Boulevard Storage & Moving Co., Inc.

National Labor Relations Board - Board Decisions

May 11, 1965

152 N.L.R.B. 539 (N.L.R.B. 1965)

BOULEVARD STORAGE & MOVING CO., INC., ETC. 539
arrangements of the employers involved, and in which it is not possible
to determine whether the picketing is violative of Section 8 (b) (4) (B)'
or 8(b) (7).
Boulevard Storage & Moving Co., Inc. , Irving Kirsch Corporation,
United Fire Proof Warehouse Co., Walsh Packing & Storage
Co. and Chauffeurs , Teamsters & Helpers "General" Union
Local 200, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case No. 30-CA-471
(formerly 13-CA-6308). May 11, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Frederick U. Reel issued
his Decision in the above-entitled proceeding, finding that the Respond-
ents had not engaged in certain unfair labor practices as alleged in the
complaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision. There-
after, the General Counsel and the Union filed exceptions to the Trial
Examiner's Decision and supporting briefs. Respondent United Fire
Proof Warehouse Co. 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 powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial errors was committed. The
rulings are hereby affirmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions and briefs, the Respondent's answering
brief, and the entire record in this case, and hereby adopts the Trial
Examiner's findings and conclusions only to the extent consistent with
this Decision and Order.
Contrary to the Trial Examiner, we find that the Respondents vio-
lated Section 8 (a) (5) and (1) of the Act by failing to produce certain
financial data requested by the Union during collective-bargaining
negotiations and by unilaterally reducing wages.
The Respondents, individually referred to as Boulevard, Kirsch,
United, and Walsh, are engaged in local and over-the-road hauling of
household furniture. Since 1955, the Union has been in contractual
relations with the Respondents covering all employees, including local
and over-the-road drivers; since 1961, Respondents have bargained as
a multiemployer group with the Union covering such employees. In
'At the hearing, the Trial Examiner granted the General Counsel 's motion to sever
this case from Case No. 30-CB-15
152 NLRB No. 51.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January and February 1964, during collective-bargaining meetings to
negotiate a contract to succeed the one which was due to expire Febru-
ary 29, 1964, the Union proposed a wage increase for all employees and
the Respondents counterproposed a 19-cent per hour reduction in
wages. Respondents claimed that the local moving phase of their
operations was not making any profit and that it was unable to stay
competitive with the many nonunion moving companies in the area.
Respondents' spokesman advised the Union of the unprofitable local
moving situation by comparing the hourly charge to customers ($4.50
per hour) with the labor cost ($2.64 hourly wage rate plus $.58 fringe
benefits) which amounted to 71 percent of the charge to customers, and
the general overhead cost of 29.6 percent in the industry. The Union's
chief negotiator, Henry Kucera, asked to see the Respondents' financial
records pertaining to their overall operations, including the over-the-
road hauling, but was willing to accept the records of any one of the
Respondents for the purpose of determining "financial plight."
Respondents rejected this request on the ground that the overall infor-
mation was immaterial in the circumstances.
Additional meetings were held between March 10 and May 25, 1964.
On March 10, the Respondents offered to reduce their proposed wage
cut from 19 cents to 15 cents an hour. This proposal was unacceptable
to the Union and the Respondents advised the Union that the 15-cent
cut would nevertheless be put in effect on March 15. The Union threat-
ened strike action and the meeting ended. Wages of all employees of
the Respondents, including those engaged in over-the-road hauling.
were cut 15 cents per hour effective the following week.
The parties next met on April 7. The Union again requested exami-
nation of the Respondent's books relating to sales, costs, and earnings,
and repeated the request in a letter to the Respondents on the following
day. The Respondents replied by letter, repeating their cost figures as
to local moving, complaining about the extent of nonunion competi-
tion, and maintaining that these matters did not require an audit, of
books for verification. At a meeting held on April 23, the Respondents
finally agreed they would supply overall financial data of the four com-
panies upon devising some means for preserving the confidentiality of
the records. However, the employees went on strike on May 14, and no
records were ever furnished. The strike had been authorized by the
employees of all four companies at a meeting held on May 3, after the
employees, concerned about the wage cut, had been informed by the
Union's bargaining committee of its failure to obtain access to the
financial records of the Respondents.
A final meeting was held on May 25, when the Respondents offered to
reinstate the wage rates of the expired contract, but the Union con-
tinued to request a wage increase. A few days later, the Union reached
BOULEVARD STORAGE & MOVING CO., INC., ETC. 541
a separate settlement agreement with Kirsch, providing for the retro-
active restoration of the 15-cent wage cut and a 20-cent wage increase
spread over the next 3 years. Thereafter, the group bargaining
arrangement among the three remaining Respondents was formally
dissolved. Boulevard and Walsh then entered into agreements with
the Union on the same terms accepted by Kirsch. United alone has
not reached an agreement with the Union and its employees were still
on strike at the time of the hearing.
1. The failure to produce data: We agree with the Trial Examiner
that the Act requires an employer engaged in collective bargaining to
produce substantiating data, at the request of a union, where the
employer pleads financial inability to pay a proposed wage increase 2
or takes a position that it is compelled to cut wages,3 and that an
employer's claim that it could not grant an increase and remain com-
petitive so as to avoid losses is equivalent to a plea of inability to pay .4
However, we do not agree with his conclusion to the effect that these
Respondents made no such plea of inability to grant a wage increase
as entitled the Union to examine more than the records relating to local
moving costs, which records, the Trial Examiner found, "the Com-
panies substantially disclosed."
With respect to the nature of Respondents' position taken during
negotiations, the record shows that, at the first meeting on January 22,
Respondents' reply to the Union's proposed wage increase for all
employees was that it could not be granted, according to the testimony
of Thomas Neubauer of the Respondents' negotiating committee,
because of the "very severe competitive and economic problems we were
confronted with" concerning local hauling. At this meeting and at
several subsequent ones, the Respondents rejected the Union's wage
demands and countered with a proposed wage cut on the ground that
unless an overall cut was made, they could not become competitive in
their local moving as to which they were assertedly losing money.
Manifestly, this was a plea of inability to take any action with respect
to wages except to reduce them, albeit grounded upon the asserted ne-
cessity for economic relief in one phase of Respondents' operation, such
as called for the furnishing of substantiating data by one bargaining
in good faith.
Respondent's offer to certain local moving data scarcely suffices to
satisfy this obligation. To adopt a contrary view would be to sanction
Respondents' efforts to isolate their local moving from their total opera-
tions and to regard their dispute with the Union, which related to the
2 N L R.B. v. Truitt Mfg. Co., 351 U. S. 149.
S The Celotem Corporation , 146 NLRB 48.
4 Peerless Distributing Company, 144 NLRB 1510, 1514 ; Cincinnati Cordage and Paper
Company. 141 NLRB 72, 77.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage rates of all employees, as confined to the local moving phase of
their business. But this would be wholly unrealistic as local moving
data alone would not permit of an intelligent evaluation of Respond-
ents' declared necessity for an overall wage cut. For as already indi-
cated, the Union was the bargaining representative of all employees
of Respondents and not of the local drivers only, and it was engaged
in bargaining for all the employees it represented. The wage increase
requested by the Union was for all the employees and the wage cut
which Respondents proposed and later instituted also affected' all- the
employees. Clearly, local moving data alone would -have shed little
light on Respondents' financial status in regard to the bargaining pro-
posals affecting the overall complement.5
Upon the entire record, we find that Respondents, by refusing to
furnish the Union with the overall financial data requested, failed to
bargain in good faith in violation of Section 8(a) (5) and (1) of the
Act.
2. The wage cut: Having found that the Respondents' failure to pro-
duce records during bargaining negotiations was an unfair labor prac-
tice, we also find, in the circumstances, that a bona fide impasse did not
exist as of March 10, when the wage cut was announced. Although
there were differences in the respective wage demands of the parties, it
must be held that the Respondent's refusal to submit all relevant data
contributed sib ificantly to any deadlock in negotiations which may
have existed at that time. This conduct on the part of Respondents
precluded any harmonious resolution of the wage dispute that might
have taken place had meaningful bargaining been fostered by the fur-
nishing of such data. It may well be that such data would have per-
suaded the Union to modify its wage demands to a point which would
have appeared more reasonable to Respondents or the Union might
have been able to convince the Respondents that its proposed wage hike
could be absorbed. Consequently, there was no good-faith impasse
between the parties to warrant Respondents' unilateral actions We
find that the Respondents also violated Section 8 (a) (5) and (1) of the
Act by instituting the wage cut.
3. The strike: The complaint alleges that the strike, which began on
May 14, 1964, was caused and prolonged by Respondents' unfair labor
practices. We find that this allegation has been sustained, as the rec-
ord shows that the strike was caused or prolonged in part by the
5 With respect to the local moving data which was provided, the general industry over-
bead cost figure of 29 6 percent was not, of course , the precise overhead costs of these
Respondents
8 Bethlehem Steel Company ( Shipbuilding Division ), 147 NLRB 977 . The Trial Exam-
iner has noted that if Respondents ' failure to furnish the data required herein were an
unfair labor practice , "I should agree that the `impasse ' of March 10 did not warrant the
companies' action in instituting a wage cut; the 'impasse' would have been occasioned,
at least in part, by the unfair labor practice."
BOULEVARD STORAGE & MOVING CO., INC., ETC.: 543
Respondents' unlawful refusal to furnish financial' data and their
-unlawful wage cut 7 Consequently, the striking employees are entitled
to reinstatement upon application.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondents set forth above, occur-
ring in connection with the operations of the Respondents, have a close,
intimate, and subst antial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and
obstructing- commerce and the, free flow of commerce.
THE REMEDY
We have found that the Respondents have engaged in unfair labor
practices, but the General Counsel, with the Union's approval, has
requested that a remedial order be issued only against Respondent
United, as settlement agreements have been reached between the Union
and the other three Respondent companies. In the circumstances
herein, we shall honor -this request.
Having found that Respondents refused to bargain with the Union
in violation of Section 8(a) (5) and (1) of the Act by refusing to fur-
nish financial records as to their overall operations, and by unilaterally
cutting-,wages, we shall order Respondent United, who is no longer
engaged in group bargaining with the other employers, to supply such
information as to its operations, to restore the wage rates that existed
prior to its unilateral action, and to make whole each of its employees,
with interest at 6 percent per annum, for any loss of pay each may have
suffered as a result of the wage cut.
Having also found that the striking employees are unfair labor prac-
tice strikers, and as the record does not establish that the employees
of Respondent United have abandoned the strike or are unavailable
for reemployment, we shall order that Respondent United offer the
strikers reinstatement to their former or substantially equivalent posi-
tions, upon application therefor, without prejudice to their seniority
or other rights and privileges, dismissing, if necessary, any employees
hired after May 14,1964, the day the strike started, to replace the strik-
ing employees. We shall also order that United make whole • those
strikers who are entitled to reinstatement for any loss of pay they may
suffer by reason of United's refusal, if any, to reinstate them, upon
request, by, payment to each of them, of a sum of money equal to that
which he normally would have earned as wages, with interest at 6 per-
cent per annum, during the period beginning 5 days after the date on
which he applies for reinstatement and terminating on the date of
'7The,Trial'Examiner found that " If either the wage reduction or the refusal to produce
the books is held an unfair labor practice, the strikers are 'unfair labor practice strikers'
as the strike was caused or prolonged by an unfair labor practice."
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United's offer of reinstatement , such loss to be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289, and the inter-
est to be computed in the manner set forth in Isis Plwmbing c0 Heating
Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondents are engaged in commerce within the meaning of
Section 2 (2) of the Act.
2. The Union is a labor organization within the meaning of Section
2 (5) of the Act.
3. By refusing to bargain in good faith with the Union, the Respond-
ents have engaged in unfair labor practices within the meaning of Sec-
tion 8(a) (5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent, United Fire Proof Warehouse Co., Milwaukee, Wisconsin,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Chauffeurs, Teamsters R
Helpers "General" Union Local 200, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the
exclusive representative of its employees in the appropriate unit, by
refusing to furnish financial records dealing with its overall opera-
tions, and by instituting unilateral changes in wages or other terms or
conditions of employment.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the aforesaid Union, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion as guaranteed in Section 7 of the Act, or to refrain from any or
all of such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which it is found will effec-
tuate the purposes of the Act :
(a) Upon request, provide the Union with financial records pertain-
ing to its overall operations.
BOULEVARD STORAGE & MOVING CO., INC., ETC. 545
(b) Revoke the unilateral wage changes instituted on March 15,
1964, and revert to the wage rates existing immediately prior thereto.
(c) Make whole its employees for any loss of pay they may have
suffered by reason of the unilateral wage changes, in the manner set
forth in this Decision and Order.
(d) Upon application, offer to its striking employees immediate
and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privileges,
and make them whole, if necessary, in the manner set forth in this Deci-
sion and Order.
(e) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
(f) Preserve and, upon request, make available to the Board and its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary or useful to determine the amount of back-
pay due and the rights of reinstatement under the terms of this Order.
(g) Post at its plant in Milwaukee, Wisconsin, copies of the attached
notice marked "Appendix." g Copies of said notice, to be furnished by
the Regional Director for Region 13, shall, after being duly signed by
a representative of the Respondent, be posted by the Respondent imme-
diately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notice is not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director for Region 13, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
MEMBER JENKINS, dissenting :
I cannot agree that the Respondent 's implementation of a 15-cent
wage cut on March 15, 1964, constituted a refusal to bargain in light
of Respondent's negotiations thereon in meetings on January 22, Feb-
ruary 7, 19, and March 2 and 10, 1964. I agree with the Trial Exam-
iner's conclusion that an impasse had been reached at the March 10
meeting based as it was on the wide difference between the parties on
their respective wage proposals, and the fact that the Federal mediator
involved had advised the employers that "he felt the entire situation
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
789-730-66-vol. 152-36
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-was hopeless," that they "were awfully far apart and probably couldn't
arrive at any solution to our problems," and that they had "reached a
stalemate." At the time the March 10 meeting disbanded, the parties
had made no arrangements to meet further. The Supreme Court has
recently found a similar factual situation was an impasse.9
Nor does the Respondent's failure to produce financial data about
-the profitable portion of its operations, over-the-road-trucking, consti-
tute a refusal to bargain. As the Trial Examiner succinctly stated :
But the Union has no inherent right to such records. If for exam-
ple, an employer grounds his refusal to give an increase on a sheer
reluctance to pay employees more money, the Union cannot compel
him to produce his books to- support its contention that he can
afford to pay more. So here, the companies' position that because
of local moving competition they wanted to reduce labor costs may
have been a non sequitur, in .the sense that it was an insufficient
reason for a wage cut, but it did not entitle the Union to examine
any general records of profitability, except only those relating to
local moving costs, and those the Company substantially disclosed.
Secondly, the companies and the Union-were in the process of work-
ing out some means of producing the records when the Union struck
and at this point the matter was abandoned. The overall context of
-this case clearly establishes that the parties, who had for years previ-
ously been involved in strike disputes over wages, were in substantial
-disagreement over wage proposals and the strike which resulted was
-simply an economic strike.
I would, therefore, affirm the Trial Examiner's dismissal of the
.complaint.
O Local 374, International Brotherhood of Boilermakers, etc. (American Shipbuilding
Company) v. N.L.R.B., 380 U.S. 300, in which the Supreme Court found an impasse when
"after extended negotiations, the parties separated, without having resolved substantial
differences on the central issues dividing them and without having specific plans for fur-
ther attempts to resolve them-a situation which the Trial Examiner found was an
-impasse "
In connection with the wage increase, compare N.L.R B. v. Crompton-Highland Mills,
Inc., 337 U.S. 217, and N.L.R B v. Benne Katz, d/b/a Williamsburg Steel Products Co.,
369 U.S. 736 See also Empire Terminal Warehouse Company,, 151 NLRB 1359
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
i3oard, and, in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with Chauffeurs,
Teamsters & Helpers "General" Union Local 200, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
BOULEVARD STORAGE & MOVING CO., INC., ETC. 547
ers of America , as the exclusive bargaining representative of our
employees by refusing to provide it with financial records pertain-
ing to our overall operations , or by instituting unilateral changes
in wages or other terms or conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain , or coerce our employees in the exercise of the right to
self-organization , to form labor organizations , to join or assist the
aforesaid Union or any other labor organization , to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in Sec-
tion 7 of the Act, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment , as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL, upon request, furnish to the Union financial records
pertaining to our overall operations.
WE WILL revoke the unilateral wage changes instituted on
March 15, 1964, revert to the wage rates existing immediately
prior thereto , and make whole our employees for any loss of pay
they may have suffered by reason of the wage cut.
WE WILL offer to all strikers , upon their application , immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, any employees hired after
May 14, 1964.
UNITED FIRE PROOF WAREHOUSE CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We Will notify the above-named employees if presently serv-
ing in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting , and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 744 Northern Fourth Street , Milwaukee , Wisconsin , Telephone
No. 272-8600 , if they have any question concerning this notice or com-
pliance with its provisions.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Frederick U. Reel in Milwaukee, Wisconsin, on Septem-
ber 30 and October 1, 1964,1 following a charge filed March 24 and a complaint
issued June 5, presents primarily the question whether the employers' reduction of
the Act because the impasse followed the failure of the employers to produce certain
wage rates following an impasse in bargaining violated Section 8(a)(5) and (1) of
the act because the impasse followed the failure of the employees to produce certain
substantiating data requested by the Union.
At the outset of the hearing counsel for the Charging Party moved to withdraw
the charge against all the named Respondents except United Fireproof Warehouse
Co. This motion was opposed not only by General Counsel but also by counsel for
Respondents, and I therefore denied it. General Counsel stated, however, that no,
relief was being sought against any Respondent except United.
Upon the entire record in this proceeding, including my observation of the
demeanor of the witnesses, and after due consideration of the briefs filed by General
Counsel and Respondents, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS AND THE LABOR ORGANIZATION INVOLVED
Boulevard Storage & Moving Co., Inc. (herein called Boulevard), Irving Kirsch
Corporation (herein called Kirsch), United Fire Proof Warehouse Co. (herein
called United), and Walsh Packing & Storage Co. (herein called Walsh) are Wis-
consin corporations engaged at Miuwaukee in storing and moving household furni-
ture and other goods, Boulevard, Kirsch, and United each receives annual revenues
in excess of $50,000 from the transportation of household furniture and other goods
from Milwaukee directly to places outside the State. Those three companies are
therefore engaged in commerce within the meaning of Section 2(6) and (7) of the
Act. Since, as appears below, Walsh was associated with them, at least at the time
of the events here in question, in a single multiemployer bargaining group, Walsh
was engaged in an activity affecting commerce within the meaning of those sections.
The Charging Party, herein called the Union, is a labor organization which at least
since 1955 has been the statutory bargaining representative for the drivers, helpers,
packers, and warehousemen employed by Boulevard, Kirsch, United, and Walsh.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background-bargaining history prior to 1964
Since at least as far back as 1955 the Union has been the bargaining representa-
tive of the employees of a number of Milwaukee furniture moving companies, but
there are also a number of companies in the same industry and locality at which the
employees are not represented by a labor organization. In 1955, following a strike,
the Union executed a single 3-year contract with the more than 20 moving firms
whose employees it then represented. In 1958, after bargaining and after a strike
at each of the companies involved, the Union executed separate but identical 3-year
agreements with some 12 to 15 companies, including the 4 named as Respondents
in this proceeding. The 1958 agreements, although identical to each other, were
executed on different dates, as first one company and then another would reach
agreement with the Union on the terms eventually common to all. In 1961 the
number of negotiating employers was further reduced, but it continued to include,
inter cilia, the four here involved, who bargained as a group through a single repre-
sentative (Attorney Wiedemann), and who at that time (and without a strike) signed
separate but identical 3-year agreements with the Union due to expire February 29,
1964.
In late December 1963 the Union wrote each of the companies with whom it had
a contract, including the four named in this proceeding, stating that it desired to
make changes in the contract, enclosing a list of proposed changes, and requesting
that the Company suggest a meeting date. The four companies here involved again
agreed among themselves to bargain as a group, prepared a countrproposal, and
arranged with the Union for a meeting at the Union's offices on January 22, 1964.
'Except where otherwise noted, all dates herein refer to the year 1964.
BOULEVARD STORAGE & MOVING CO., INC., ETC. 549
B. The bargaining to an "impasse," and the March 15 wage cut
The January 22 meeting was devoted primarily to a discussion of the employers'
,complaint that their nonunion competitors in the local moving business were oper-
ating at much lower labor costs and presented a serious problem to the industry.2
They urged the Union to organize the unorganized, stating that in view of the
increase in nonunion companies, a wage increase could not be granted, and a wage
decrease would probably be advisable. The employers expressed the view that
their labor costs in local moving were so high that their local moving business "was
being subsidized by the rest of [their] business ...." Union President Lane replied
that cartage labor cost per revenue dollar was between 50 and 51 percent, and he
believed the labor costs of this group to be approximately the same. The employers
responded that they believed otherwise but would check into it further.
The next bargaining meeting was held at the union office on February 7. Either
at that meeting, or at the meeting of January 22, the employers presented their
counterproposal, which called, inter alia , for a 19-cent per hour reduction in wages,
as contrasted with the 50-cent increase proposed by the Union. At the February 7
meeting the employers advised the Union that the labor cost on local moving was 71
percent of the revenue dollar, a figure derived by dividing the charge to the customer
($4.50 per man-hour) into the labor cost ($2.64 per hour wage rate plus $.58 per
hour cost of fringe benefits). The employers further advised the Union at this meet-
ing that an industry publication showed that the average general overhead cost in
the industry was 29 6 percent of the revenue dollar. These figures, the employers
stated, established that they were making no profit out of the local moving aspect of
their business. They expressly stated that they were not expressing a view as to
the overall profit or loss of their operations.
According to the testimony of Henry Kucera, the Union's chief negotiator, he
asked the employers on February 7, as well as at subsequent meetings on February 19
and March 10, to let the Union examine the financial records of any one of the
companies "to show the financial plight of the company," and the employers' spokes-
man replied that they would not do this and the Union "would have to take their
word for it." Company witnesses denied that their spokesman ever resorted to the
phrase just quoted. As they remembered the matter, whenever Kucera asked to
see the books, the response was that all the employers were discussing were the costs
of local moving, that their overall financial position was not in issue, and that their
books would therefore shed no light on the issue. Company witnesses also did not
corroborate Kucera's claim that he mentioned looking at the books on the three
dates mentioned above, but agreed that he mentioned it at the February 7 meeting,
and one of their number testified to Kucera's bringing up the subject on "one or two
occasions." General Counsel called no witnesses to corroborate Kucera although
other union representatives had attended the bargaining sessions . Relying on that
circumstance as well as on the demeanor of the witnesses and what I regard as the
inherent probabilities, I find that Kucera at the February 7 meeting, and again at
one other session prior to March 15, made some reference to the Union's desire to
examine the companies' records, but that the response to those requests was couched
in terms of the books' not shedding light on the issues rather than in terms of "tak-
ing the employers' word for it."
The February 7 meeting was devoted to the problems of labor cost and the need
for organizing the other moving companies. The parties next met on February 19;
this and subsequent meetings through May 21 were held at the office of the Federal
Mediation and Conciliation Service. In these meetings the parties spent part of the
time in face-to-face negotiations and part of the time meeting separately with a
federal mediator. The opponents stated their respective positions to the mediator
,on February 19, the Union contending that wage cuts would not help them to organ-
ize the unorganized workers, and noting that the 3 largest companies (all but Walsh)
were engaged primarily in over-the-road hauling so that local moving competition
was not a serious factor.3 At a second meeting with the mediator on March 2 the
Union presented new demands, substantially reduced from those stated in their origi-
nal proposal, e.g., a wage increase of 15 cents, not 50 cents, an hour.
A critical session was held on March 10 First meeting face-to-face the parties
reiterated their conflicting positions as to the wage picture. The parties then met
separately with the mediator, who reported that they were far apart and probably
S The record indicates that there are over 70 moving companies in Milwaukee, that over
20 were unionized in 1953, and that that figure had shrunk to 7 by 1964.
3 The record indicates that Walsh derives 50 percent of its revenue from local moving,
and that Boulevard derives about 25 percent of its rei enue from that source
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not reach amicable agreement. The employers offered to reduce their pro-
jected wage cut from 19 cents to 15 cents an hour. This information, given to the
mediator, was relayed by him to the Union; the Union's copy of the original pro-
posal, introduced in evidence, contains a notation in ink of the rates proposed on
March 10 which is prefaced by the notation "thru Kurtz" (the mediator). The pro-
posal of a 15-cent cut was not acceptable to the Union, which continued to insist
on a wage increase. The employers, upon being so advised, caucused again and
determined to institute the 15-cent cut on March 15. The parties again met face-to-
face, and the employers' spokesman informed the Union that the wage cut would
take effect March 15, the following Sunday. The Union retorted that this was a
good means of forcing a strike, and the meeting ended. Wages of all employees
(including those not engaged in local moving operations) were cut 15 cents per hour
effective the following week.
C. Subsequent bargaining sessions; the Union's formal demand for
corporate records; the strike and its partial settlement
The parties met again at the mediator's office on April 7, a meeting at which the
employers presented a proposed new health insurance and welfare plan which the
Union said it would study. At this meeting union counsel, who had not attended
the previous bargaining sessions , asked the employers to let a union auditor exam-
ine their books including their sales earnings, costs, and whatever might have a
bearing on their position. This request was repeated in a letter dated April 8 from
Kucera to the employers' counsel. The reply, dated April 14, restated the employers'
position that with respect to local moving their labor cost under the recent contract
had been over 71 percent of the revenue dollar, that the national average general
overhead was 29.6 percent of the revenue dollar, that in their judgment any signifi-
cant increase in their rate to customers was out of the question because of the extent
of nonunion competition in the local moving industry, and that none of these mat-
ters required an audit of the companies' books for verification.
At the next meeting held April 23 the Union stated that it did not consider the
proposed insurance plan a satisfactory substitute for the plan existing under the
previous contract, and offered to supply a written analysis of its objections. Union,
counsel then repeated the demand for corporate records, particularly those pertain-
ing to sales , costs, and earnings . The employers raised a question of confidentiality
with respect to each other's records, and the Union indicated that it could work out
some means of taking each company individually and preserving the confidentiality of
the data.
Although the April 23 meeting ended with the mutual understanding that the
parties would meet again, the Union went on strike against all four companies on
May 14.4 On May 25 the parties met again and the employers offered to reinstate
the wage rate existing under the expired contract, but the Union continued to press,
for a wage increase. A few days later the Union reached a settlement with Irving
Kirsch Corporation, the terms including retroactive restoration of the 15-cent wage
cut, and a 20-cent increase spread over the next 3 years. Shortly thereafter, early in
July; the three remaining employers dissolved their agreement to act as a group, and
promptly thereafter two of them settled with the Union on the same terms accepted
by Kirsch. The remaining employer, United, is the employer against whom relief is
sought in this proceeding.
D. Concluding findings
In his brief, as in the complaint and throughout the proceeding, General Counsel
alleges two violations of the employers' bargaining obligation: a "unilateral" wage
change on March 15, and a refusal to produce corporate books and records to sub-
stantiate positions taken in bargaining For reasons indicated below, I sustain the
employers' positions on both counts.
1. The wage cut: General Counsel contends that when an employer proposes a
wage cut to a union, and thereafter effectuates a lesser wage cut never offered to the
union , his unilateral action is violative of his bargaining obligation, just as the uni-
lateral effectuation of an increase larger than that offered the union would violate
the Act. I am inclined to agree with General Counsel that unilateral action which
* The employees had authorized the strike at a meeting on May 3, when the employees
"were up in the air" about the wage cut, and when the union bargaining committee
reported its failure to obtain access to corporate records If either the wage reduction
or the refusal to produce the books is held an unfair labor practice, the strikers are
"unfair labor practice strikers" as the strike was caused or prolonged by an unfair labor
practice.
BOULEVARD STORAGE & MOVING CO., INC., ETC. 551
gives the employees more advantageous terms than those offered the union tends, at
least in theory, to undermine collective bargaining just as much when the "advan-
tage" is a lesser cut as when it is a bigger increase As applied in this case, however,
I cannot find that the action was "unlateral" in the sense of never being offered, for
as I read this record, the "offer" of a 15-cent, rather than a 19-cent, cut was made
to the Union and rejected by `it, before the employers announced that they would
institute it. To be sure, the "offer" of the 15-cent reduction, its rejection, and the
announcement that it would be instituted all occurred at the same bargaining ses-
sion, and followed each other in rapid order. On the other hand the Union's con-
tinued demand for a wage increase (eventually modified some weeks later to an
increase spread over 3 years) leaves no room for doubt that any longer considera-
tion of the acceptability of the 15-cent cut would have been pure window dressing.
Cases of this nature cannot be decided as if they were abstract mathematical propo-
sitions; the result here might well be different if the wage cut offered at the last
conference and immediately effectuated had differed more substantially from that
originally rejected by the Union
General Counsel also contends that no impasse had been reached at the time of
the change in wage rates. To be sure the parties had met only five times when the
wage cut was announced, and further meetings were contemplated. But the federal
mediator had advised the employers that "he felt the entire situation was hopeless,"
that they "were awfully far apart and probably couldn't arrive at any solution to our
problems," and that they had "reached a stalemate." In the light of his statements,
and in view of the gulf separating the parties with respect to wage rates ( one insist-
ing on increases and the other on decreases), I find that an impasse had been reached
at the March 10 meeting when the wage cut was announced.
Finally, General Counsel urges that the "impasse" was not the result of bona fide
collective bargaining, as in his view the companies were in default of their obliga-
tion to produce the data substantiating their position in the bargaining. This, of
course, leads us directly to the second prong of General Counsel's basic attack-the
alleged violation inherent in the companies' failure to produce such data. If this
position of General Counsel should be sustained, I should agree that the "impasse"
of March 10 did not warrant the companies' action in instituting a wage cut; the
"impasse" would have been occasioned, at least in part, by the unfair labor practice.
Industrial Union, of Marine and Shipbuilding Workers (Bethlehem Steel Co.) v.
N.L.R B., 320 F. 2d 615, 621 (C.A. 3). But, as shown below, I do not find that the
failure to produce corporate books and records prior to March 10 (or even there-
after) violated the statutory bargaining obligation.
2. Failure to produce data. The law is well settled that where an employer in the
course of collective bargaining pleads financial inability to grant a wage increase, his
statutory obligation to bargain in good faith embraces a requirement that he pro-
duce, at the union's request, the relevant books and records on which he relies for
his claim of inability. N.L.R.B. v. Truitt Mfg. Co, 351 U.S. 149. In Cincinnati
Cordage and Paper Company, 141 NLRB 72, 77, the Board sustained my view that
the principles of Truitt require that same result where an employer contends that
he could not grant a wage increase and "stay competitive." The same result would
follow in cases where the employer's position is that he is compelled to decrease
wages. But these general principles, although relevant here, are not dispositive of
this case, for each case in this area necessarily turns on its peculiar facts. See Truitt,
supra, at 153-154, and compare The Celotex Corporation, 146 NLRB 48, Tennes-
see Coal & Iron Division, United States Steel Corporation, 122 NLRB 1519, and
Pine Industrial Relations Committee, 118 NLRB 1055, afd. sub nom. International
Woodworkers of America, Local Unions 6-7, and 6-122, et al., 263 F. 2d 483
(C.A.D.C.).
In the instant case, the employers did not claim financial inability to grant a wage
increase, or even that they could not grant an increase and "stay competitive." What
they claimed was that their labor cost for local moving was too high a percentage of
the revenue for local moving The employers freely proffered the "data" upon which
this analysis rested-their billing rates and their wage costs. The latter amounted to
71 percent of the former, a figure the employers regarded as excessive. In addition
the employers mentioned an "overhead" cost of 29.6 percent of the revenue dollar.
This figure they admittedly took from an industry publication, and the factors in
their individual cases might well have varied from each other and from that national
norm. In essence , however, their position was that the labor cost for local moving
was so high as to render that aspect of their business unprofitable, and they believed
the pressure of nonunion competitors prevented an increase in the rate to customers.
Faced with these contentions , the union representative , Kucera, made occasional
desultory references to examination of company records "to bear out their conten-
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion that they were financially in trouble." This, of course, was not their contention,
and beyond these vague references to company records,5 the Union did not pursue
the matter until Kucera's letter of April 8.
In my judgment, the employers' failure to produce books and records was not a
factor contributing to the impasse in bargaining. The employers stated, and the
Union was aware of, the facts underlying the employers' claim that their local mov-
ing operations were not profitable and that nonunion competition rendered a price
increase inadvisable. This is not to say that the employers' position was funda-
mentally sound. It may well be that the high labor cost of local moving was not a
sound excuse for cutting wages, as the overall profitability of the business might well
warrant operating a necessary part of it at marginal conditions. But the Companies
claimed only that the labor costs for local moving were so excessive as to make that
operation unprofitable, and they produced the data on which they relied for that
narrow claim: It would be the merest quibble to state that their individual over-
heads might have varied somewhat from the claimed national average of 29.6 per-
cent, for producing such data, if it existed, would not basically have affected their
claim that the 71 percent labor cost was out-of-line, particularly in the light of
nonunion competition which they believed rendered inadvisable an attempt to raise
prices.
The counterarguments of General Counsel are of considerable weight. An
employer who, particularly in an era of rising labor and other costs, presses for and
institutes a wage cut may reasonably be expected to produce the data on which he
relies to justify his action, and the data should reflect the state of his entire business
and not merely of one integral department thereof. This would seem particularly
the case when his wage cut affects all employees, and not merely those in the mar-
ginal department. Also, when a union is asked to accept a wage cut, it is surely
reasonable to produce the data through which the union can determine whether to
resist or accept a cut, and if the latter, in what amount. But the short answer is that
the employers in this case claimed only that their local moving, considered sepa-
rately, was unprofitable. The Union could well argue that this fact did not warrant
a wage reduction, and that full analysis of company records would support the
Union's position. But the Union has no inherent right to such records. If, for
example, an employer grounds his refusal to give an increase on a sheer reluctance
to pay employees more money, the Union cannot compel him to produce his books
to support its contention that he can afford to pay more. So here, the companies'
position that because of local moving competition they wanted to reduce labor costs
may have been a non sequitur, in the sense that it was an insufficient reason for a
wage cut, but it did not entitle the Union to examine any general records of profita-
bility, except only those relating to local moving costs, and those the Companies
substantially disclosed.
The basic impression derived from this record is that both the Union and the
Companies were engaged from the outset in a bitter economic struggle which could
only eventuate, as it had repeatedly in the past, in a testing of economic strength
through a strike. The federal mediator obviously came to the same conclusion. In
the course of their struggle, each side sought to invoke the Board's aid; the Union
filed the charge in this proceeding (neither the original charge on March 24 nor the
amended charge of April 27 so much as mentioned a failure to give data), and the
Companies filed a charge on June 4, since dismissed, alleging that the Union had
violated Section 8(b)(3) by bargaining separately with one member of a multi-
employer unit. The statute, of course, is equally operative whether the parties are
far apart and headed toward a strike or are close together and trying to avoid con-
flict. But this rcord furnishes considerable support for the concluding statement in
Respondent's brief: "A showing of the books, quite obviously, was as far from being
a material matter in these negotiations as anything could possibly be." G
6Kucera testified that he was not sure that he named any records but that the dis-
cussion had centered around the Companies' costs and earnings, and he was " sure we
asked for the records that would establish their financial plight"
O Assuming, arguendo, that the Union's written request for data on April 8 and its
renewal of this request at the April 23 meeting stand on a stronger footing than Kucrea's
earlier forays in this area, the record establishes that the Companies and the Union were
in the process of working out some means of producing the records when the Union struck.
At this juncture the matter was abandoned, just as the Union abandoned its undertaking
to supply an analysis of its objections to the Companies' proposed insurance plan This
case, in short, does not turn on the events following the March 15 wage reduction but
on whether prior to the impasse that culminated in that action the Union had demanded,
and the Companies had refused, data to which the Union was entitled under the Truitt
Mfg Co , case, supra
KAMINSKI BROTHERS , INC. 553
CONCLUSION OF LAW
Respondents have engaged in no conduct violative of Section 8(a)(5) and (1) of
the Act.
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.
Local Union No . 542-A, -B, -C, International Union of Operating
Engineers , AFL-CIO [Kaminski Brothers, Inc.] and District 50,
United Mine Workers of America . Case No. 4-CP-69. May 12,
1965
DECISION AND ORDER
On a charge filed March 24,1964, by District 50, United Mine Work-
ers of America (referred to herein as District 50), the General Coun-
sel for the National Labor Relations Board by the Regional Director
for Region 4 issued a complaint and notice of hearing on May 11,
1964, against Local Union No. 542-A,-B,-C, International Union of
Operating Engineers, AFL-CIO, herein referred to as Respondent
or Local 542, alleging that Respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce within the meaning
of Section 8(b) (7) (C) of the National Labor Relations Act, as
amended. Copies of the complaint and notice of hearing were there-
after duly served upon the Respondent. The Respondent filed its
answer on May 26, 1964.
A hearing was held on June 17, 1964. Thereafter, on January 29,
1965, Respondent, District 50, and the General Counsel of the Board
entered into a stipulation in which the parties agreed that the formal
papers, the exhibits, and the transcript of testimony in the matter
before the United States District Court for the Middle District of
Pennsylvania, entitled "Bernard Samoff, Regional Director for the
Fourth Region of the National Labor Relations Board, Petitioner, and
Local Union No.>542-A,-B,-C, International Union. of Operating'En-
gineers, AFL-CIO, Respondent," Civil No. 8460, together with briefs
filed with Trial Examiner, shall constitute the entire record in the
case. The parties waived the making of findings of fact and conclu-
sions of law by a Trial Examiner and the issuance of a Trial Exam-
iner's Decision and submitted the case to the Board for decision.
By an order dated February 4, 1965, the Board ordered that the
stipulation be approved and made a part of the record herein, and fur-
ther ordered the proceeding transferred to and continued before the
Board for the purpose of making findings of fact and conclusions of
law, and for the issuance of a Decision and Order.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
152 NLRB No. 54.