written up for being 1 minute late and
returned to her work station in an agitated state. Rekus
also stated that Hamson then, after about a minute, left
her work station. Rekus does not testify that she observed
where Harrison went or with whom, if anyone. Rekus
testified that she (Rekus) finished work that day about 4:30
p.m. and she had not seen Harrison return to her work
station.
However, the next day, Thursday, April 19, Rekus and
Harrison had lunch together. Rekus asked Harrison what
had happened "yesterday," "where did she go because I
didn't see her come back." According to Rekus. Harrison
said that she had gone to Lillie Todd's office to discuss the
tardiness report that had been written up on April I8 "and
that they had also discussed the Union." 24 Rekus states on
direct examination that Harrison told Rekus on April 19
that Todd told Harrison on April 18 that "the Union was
bad for the Company and that we wouldn't get any
benefits until we had the Union out of the Company and
that we might possibly lose our jobs." On cross-examina-
tion Rekus states that Harrison also told her on this
occasion that Todd said that the girls should not be
represented by the Teamsters because that union was not
familiar with reservation type operations and the contract
the Union had first submitted to the Company was a
trucking contract. Rekus then conceded that the remark
about the employees losing their jobs was Harrison's
opinion, expressed to Rekus on April 19, and was not part
of what Todd had reportedly said to Harrison.25
Although in appearance and manner as witnesses,
Woody and Rekus impressed me favorably, there are some
aspects of their testimony regarding events on April 18,
1973, that are not easy to reconcile. Woody sat next to
Harrison at work on April 18 and Rekus sat two seats
24 Todd is a supervisor and higher in the hierachy than a lead agent
25 On its face, the evidentiary quality of this type of secondhand
1115
away. Woody testified that about 10:30 a.m. Harrison had
some kind of a problem with a customer on the telephone
and received criticism from a lead agent therefor. From her
work station, Harrison then called lead agent Boone and
Boone and Harrison went into the conference room. This
was evidently sometime between 10:30 and 11:30 a.m.
because when Woody went to lunch about 11:30 a.m.,
Woody stated that Harrison had not returned to her work
station. Since the employees had 30-minute lunch periods,
Woody apparently returned about 12. According to
Woody, Harrison did not return to her station until about
1:30 or 2 p.m. and Harrison proceeded then to tell Woody
that Boone had told her about the Union. There is no
mention of any conversation that Harrison had with Todd.
Rekus also testified about Harrison on April 18 but says
nothing about criticism of Harrison by a lead agent
because of treatment of a customer nor does Rekus say
anything about Harrison calling Boone and going to the
conference room with Boone. Rekus speaks of the
reprimand to Harrison because she was 1 minute late in
returning from a break period, and states that Harrison
then left her work station and was not seen again by Rekus
by 4:30 p.m. when Rekus completed her shift. The General
Counsel's Exhibit 3, the personnel tardiness report, signed
by Harrison, and lead agents Boone and Carlson, shows
that on April 18 Harrison left on her break at 1:01 p.m.
and returned at 1:17 and was thus I minute beyond her 15-
minute time. This time period does not jibe with Woody's
account of the period between about 10:30-11 a.m. to 1:30
or 2 p.m. when Woody states she had seen Harrison leave
her work station and go to the conference room with
Boone and returned at between 1:30 and 2 p.m. and
described a conversation with Boone . Rekus, however.
apparently saw Harrison at her work station or nearby
until about I:20-p.m. when Harrison left, not to return by
4:30 p.m. The next day in response to a question from
Rekus as to what happened the day before, Harrison
apparently spoke frankly and told her about going to Todd
and what Todd had told her. There is no mention of going
to Boone or about what Boone said. Possibly the witnesses
were in error in fixing the time of incidents; possibly there
were two separate incidents and that the Boone conversa-
tion was the only one extant when Harrison reported to
Woody; but there is some difficulty as to why over lunch
on April 19 Harrison said nothing about Boone as well as
Todd in describing to Rekus the events of the previous day
or why Rekus did not notice Harrison's absence well
before the ]-minute break episode and Harrison's return
well before 4:30 p.m., according to Woody's testimony.
Employee Franklin, a witness called by the General
Counsel, testified that the first mention she heard of a
petition to get rid of the Union was in "late April after one
of the Union meetings ." Franklin states that on the
particular day, which she did not otherwise fix as to date,
Harrison and Emmons were in the break or lounge area of
the plant, just before 1 p.m., when Franklin was preparing
to clock in for work. According to Franklin, the two
aforementioned girls were talking to some other girls, two
of whom Franklin named; Harrison and Emmons said that
evidence is apparent since neither Harrison nor Todd testified
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had attended the union meeting and "they did not like
the way the people [presumably the union representatives]
were running the meeting, they were ignorant people and
they did not want them as bargaining agent for them
[themselves], and they would try to get a petition to kick
out the Union." As Franklin went into her work station,
employee Joyner was telling employee Seessel of the
advantages of a union. Emmons then said that she,
Emmons, did not want the Union and she had been sent to
a meeting "to monitor" it by one of the lead agents and
that "she [Emmons] did not want the Union . . . that the
Union people were ignorant and they didn't know how to
talk." Emmons and Joyner then argued about their
respective sentiments regarding the Union. Later, about 6
p.m., some of Franklin's friends asked her if she had heard
about the petition being circulated to get rid of the Union.
Franklin said, no. As far as appears Franklin never saw a
petition or its circulation. The name of Jean Franklin does
not appear on any petition in evidence.26
The remaining evidence submitted by the General
Counsel to support complaint allegations that Harrison
and Emmons were agents of Respondent and were assisted
by Respondent in soliciting signatures for a decertification
petition involves the "pot luck" dinner on Good Friday,
April 20, 1973. There was also a pot luck dinner on
Mother's Day, May 11, 1973.
Traditionally. Respondent's employees have had pot
luck dinners on days such as Mother's Day, Good Friday,
and so forth. These affairs are informal and are launched
by two or three employees going to a supervisor and
proposing that a pot luck dinner be held on some
particular day. With permission granted by the supervisor,
all employees are then invited to participate in the pot luck
dinner by bringing food of one kind or another. In short,
each employee who wishes to participate brings this or that
kind of food suitable for the buffet type affair. The food is
on tables in the lounge area of the plant and employees
partake of the food during their lunch and break periods.
Since the employees have a wide range of starting and
quitting times the pot luck affair goes on all day. The
employees who initiate a particular pot luck dinner by
speaking to a supervisor are delegated to more or less
preside over the food, dishes, and so forth during the
particular dinner.
Employee Rekus testified that at the April 20, 1973, pot
luck, she observed Harrison and Emmons serving at the
pot luck at 11 a.m. and again about 1 p.m. Later in the day,
at 3 or 4 p.m. Rekus saw employees other than Harrison or
Emmons serving at the pot luck. On the two aforemen-
tioned times when Rekus observed Harrison and Emmons
at the pot luck, she says that they were putting dishes on or
off the table and, in effect, were serving the meal. Neither
on these occasions nor at any other time has Rekus ever
seen the decertification petition and she testified that she
first heard of the petition in the week following April 20
when some of her fellow employees told her there was a
petition to decertify the Union.
The other employee witness who testified about the
petition was Franklin. As far as appeared, Franklin did not
see the petition or see it in circulation or otherwise. A day
or so after the April 17 union meeting , Franklin states that
some other employees told her that a petition to decertify
the Union was being circulated.
The remaining evidence by the General Counsel regard-
ing the petition was through the testimony of Respondent's
vice president, Whyte. The latter said that he first heard a
rumor about a petition in the latter part of April 1973, but
could not recall the source. Whyte states that he thereupon
informed company counsel of the rumor. Counsel advised
him that there should be no circulation of a petition
allowed in working areas. Whyte relayed this advice to his
four top supervisors and he assumed that this policy was
passed to lower supervisors.27
On May 24, 1973, according to Whyte, Personnel
Manager Hargrove told him that Hargrove had received a
petition from the employees to decertify the Union with
about 116 names thereon. Whyte states that he told
Hargrove to verify that the names on the petition were
those of active employees in the bargaining unit. Thereaf-
ter, according to Whyte, Hargrove told him that he had
checked and the petition bore the names of a majority of
the said employees. Whyte states that he himself checked
the petition to see whether there were noticeable duplica-
tions or whether it appeared that one person's handwriting
had written more than one name. No one checked the
petition signatures with any signatures of employees that
Respondent may have had in its possession.
Respondent introduced as its exhibit 20 a 14-page
computer printout of its payroll register as of May 25,
1973. Such a document is received every 2 weeks at
Respondent's Memphis office from its Phoenix office,
together with paychecks. The original payroll is kept in the
Phoenix office. Since Respondent's Exhibit 20 contains the
names of all employees, including supervisors, trainers, and
other nonunit persons, as well as employees terminated
before May 25, the nonunit names are crossed through by
green marking pen lines . There were, according to the
aforesaid payroll register, 204, 206, or 210 unit employees
on May 25.28 The petition bears 119 signatures of which
Ill or 112 names are those of unit employees as of May 25.
The petition in evidence is actually composed of 14 sheets
of paper, some of which are plain white bond-type paper;
one small yellow lined piece of paper; some lined large
white sheets; some lined large yellow sheets ; and a small
note-type piece of white paper. These pieces of paper have
longhand writing on top, that reads, with very slight
variation, we, the undersigned employees of American
Express do not wish to be represented by Teamsters Local
667. Underneath are signatures. The number of signatures
on the different sheets varies from I to 72. On the last
named sheet, the first two signatures are those of Barbara
Emmons and Jean Harrison. No dates appear on any of
the petitions.
As we have seen, on May 25, 1973, Weintraub notified
26 As far as appears no one forged Franklin's name on a petition and advice passed to supervision was that the petition could not be circulated in
there is no evidence of any other forged names on the petition in evidence the working area on working time.
(Resp Exh . 18). 28 The variation depends on the inclusion or exclusion of certain
27 At a latter point, Whyte testified that the advice from counsel and the employees on leaves of absence
AMERICAN EXPRESS RESERVATIONS, INC.
the Umon that the Company had a good-faith doubt that
the Union represents a majority of employees in the unit
and recognition was withdrawn.
Conclusions
The complaint alleges that Respondent negotiated in bad
faith and with no intention to entering into a final and
binding contract. Then we have the evidence describing the
negotiations and the fact that more than 12 months after
the Union was certified the parties had not only failed to
reach agreement on such major issues as checkoff and
arbitration but also had not reached final agreement on a
substantial number of other issues. The General Counsel
would presumably state that the reason no contract was
arrived at after those many months was because the
Respondent was engaging in an effort to avoid contractual
agreement . But amid all the major and other issues on
which the parties had not reached agreement, on May 17,
1973, International Representative Parham, who, in my
opinion, clearly was sent or came into the meeting by the
Umon as a dens ex machina to break the logjam in the path
of contractual agreement , stated that the main problems
were checkoff and arbitration.29 Weintraub agreed and
said that he felt that, if agreement was reached on these
two issues, other matters would present no problem. The
thought occurs therefore that the 13 months of bargaining
and the fact that no contract had resulted after this period
do not equate automatically with the conclusion that
Respondent had only been engaged in surface bargaining
with no intention of consummating a contract.
The negotiations got off to a delayed and relaxed start.
Although the Union had been certified on April 17, 1972,
the parties did not meet until June 23, 1972, and spent their
time on that date in discussing everything but a contract.
Near the end of the meeting. Tucker handed Weintraub
the National Master Freight Contract and Supplement of
the trucking industry and suggested that Weintraub draw
up a proposal contract.30 The Union did not submit its
initial contract proposal other than the National Freight
Contract until August 7, 1972, nearly 4 months after its
certification. In the period between April 17, 1972, and
May 17, 1973, the parties had 20 bargaining sessions or an
average of approximately 1.5 sessions per month.
It is not my intention to write a critique of how many
times parties meet or should meet in negotiating a contract.
It is relevant, however, to observe that while the duration
of the bargaining was long by the calendar in months and
year, it was relatively short in number and frequency of
sessions . The bargaining sessions were arranged by mutual
agreement and were mutual accomodations to the fact that
the company and the union representatives, Weintraub
and Tucker and Hall, respectively, had other duties, work,
and interests , which apparently they did not, in any major
degree , subordinate to the instant contract negotiations.
The foregoing is, by the same token, a factor, in my
opinion, why many months elapsed before the parties
realized or accepted that they had some very significant
29 It is fairly clear that, since Parham had not participated in the prior
bargaining sessions , his source of information as to the issues was Tucker or
Tucker and Hall. the union negotiators from the beginning.
1117
differences on which they were each very firm and that
consummation of a contract would not be easy.
Although there can be, of course, no certainty on such
things, it is my opinion that it is at least possible that had
20 meetings occurred between April 17, 1972, and August
17, 1972, a modest average of 5 meetings a month, the
parties might have earlier reached the point of hopeful or
potential resolution of major differences that they did not
reach until about May 17, 1973. Succeeding meetings
might have been fruitful. And speculative though the
foregoing may be, it is relevant to what did occur, since
what did occur, 13 months of negotiations and no
agreement, is not simply explained by saying that the
Respondent was only going through the appearance of
bargaining and had no desire to reach agreement.
The General Counsel, in his brief, asserts that Weintraub
used his friendship with Union Negotiators Tucker and
Hall "to lull them into a false sense of security and thereby
delay discussion of the substantive issues ." I would agree
that there was a friendly relationship between Weintraub
and Hall and Tucker. They had known each other
professionally in prior contract negotiations and they had a
good personal relationship. Tucker and Hall are experi-
enced adult union business agents and I do not believe that
Weintraub, unilaterally, lulled them into a false sense of
security and thereby delayed discussion of issues. The
situation, as I view it, is that the good and friendly
relationship between the three negotiators led each side to
view the other side as "good guys" and "good guys" were
therefore perceived as sitting on each side of the bargaining
table.
In my opinion, Tucker and Hall believed that there
would be little ultimate difficulty in securing from
Weintraub the kind of contract the Union wanted, at least
as to such major union desiderata as a contract provision
for checkoff of dues and probably arbitration. This
sanguine view, initially at least, was not without some
justification. It was not anything that Weintraub said that
gave the Union a basis for its expectations, nor did he
"lull" them into false expectations. The fact is, that, as the
Union knew, and as Weintraub knew, in all prior contracts
that Weintraub, on behalf of various clients, had negotiat-
ed with the Union, he had ultimately agreed to some form
of checkoff and some form of arbitration. It is my opinion,
therefore, that initially and even after negotiations began
in the instant case , the Union was confident that
ultimately, despite a period of resistance , Weintraub would
agree to checkoff and that a contract satisfactory to the
Union would be arrived at. There is little doubt in my
mind that Weintraub was experienced enough to be
generally aware of the foregoing atmosphere but that he
hoped that his arguments and his powers of persuasion
with his friends on the other side would enable him to
negotiate the kind of agreement that he and the Company
wanted.
Before discussing certain specific aspects of the negotia-
tions, it is appropriate to comment briefly on the General
Counsel's contention in his brief that, because Weintraub,
30 The Union did not specify what parts or adaptation of the National
Freight Contract it had in mind.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his testimony, said that in all his contract negotiations,
including the instant negotiations , he regarded certain
contract items as chips or cards that were tactically
withheld at various stages in order to secure certain other
items from the opposing side, this illustrates "Respondent's
lack of good faith in bargaining." I do not agree. Although
the General Counsel takes umbrage at Weintraub's
exposition , it is my opinion that it is the nature of collective
bargaining or any other bargaining and negotiating by
people of experience, that, according to their respective
positions, one party starts high and the other low. If a
union is prepared to settle for a 20- or 25-cent increase, it
may initially demand 80. The employer, although he may
be willing to ultimately agree to 15 or 20 cents, may
initially offer 5 cents. They then bargain out their
differences. The same is true of other contract items.
Initially one party will say, no on a particular subject but
will modify its position or agree when , in the course of
bargaining, the other party yields on some other item it
originally demanded. There is a constant interplay of
withholding and giving in the course of bargaining and
whether pension clauses, grievance clauses, arbitration
clauses, or other clauses are referred to as cards or chips to
be tactically withheld or yielded at various points, this is
the nature of collective bargaining. And each party is
engaged in this process in an effort to arrive at the best
attainable con tract from their respective viewpoints.
At the July 14, 1972, meeting, before he had received any
contract proposal from the Union other than the National
Freight Contract, Weintraub told the Union that there
would be a basic problem because, as a matter of principle,
the Company did not want a checkoff clause . The Union,
in effect, said that it considered such a clause important
and essential.31
On July 24, the next meeting, the Union said checkoff
was essential . Weintraub urged the Union to forego
checkoff in the first contract, indicating that, at the next
contract, checkoff would be no problem. The Union's
response was negative. Weintraub suggested a checkoff
clause that would be operative for checkoff authorization
cards signed by employees after execution of the contract,
or an open end checkoff whereby an employee could
revoke her checkoff authorization at any tune. The Union's
response was negative. A few days later, Weintraub spoke
to Augustine, president of the Union, about Weintraub's
two last-mentioned suggestions on checkoff. Augustine's
response was negative.
In subsequent meetings there was nothing new on the
parties' differences regarding checkoff.
On November 30, 1972, Weintraub made a strong
personalized appeal to Tucker and Hall. He appealed to
them as realists , practical men, and as friends, to forego
checkoff and arbitration in the initial contract and that
aside from these two items the negotiators had or would
have no real problems. The Union said that it had to have
the checkoff but said that if checkoff was granted it would
probably agree to drop arbitration. On December 6 or 7 in
speaking with Augustine, Weintraub again made the same
strong plea that the Union forego checkoff and arbitration
in the first contract . Augustine 's response was that if
checkoff was granted, the Union would probably be willing
to drop arbitration.
The surrounding context of the foregoing includes a
private telephone conversation between Tucker and
Weintraub on November 28, 1972 . It is uncontroverted
that Tucker told Weintraub that Weintraub "knew" that if
Weintraub did not agree to checkoff , President Augustine
would instruct Tucker not to agree on other contract items
"until you agree to checkoff ." On December 6 or 7,
Augustine himself told Weintraub that "as long,as you
refuse to agree to checkoff, we are not going to negotiate
anything else [i .e. they would meet and discuss but would
not agree on a variety of other contract items] ." From the
foregoing , as well as from Weintraub 's testimony and from
the evidence of what transpired at the bargaining sessions,
I am satisfied that both sides were using various contract
items as tactical means for achieving the contract results
they each respectively desired on the major issues.
While the two main issues were checkoff and arbitration,
the evidence convinces me that the paramount issue was
checkoff . The Union had indicated a willingness to forego
arbitration in return for checkoff , but it had never offered
to forego the latter. There were other issues that were
difficult and on which agreement had not been reached,
but the parties were in agreement , and I concur , that the
logjam was centered on checkoff and arbitration and, in
my opinion, in that order.
In April and May 1973 the parties had made substantial
progress on checkoff . This was principally due to new
union proposals to meet Company's objections. The Union
agreed to state in the contract that a member could
terminate her checkoff authorization upon proper written
notice to the Union. By May 17, the only aspect separating
the parties was Weintraub's contention that the checkoff
authorization form should conform to the contract
provision on checkoff revocation. In short, the checkoff
authorization card still stated that checkoff was irrevocable
for 1 year or for the term of the contract whichever was
sooner. At the May 17 meeting, the Union indicated that it
would come forward with a checkoff authorization card
that would satisfy Weintraub's objection above mentioned.
Although no such form was sent to Weintraub between
May 17 and 25, the prospect appeared promising by the
end of the May 17 meeting that the parties might reach
agreement on the checkoff article proposed new authoriza-
tion card . In any event, in my opinion , there was no
impasse on checkoff at the end of the last meeting which
was on May 17.
Both parties concurred on a no-strike clause except that
the Union wanted an exculpatory clause therein and the
Company opposed such a provision. In my opinion, the
aforesaid disagreement was serious but whether the Union
was being firm on the exculpatory clause to block
agreement on the entire no strike clause absent agreement
on checkoff and arbitration, or otherwise, I do not know. I
also do not know if the Company would have held firm in
opposing the exculpatory clause to the point of having the
entire no-strike article founder. However , it is my opinion
am Details of discussions of checkoff at the various meetings are omitted
in this summary , as are discussions of some other subjects.
AMERICAN EXPRESS RESERVATIONS, INC.
that the parties had not reached an impasse on arbitration
by the close of the May 17 meeting. It is not possible to
know how Parham's arbitration proposals would have
fared when they were put down in black and white,
presumably by May 31, the date of the next scheduled
meeting . But, on May 17, the Company's response to what
Parham was proposing on arbitration was not negative and
was at least cautiously optimistic or favorable. In my
opinion, an impasse had not been reached on arbitration.
It is also my opinion that there was no general impasse and
that on items, other than the major items, the parties might
well have made progress to the point of agreement once the
major checkoff and arbitration were resolved.32
The General Counsel's brief states that "the Union had
indicated a willingness to bind itself contractually . . . that
it would not engage in strikes . . . . However, the
Respondent remained steadfast in its opposition to any
form of arbitration." The Supreme Court is then cited to
the effect that "the agreement to arbitrate grievance
disputes is the quid pro quo for an agreement not to
strike."33
Prescinding from the fact that in the instant case the
Union's indicated willingness to accept a no-strike clause
was a qualified one and involved an exculpatory provision
on which no agreement had been reached, I do not believe
that it is the law that Union proffer of, or willingness to
accept, a no-strike clause legally compels employer
agreement to arbitration. Even if parties bargain to
impasse, which is not the instant case, on the issue of an
employer's insistence on a no-strike clause and a corre-
sponding refusal to agree to arbitration, I am not
convinced that, as a matter of law, such a position is per se
a refusal to bargain. It may be part of a total picture and is
appropriately to be considered in evaluating the entire
bargaining conduct but I doubt that per se aspect.
In any event the cited Supreme Court case is not a case
involving the negotiation of a contract or the parties'
conduct in bargaining. The case involved a labor contract
in which there was a no-strike clause and an arbitration
clause . The issue was whether labor contract clauses could
be enforced in a Federal court. In using the quoted
language about no strike being the quid pro quo for
arbitration,34 the Court was simply pointing out that
Congress had recognized such contracts as binding and
enforceable and went on to say:
It seems, therefore, clear to us that Congress adopted a
policy which placed sanctions behind agreements to
arbitrate grievance disputes . . . rejecting the common-
32 Early in the negotiations both parties had agreed to defer economic
issues such as wages until they disposed of noneconomic issues. Since they
had serious problems regarding the latter, they never actually reached the
point of wage bargauung or bargaining about the existing ment plan which
related to wages Moreover, Weintraub had said that wages would be no
problem This of course was no great gesture of generosity or a blank check
since both parties were aware that there was a Phase III (or iVI) Wage
Board that would probably limit wage increases to the area of 5-7 percent
Moreover, in a period of 6-8-percent inflation, it would appear unlikely that
a Company like Respondent would offer less than a 5-7-percent wage
increase although anything is possible Subsequent to its withdrawal of
recognition from the Union, the Company granted a 6 9 wage increase but
did not grant increases in existing holidays, sick leave, or insurance but did
improve the medical plan
99 Texile Workers Union v Lincoln Mills ofAlabama, 353 U S. 448, 455
1119
law against enforcement of executory agreements to
arbitrate.
It is my opinion that the complaint allegation of refusal
to bargain in violation of Section 8(a)(5) and (1) of the Act
has not been sustained by the evidence as a whole. I
believe both the Company and the Union tried hard and
earnestly to reach contractual agreement albeit they
bargained hard and each party was endeavoring to secure
the contract that it considered essential.
With regard to the other aspect of the complaint, the
General Counsel alleges that employees Harrison and
Emmons were agents of Respondent and solicited employ-
ees to sign a decertification petition. It is also alleged that
Respondent aided the petition solicitors by allowing the
solicitation on working time in working area while denying
similar privileges to employees supporting the Union.
Harrison and Emmons attended a union meeting on
April 17, 1973. In conversation with some other employees
just before the start of the meeting, Emmons stated that
one of the lead agents, a supervisor whom she never
identified, had told her to monitor the meeting. Apparent-
ly, a day or so after the meeting, in speaking to some other
employees, Emmons made the same statement.
Since neither Emmons, Harrison, nor the unnamed lead
agent were witnesses , we do not know the context or the
circumstances of any conversation between Emmons and a
lead agent in which this matter of monitoring the Union
meeting came up. We do not know who first brought up
the matter of the union meeting or what the lead agent
intended and what Emmons understood by the phrase,
monitor the meeting. Actually, we have no way of knowing
whether the actual word "monitor" was Emmons' word by
way of paraphrase or whether the unknown lead agent
used that particular word.35
To "monitor" means, most commonly, to check or watch
or observe. A connotation of illegality might be to equate
monitoring a meeting with surveillance or to say that, in
monitoring the meeting, the person was to act as an agent
provocateur at the meeting by challenging statements
made by those presiding at the meeting or asking
provocative questions. But, in view of the fact that
Emmons and Harrison said nothing during the meeting
and left shortly after it started and made no attempt to
induce others to leave, the surveillance and agent provocat-
eur aspects are very thin indeed.
Since neither by way of background nor complaint
allegation does evidence appear that, during the election
period of early 1972 and thereafter in 1972-73, Respondent
34 It is probably true that , when parties agree on a contract with a no
strike clause and an arbitration clause, they probably considered one clause
to he the quid pro quo for the other But there is no Pavlovian law of
bargaining that, if a no strike clause is wanted , arbitration must be granted.
At least the Lincoln Mills case does not stand for such a proposition.
11 1 have of course been proceeding on the assumption that what a
witness states was told to her by Emmons is what Emmons said to the
witness. The veracity and accuracy of Emmons is another matter since she
was never examined or cross-examined as a witness . Perhaps what Emmons
said was the truth or perhaps it was her own idea to enhance her sense of
importance to say to other employees that an unnamed lead agent had
asked her to monitor the meeting. There is no evidence that Emmons had
ever made the statement in the presence of any supervisor or that any
employee had reported Emmon's statement to management or that
management ratified the statement.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in any independent acts of antiunion conduct,
proscribed by Section 8(a)(1) of the Act, such as threats,
surveillance, interrogation, or assistance to any employees
opposed to the Union, it is fair that we consider another
possible explanation for what occurred when such an
explanation cames no illegal overtones. It admittedly will
be speculative but the entire matter of monitoring the
meeting at the direction of an unknown lead agent is based
on secondary evidence and leaves large gaps in the
evidentiary standard of reliable evidence.
The record shows that a day or two after the April 17,
1973, union meeting, Emmons and Harrison told some
other employees that they had attended the union meeting
and they did not like the way the union representatives
were running the meeting, that the representatives were
ignorant people, and they did not want them as representa-
tives and they would try to get a petition to kick the Union
out36 In view of the foregoing, it is not implausible that at
some date before the union meeting Emmons had a
conversation with a lead agent. Perhaps Emmons raised
the union, matter or perhaps otherwise. During the
conversation, the lead agent may have said that the Union
is not the kind of a union suitable for this business; go to
the Union and see for yourself what kind of an outfit it; or
perhaps the lead agent used the word, monitor in the
foregoing context. Emmons and Harrison went to the
meeting and the next day or so Emmons told other
employees that they had been at the meeting and expressed
her views of the Union as above described.
The evidence that employee Harrison had a conversation
with Supervisor Boone or Todd or both, on April 18, 1973,
indicates that Harrison, on her own initiative, asked to see
Boone or Todd and went to one or the other, or both, to
speak about some criticism she had incurred from another
supervisor. In the course of the conversation, the topic of
the Union came up. Who initiated this topic does not
appear. In the conversation, Todd told Harrison (accord-
ing to what Harrison told a witness who testified) that the
Union was bad for the Company and detrimental to the
employees; that the Teamsters Union was not suitable
since it was not familiar with the Company's work and had
submitted a trucking contract to the Company.
In my opinion, the evidence does not establish that
Harrison and Emmons were agents of the Respondent. The
evidence does not show that the petition was circulated for
signatures on company property or on working time or in
the working area; nor is there evidence that anyone,
employee or union representative, sought and was denied
the right to circulate any kind of a proumon or other type
of document. There is no evidence as to who circulated the
petition, or where, or that what was said by the circulators.
It may be that Emmons and Harrison initiated the petition
since the former had expressed an intention to do so and
both had become critical of the Union. Also, on one of the
petitions, the first two signatures were those of Emmons
and Harrison. The evidence, on the whole, in my opinion,
36 Perhaps this asserted disenchantment explains why Emmons and
Harrison left the meeting so early
37 The employees, who were predominantly young women, had no
previous experience with union representation at Respondent's plant When
a majority voted for the Union on April 7, 1972, it was probably their
expectation that, in a matter of a few weeks, the Union would secure for
does not established Respondent's responsibility for, or
illegal assistance to, the petition.37
With respect to Respondent's asserted good-faith doubt
of the Union's majority status, the evidence, in my opinion,
as described and resolved in the Decision, does not
established that the doubt was asserted in a context of
illegal antiunion activities 38 It is also my opinion that
Respondent had reasonable, objective grounds for doubt-
ing the Union's majonty status on May 25, 1973. The
petitions to decertify bore apparently valid signatures of a
majority of the employees in the unit. No claim has been
made in this record that the signatures were forgeries and
no proof was offered to that effect. No claim or proof was
offered to Respondent that the signatures on the petition
were invalid or forged and no counterpetition or other
evidence was ever proferred to Respondent that might
raise a question as to whether Respondent reasonably
believed that the decertification petitions represented the
sentiments of a majority of the employees. Neither in law
nor in logic is there a requirement that Respondent could
only entertain a good faith doubt of the Union's majority,
based on the petition, if it checked the signatures on the
petition with signatures in its possession. The issue is good-
faith doubt, not whether Respondent or the Board or
someone else conducted a card check election in which
signatures on authorization cards are compared to payroll
signatures.
Indeed, the Board in its requirement that a Union, if it
desires that the Board process a petition for certification,
stipulates that the Union must submit at least a 30-percent
showing of interest. The Union then submits, customarily,
signed authorization cards. The Board, in the absence of
allegations of fraud or forgery, then secures from the
employer a list of the unit employees on the employer's
payroll. The Board next compares the names on the
authorization cards with the printed or typed names (not
signatures) on the payroll list. If there is at least a 30-
percent showing of cards corresponding with the names on
the payroll, the Board will process the petition. In short,
the Board evidently is satisfied that such a check as I have
described affords a reasonable basis for belief on the
Board's part that it should spend government time and
money in processing the petition because it has a
reasonable basis for belief that a Union with at least a 30-
percent showing of interest from employees may be able to
demonstrate in an election that a majority of the employees
desire union representation. The Board has quite clearly
accepted the comparison of authorization card signatures
with a list of names as a reasonable basis for believing that
the signatures on the cards are valid. The instant
Respondent checked the signature names on the petition
against its printed payroll and was reasonably satisfied that
the majority of the signatures (that were also a unit
majority) indicated that a majority of the unit employees
them a contract with important benefits After 6, 8, 10, months of contract
negotiations and no contract, there probably was, as time went on, a degree
of restiveness and, in some cases, disenchantment among employees
Finally, after a year of unconsummated negotiations, there apparently was
fertile soil for a decertification petition.
38 Celanese Corporation ofAmerica, 95 NLRB 646,673
AMERICAN EXPRESS RESERVATIONS, INC. 1121
did not want the Union as representative. This was the ORDER
basis for Respondent's good faith doubt of majority.39
The complaint is dismissed in its entirety.
99 There may be some inconsistency in the General Counsel contention circulation and the procurement of signatures from employees and then
that Respondent initiated, sponsored , aided, and assisted the petition in its should he suspicious of the authenticity of the signatures.