Braswell Motor Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1963

141 N.L.R.B. 1154 (N.L.R.B. 1963)

1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our employees in regard to their hire or tenure of employment , or any term or
condition of employment , except to the extent permitted by the proviso to
Section 8 (a) (3) of the Act.
WE WILL NOT coercively or unlawfully interrogate our employees regarding
their union membership , activities , or desires.
WE WILL NOT threaten our employees with discharge or other economic sanc-
tions to discourage their union affiliation or adherence.
WE WILL NOT in any other like or related manner interfere with , restrain, or
coerce our employees in the exercise of their right to self-organization , to form
labor organizations , to join or assist Local 299, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , Inc., or any other
labor organization , to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and to refrain from any or all such
activities.
WE WILL offer to Sidney Schwartz immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority or
other rights and privileges previously enjoyed , and make him whole for any loss
of pay suffered as a result of the discrimination against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of Local 299 , International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , Inc., or any other labor organization.
NEW YORK CENTRAL TRANSPORT COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
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, 501 Book
Building, 1249 Washington Boulevard , Detroit, Michigan , Telephone No. Woodward
3-9330, if they have any question concerning this notice or compliance with its
provisions.
Braswell Motor Freight Lines, Inc.; Braswell Freight Lines,
Inc.; and J. V. Braswell and Teamsters Local Unions 745, 47,
886, 523, 270, 5, 568, 667, and 891, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case No. 16-CA-1648. April 9, 1963
DECISION AND ORDER
On January 21, 1963, Trial Examiner George J. Bott issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondents had not engaged in the alleged unfair labor practices
and recommending that the complaint herein be dismissed in its en-
tirety, as set forth in the attached Intermediate Report. Thereafter,
the Respondents, the General Counsel, and the Charging Parties filed
exceptions to the Intermediate Report and briefs in support of their
exceptions.
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 [Chairman McCulloch and Members Rodgers and Fanning].
141 NLRB No. 105.
BRASWELL MOTOR FREIGHT LINES, INC., ETC . 1155
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
I While he agrees that Respondents Braswell Motor Freight and Braswell Freight Lines
may constitute a single employer, Member Rodgers would net adopt the Trial Examiner's
finding that these two corporate Respondents and the Individual Respondent, J. V.
Braswell, constitute a single employer. Further, he finds it unnecessary to adopt the
finding that under some circumstances, the personal books of J. V. Braswell and the books
of Braswell Motor Freight would have to be made available for union Inspection.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge filed by the above-named Union on April 28,
1962, and May 28, 1962, against Braswell Motor Freight Lines, Inc.; Braswell Freight
Lines, Inc.; and J. V. Braswell, an individual, hereinafter sometimes referred to jointly
as Respondents, the General Counsel of the National Labor Relations Board issued a
complaint and notice of hearing dated June 26, 1962, alleging that Respondents had
engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the
National Labor Relations Act, herein called the Act. Respondents filed separate
answers denying the commission of any unfair labor practices.' Pursuant to notice
a hearing was held before Trial Examiner George J. Bott at Fort Worth, Texas, on
August 28, 29, and 30, and September 18, 19, and 20, 1962. All parties were rep-
resented at the hearing. Subsequent to the hearing the parties filed briefs which I have
considered.
Upon the entire record in the case nad from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT MOTOR FREIGHT LINES, INC., AND RESPONDENT
BRASWELL FREIGHT LINES, INC.
Respondent Motor Freight Lines, Inc., herein sometimes referred to as Respondent
Motor Freight, is, and has been at all times material herein, a corporation organized
under, and existing by virtue of, the laws of the State of Texas, maintaining its prin-
cipal office and place of business at 201 Raynolds Street, El Paso, Texas, where it is
engaged in the transportation of commodities in interstate and intrastate commerce.
Respondent Braswell Freight Lines, Inc., herein sometimes referred to as Respond-
ent Freight Lines, is, and has been at all times material herein, a Delaware corpora-
tion, with its principal office and place of business located at 201 Raynolds Street,
El Paso, Texas, where it is engaged in the transportation of commodities in inter-
state and intrastate commerce.
During the 12-month period immediately prior to the issuance of the complaint,
which period is representative of all times material herein, Respondent Motor Freight
and Respondent Freight Lines, separately, in the course and conduct of their business
operations, picked up, transported, and delivered commodities, services for which
were each valued in excess of $50,000, to their respective freight terminals in Texas
from States of the United States other than the State of Texas. During this same
period, Respondent Motor Freight and Respondent Freight Lines separately, in the
course and conduct of their respective operations picked up, transported, and delivered
I Respondent J. V. Braswell , an individual, filed a special appearance and moved to dis-
miss on the grounds of misjoinder of parties . This motion was denied prior to the hearing
by the Trial Examiner originally scheduled to hear the case.
708-006-64-vol. 141-74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commodities , the services for which were each valued in excess of $50,000, and said
commodities were directly transported from said terminals within the State of Texas
to freight terminals located in States of the United States other than the State of Texas.
I find that Respondent Motor Freight and Respondent Freight Lines are engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Teamsters Local Unions, 745, 47, 886, 523, 270, 5, 568, 667, and 891, affiliated with
International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers
of America, herein referred to as the Union, are labor organizations within the mean-
ing of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The setting and issues
The Union has represented four separate units of Respondent Freight Lines' em-
ployees for many years. Freight Lines is a wholly owned subsidiary of Respondent
Motor Freight which is in turn owned by Respondent J. V. Braswell. During the
course of bargaining for a new contract with Freight Lines, which commenced in
early February 1961, Freight Lines took the position that it could not afford to pay
the wages demanded by the Union. The Union immediately demanded to see the
books, not only of Respondent Freight Lines, but also of Respondent Motor Freight
and J. V. Braswell. This demand was refused, but Respondents offered complete
access to the books of the subsidiary. The complaint alleges that the refusal of all
Respondents to make their records available to the Union was a refusal to bargain in
good faith on the ground, as alleged in the complaint, that Respondent Freight Lines,
Respondent Motor Freight and Respondent J. V. Braswell together constitute a "single
integrated business enterprise" and a single employer within the meaning of the Act.
Although the complaint alleges certain additional acts of the Respondents, such
as the abolition of premium pay, and the unilateral institution of an incentive system,
for example, as bargaining in bad faith causing or prolonging a strike, which took
place on April 23, 1962, the ". . . main thrust of the complaint . . . ," as stated
by General Counsel in his opening statement, is the refusal to disclose the books of
the parent company and J. V. Braswell.
B. The relationship of the Respondents
Respondent J. V. Braswell, an individual, owns 99.89 percent of the stcok of Bras-
well Motor Freight and his wife owns one-half the remaining shares. Braswell
Motor Freight owns all of Braswell Freight Lines and J. V. Braswell is president of
both. The companies have common officers and directors who formulate and control
the labor policy for both. J. V. Braswell is the final authority for labor matters for
both companies and acts as general manager for Braswell Freight as well as a division
of Braswell Motor.
Braswell Motor Freight is a common carrier operating two divisions. Its Western
Division operates from Los Angeles eastward to El Paso, and is under a labor contract
with the Western Conference of Teamsters with which it bargains through the
California Trucking Association. The Eastern Division operates from El Paso east-
ward to Dallas and Houston, and is unorganized. Motor Freight maintains its gen-
eral offices in El Paso.
Braswell Motor Freight acquired control of the D. C. Hall Company, another
common carrier, on July 1, 1957. Sometime after the purchase, Braswell Motor
Freight changed the name of the acquired company to Braswell Freight Lines, Inc.,
which is a Respondent here.
Respondent Braswell Freight Lines (formerly D. C. Hall), operates from Fort
Worth north and east to Oklahoma City and Tulsa, Oklahoma; Memphis, Tennessee;
Jackson, Mississippi; and New Orleans, Louisiana. The general offices of Freight
Lines are also in El Paso, Texas, where it shares a general office with Braswell Motor
Freight, the parent company.
Not only do the parent and subsidiary have common officers and directors and
share office space at a central place, but other overhead items are shared centrally.
All office employees are shared commonly in El Paso, and the expenses are allocated
between the two companies by the common comptroller of the Respondents, accord-
ing to the testimony of J. V. Braswell. A common internal teletype service is
operated from El Paso servicing all terminals of both companies, and other common
BRASWELL MOTOR FREIGHT LINES, INC., ETC . 1157
things such as bookkeeping , insurance accounts , insurance claims , advertising, and
the like, are handled there and the expenses prorated.
The companies have a common road superintendent and a common traffic manager
who issue single bulletins and instructions to employees of both lines. The com-
panies use common stationery , even to indicate disciplinary action , and common
notices regarding improper operation of equipment.
As indicated, the two companies use common advertising and share the expense.
In their advertising the Respondent companies hold themselves out to the public
as a single operative entity from Los Angeles, California, to Jackson, Mississippi, and
Memphis, Tennessee. An advertising brochure in evidence displays a map of op-
erations from California to Mississippi, and lists telephone numbers of terminals of
both companies . The document states that "The operations of both companies are
very closely coordinated to the extent that the overall effect is that of a single opera-
tion ." It also says that Braswell is ". . . the only common carrier with direct service
of general commodities under one management between Los Angeles . . . and Jack-
son, Mississippi."
H. J. Jones, secretary and member of the board of both companies, testified about
the relationship between the corporations. Jones described Braswell Motor as a
carrier performing a long-haul operation, whereas Braswell Freight is a short-haul
carrier operating in a lower tariff-rated territory, and under a lower rate structure.
The short-haul operation requires more steps in transit for loading and unloading,
and requires a greater number of employees and terminals to provide for a greater
amount of loading, unloading, and routing. This consequently, results in extra cost
in comparison with long-haul operations and a greater cost in handling of freight
and the maintenance of terminals.
Jones pointed out that the Companies have common service points at Dallas and
Fort Worth, Texas, only. At these points, however, the companies maintain separate
terminals and each Company has its own pickup and delivery fleet. Each Company
has its own terminal manager and there are no common employees at these two
points. There is no interchange of employees, and neither Company maintains the
equipment of the other. He added, however, that there are three salesmen for each
Company in Dallas but that they solicit business for both.
According to Jones, the interchange of equipment between the two companies
is on the same basis as an interchange of equipment with other common carriers,
and the same is true with respect to the interchange of freight. The proration of
freight revenue on interlined traffic between the two companies is the same as the
proration between the two and other companies. Freight revenues on interchange
freight is prorated on the basis of a nationally and regionally recognized formula.
He agreed, however, that each Company preferred the other on interchange if the
freight were unrouted by the shipper. The scheduling on interchange freight is done
by the chief dispatcher in El Paso.
Despite Secretary Jones' testimony, which I credit as far as it goes, there is other
evidence in the record which gives a different view of the Respondent companies'
own understanding of the closeness of their relationship, and which throws a different
light on some of Jones' testimony. In an Interstate Commerce Commission hearing
in November 1960, in which Braswell Freight sought a route extension, J. V. Braswell
testified in support of the application. He testified that the two companies operate
together as a system of carriers and that at some future date the companies intend
to merge but had not done so because Braswell Motor Freight, in the Eastern Division,
is unorganized and Braswell Freight Lines is and, therefore, seniority problems "on
the dock" prevent the merger. At the hearing, Mr. Ward Bailey, attorney for
Braswell Freight, told the Commission that the only reason Braswell Motor and
Braswell Freight have separate terminals in Fort Worth and Dallas is because of the
union contracts with various locals of the Teamsters. He pointed out that the
operations of those terminals were nevertheless coordinated.
In the I.C.C. hearing, M. L. Johnson, traffic manager for the two companies, em-
phasized the unitary nature of the operations. Frequently he described "the single
system service" offered by the companies. He testified that special arrangements
are made for interlining traffic between the two companies which is not done for
other carriers. Johnson said that ". . . the service and schedules of both companies
are coordinated to offer a single line or single system service to the shipping and
receiving public." He pointed to the central dispatch system in El Paso and the
teletype system as implementations of this policy.
Johnson decsribed the salesmen at terminals points as solicitors for the "system."
With respect to dispatching, the movement of traffic, schedules, claims department,
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tracing service, solicitation practices, improvement of service, and the like, such are
treated as part of the Braswell system, controlled as a single operation, and presented
to the public as such, according to Johnson. Indeed, he testified that ". . . there is
no difference between the two Companies, it is all one company. When I deal with
a terminal of Braswell Freight Lines, I am dealing with an employee of the Braswell
system." Johnson also told the Commission that the companies have "kind of merged
into one." He added that the ". . . overall effect is that the operations are that
of a single company because of being so highly coordinated."
Although an accountant for Respondents testified that separate books and records
are kept by the corporations, and that there is no commingling in the ordinary sense,
other evidence, in this instance also, shows a closer relationship financially than would
immediately appear from the accountant's testimony. In the I.C.C. hearing, J. V.
Braswell testified that Motor Freight would back up Braswell Freight for any expenses,
and that if the subsidiary continued to lose money the parent would feed more in.
It also appears that the companies filed a joint tax return. At the I.C.C. hearing,
V. E. Hensley comptroller of both companies, testified that Braswell Motor furnishes
Braswell Freight ". . . all the necessary capital as required. Mr. J. V. Braswell
owns the controlling interest in both companies, and we consider it a joint operation,
other than the filing of the various state reports and reports to the Commission."
At the hearing before the I.C.C., the applicant (the system) presented a consolidated
balance sheet and consolidated income statement.
There was other evidence in the instant hearing and before the Interstate Commerce
Commission about other intercompany financial transactions which will be referred
to again in the discussion of the Union's right to the books of the parent and J. V.
Braswell. However, enough has been set out for a determination of the "singleness"
of the Respondents. One final note, however. Johnson testified at the Commission
hearing that he might recommend certain important actions but these matters need
be "discussed and decided by Mr. Braswell, who owns the Braswell System."
Where necessary to safeguard statutory rights and fully effectuate the purposes of
the Act, the Board may view separate legal entities as a single employing enterprise.
Where there is common and interlocking ownership, integration of operations, and
common authority in labor matters, it is well settled that a finding that the entities
are a single or joint employer for the purposes of the Act is justified. Whether or
not such a finding should be made will depend on the underlying facts in each case
and the policy underlying the applicable legal rule. In my opinion, the facts regard-
ing the relationship of the Respondents set out above, particularly in the light of the
basic issue involved in this case, require a finding that Respondent Motor Freight,
Respondent Freight Lines and Respondent J. V. Braswell constitute a single em-
ployer. They jointly are one economic enterprise and are the "employing industry"
which the Act seeks to regulate? The facts need not be repeated but show clearly
not only the essential ownership and control, but a degree of integration which, even
in Respondents' business opinion as set forth in the I.C.C. hearings, make the Re-
spondents in fact a "single system" and a "single enterprise." Not only do the basic
economic facts but the policy to be applied as well, signal this result. The main
issue is the legal availability of the enterprises' books. A plea of poverty in bargain-
ing needs truthful support for perhaps only in that manner may a union be convinced
of the reasonableness of Respondents' position, and a strike obviated by a reduction
or withdrawal of demands. In this way, not only are the employees' right to bargain
intelligently given full scope, but the public interest is preserved by the possible
elimination of a labor dispute. This result is not only desirable but practicable in
implementation. J. V. Braswell controls the books of all, and the decision is his to
2 N.L R B. v. Jones Sausage Co. & James Abattoir Co , 257 F. 2d 878, 880 (C.A. 4) ;
A. M. Andrews Co of Oregon, etc. v. N.L.R B., 236 F. 2d 44, 45 (CA. 9) ; N.L.R.B. v.
Somerset Classics, Inc., etc, 193 F. 2d 613, 614-615 (C.A 2) ; N.L.R B v. Kiddie Kover
Manufacturing Company, 105 F. 2d 179 (C.A. 6). Cf. NL.R.B. v. Deena Artware, Inc.,
361 U.S. 398, 402, 404; Bowater Steamship Co. v. Patterson, 303 F. 2d 369, 372-373
(C.A. 2), where the court treated a parent and a subsidiary as one for the purposes of
the Norris-LaGuardia Act and observed: "Whether a subsidiary corporation is to be con-
sidered a separate entity 'cannot be asked, or answered in vacuo' . . ; the issues in
each case must be resolved in the light of the policy underlying the applicable legal rule,
whether of statute or of common law . . . . As the Supreme Court has repeatedly taught,
the policy behind the Norris-LaGuardia Act was a strong one ; we cannot think Congress
would have meant this to be defeated by the fragmentation of an integrated business into
a congeries of corporate entities, however much these might properly be respected for
other purposes."
BRASWELL MOTOR FREIGHT LINES, INC., ETC . 1159
make. Upon proper demand , and in proper circumstances , I find that the records
of J. V. Braswell and the parent Braswell Motor Freight are available as a matter of
law on a plea of poverty by the subsidiary.
C. The refusal to bargain collectively with the Union
1. The appropriate units
When Respondents acquired D. C. Hall Company in 1957, the employees of that
company, in the four units alleged as appropriate in the complaint , were covered by
a labor agreement with the Teamsters Union . The record is not clear about whether
the employees in each unit involved ( line drivers , city pickup and delivery drivers,
garage employees , and clerical employees ) were organized on a terminal or system-
wide basis . The record is clear, however, that for a long period of time, negotiations
for the employees have been on a systemwide basis. Thus , since the 1940's negotia-
tions for the line drivers (sometimes called over-the-road drivers ) were on a system-
wide basis , and city drivers bargaining was systemwide since 1952 . Garage em-
ployees negotiations have been systemwide since the early fifties , as were the office
clerical negotiations.
Since Respondents acquired D. C. Hall , the Union has been continuously recog-
nized as the bargaining agency in the four separate units alleged as appropriate in the
complaint , except for one brief period in late 1960 . At that time , Respondents ques-
tioned the Union 's majority status and filed petitions for elections with the Board,
but these were withdrawn in January 1961 , and recognition and bargaining with the
Union has continued since that time in the alleged appropriate units. These units
are also traditional and customary in the industry.
The Respondents stipulated that the unit of the over -the-road drivers as alleged is
appropriate , but took no position about the other three units . I find on the basis
of the record, particularly the long history of collective bargaining , that the bargain-
ing units set forth in the complaint are separate appropriate units for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act. Those units
are as follows:
('a) All over-the-road drivers , chauffeurs and driver helpers of Respondent
Freight Lines , excluding all other employees , all local dock workers and city
pickup and delivery employees , office clericals , guards, technical employees and
supervisors as defined by the Act.
(b) All mechanics and service employees of Respondent Freight Lines at its
New Orleans , Louisiana ; Shreveport , Louisiana ; Dallas, Texas ; and Jackson,
Mississippi , terminals including mechanic helpers, parts and time men, wash-
grease-and -service employees , welders, body men, painters , letterers, stripers,
tire vulcanizers and electricians ; but excluding all over-the -road and local drivers,
dock employees , office clericals , guards, technical employees , and supervisors
as defined by the Act.
(c) All office clerks of Respondent Freight Lines at Monroe , Louisiana;
Shreveport , Louisiana ; Dallas, Texas ; and New Orleans, Louisiana terminals
including rate clerks , cashiers , assistant cashiers , inner line and/or division
clerks, O.S. & D. clerks , stenographers , billing clerks , manifest clerks, filing
clerks, abstract clerks, PBX operators , posting clerks and mail clerks , but ex-
cluding all other employees , guards, technical employees and supervisors as
defined in the Act.
(d) All dock employees of Respondent Freight Lines at Dallas, Texas; Fort
Worth , Texas; Oklahoma City, Oklahoma; Tulsa, Oklahoma; Shreveport, La.;
New Orleans , La.; Monroe , La.; Alexandria , La.; Baton Rouge , La.; Jackson,
Mississippi , and Memphis , Tennessee terminals , including all local drivers,
chauffeurs , drivers-helpers , checkers , fork-lift operators , dockmen and helpers;
but excluding all other employees , over-the-road drivers , mechanics , service em-
ployees, office clericals, guards , technical employees , and supervisors as defined
by the Act.
2. The Union's majority status
Respondents would not stipulate majority status but put the Union to its proof.
I find on the basis of the uncontradicted testimony of the various union officials from
the Locals involved , who testified with their books and records before them , that the
Union represents a majority of employees in the units found appropriate and did so
in April 1962 , when the strike was called. The basic data is set forth in the following
chart:
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Road (b) Mechanics
Local Place
Em- Union Em- Union
ployed ployed
568 Shreveport, La----------------------------------------- 44 35 2 1
886 Oklahoma City, Okla---------------------------------- 1 1 ---------- ----------
270 New Orleans, La--------------------------------------- ---------- ---------- 2 2
5 Baton Rouge, La--------------------------------------- ---------- ---------- ---------- ----------
523 Tulsa, Okla-------------------------------------------- ---------- ---------- ---------- ----------
47 Fort Worth, Tex--------------------------------------- 1 1 ---------- ----------
891 Jackson, Miss------------------------------------------ 13 or 14 12 1 1
667 Memphis, Tenn---------------------------------------- 5 5 ---------- ----------
745 Dallas, Tex--------------------------------------------- 2 or 3 2 or 3 1 1
Total--------------------------------------------- 66 or 68 56 or 57 6 5
(c) Office Employees (d) City
Local Place
Em- Union Em- Union
ployed ployed
668 Shreveport, La----------------------------------------- 4 2 21 21
886 Oklahoma City, Okla---------------------------------- ---------- ---------- 8 8
270 New Orleans, La--------------------------------------- 5 4 27 27
5 Baton Rouge, La--------------------------------------- ---------- ---------- 6 6
523 Tulsa, Okla-------------------------------------------- ---------- ---------- 5 4
47 Fort Worth, Tex--------------------------------------- ---------- ---------- 8 8
891 Jackson, Miss------------------------------------------ ---------- ---------- 9 9
667 Memphis, Tenn---------------------------------------- ---------- ---------- 20 20
745 Dallas, Tex--------------------------------------------- 5 5 26 26
Total--------------------------------------------- 14 11 130 129
3. The refusal to show J. V. Braswell's or Braswell Motor Freight's
books to the Union
Braswell Freight's predecessor, D. C. Hall Company, was a member of the South-
west Operators Association, a multiemployer bargaining agent. In 1958, the Asso-
ciation negotiated and executed a new contract with the Teamsters on behalf of
its members, including Braswell Freight. This contract was to expire on January 31,
1961.
Sometime in the summer of 1960, Braswell Freight withdrew from the Southwest
Operators Association and, as set forth earlier, filed election petitions with the Board
questioning the Union's majority. After the petitions were withdrawn, Braswelt
Freight commenced bargaining with the Union for a new agreement, and the nego-
tiations continued from February 1, 1961, to the time of the hearing in this case
in September 1962.
Early in the bargaining the Union presented to Braswell Freight, as its basic
demands, the contract recently negotiated between the Southern Conference of
Teamsters and the employer association from which Respondent Braswell Freight
had withdrawn. Respondent Braswell Freight countered with a proposal, on
February 10, 1961, in which it offered to continue the old wage rates without any
increases negotiated with other employers, and asked other economic relief, such
as the discontinuance of overtime for certain classifications of employees. It was
Respondent Braswell Freight's position as early as its first counterproposal, that it
had been consistently losing money in its operations and was unable to pay the wages
requested by the Union. The parties continued to meet in February, March, and
April, 1961,3 and Braswell Freight continued to resist the Union's wage demands,
consistently taking the position that it could not afford to meet them.
8 There appears to have been no formal bargaining between the parties between April 21,
1961, and November 1961, but there is no suggestion by anyone of impropriety in this.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 1161
Soon after Braswell Freight entered its plea of poverty in the bargaining, the union
negotiators demanded to see the books of Braswell Freight, the books of the parent,
Braswell Motor, and the personal books of J. V. Braswell. Attorney Schoolfield,
who represented Braswell Freight in the negotiations, recalled that the request was
made as early as March 3, 1961, and Mr. Ralph Dixon, who represented the Union,
stated that the request had been continuously made since February 1961. In any
case, all parties agree that the Union, in response to Respondent Braswell Freight's
assertion of inability to pay, has insisted and continues to insist that the books of
all Respondents be made available for inspection.
In a bargaining session in March 1961, after the Union had again requested access
to the books of all Respondents, Schoolfield told the Union that he was trying to
negotiate a contract for Braswell Freight Lines and not for any other company. He
refused access to the books or records of Braswell Motor, or J. V. Braswell, but
told the Union that it could have complete access to the books of Braswell Freight
at any time. The Union did not accept this offer. Again, in a meeting on April 21,
1961, a lengthy discussion took place about inability to pay, and the Union repeated
its request for the records of all Respondents' Schoolfield stated that he would
reconsider the request and advise the Union.
On April 25, 1961, Attorney Schoolfield directed a letter to the Union's counsel
reiterating Respondents' position about the books. He referred to Braswell Freight's
claim of inability to pay higher wages and stated that, "This claim of inability to
pay the higher wages under the parent profit structure of the company is made
in behalf of Braswell Freight Lines, Inc., a Delaware corporation, and that corpora-
tion only." He recalled the Union's demand for the books of the three Respondents
so that union counsel could assure himself and his client that the claim was justified,
and stated that the ". . . books and records and balance sheets of Braswell Freight
Lines, Inc." had previously been offered and the others refused to the Union.
In his letter Schoolfield stated that, if it were legally decided that the Respondents
were one for collective -bargaining purposes , he wanted to make it clear that the
three Respondents did not claim inability to pay wanted wages on behalf of Braswell
Motor Freight Lines, Inc., or J. V. Braswell personally. He advised that the parent
corporation was ". . . a profitable operation and a healthy corporation." School-
field then offered to make available the profit and loss statements of both companies,
which were on record at the Interstate Commerce Commission office in Fort Worth,
Texas, and the books and records of Braswell Freight, at the Union's convenience, in
El Paso.
The Union never availed itself of Schoolfield's offer to view the entire records
of Braswell Freight, although the offer has remained open to date, but has instead
continued to demand the books of all. It is the Union's and the General Counsel's
position that, not only are the three Respondents one employer who must jointly,
therefore, produce their records, but that it is impossible by an examination of the
books of the subsidiary alone to determine the honesty and reliability of the plea
of inability to pay. On this last point there was testimony by certified public ac-
countants.
William S. Skiles, a certified public accountant, was employed by the Union to
review the financial reports made to the Interstate Commerce Commission by Bras-
well Motor and Braswell Freight, which he did. He reported orally to his client, in
May 1961, that, since a parent and subsidiary were involved, it would be difficult to
give a definite opinion about the operation of one company without seeing the books
of both. This he attributed to the fact of possible intercompany transactions "... that
would have to be looked into more closely in order to determine whether there was
an equitable allocation of various items as between the two companies." He listed
certain examples of intercompany transactions, such as rents on common equipment,
officer salaries, advertising, common offices, and the like. His examination of the
I.C.C. reports of the two companies indicated to him that such intercompany trans-
actions existed in the two companies. He concluded, and reported to his client,
that the original records of both companies would need be available to determine
the fairness of allocations and ultimate ability to pay wages. He admitted, how-
ever, that an examination of Braswell Freight books would show prorations.
The testimony of Daniel Conley, a certified public accountant, called by the Re-
spondents, is not basically in conflict with Skiles', but I thought he testified more
exactly and clearly. Conley's firm are auditors for both Braswell Freight and Bras-
well Motor. He testified that the corporations keep separate books and records but
that there exist certain intercompany accounts. According to him, the records of
the companies are complete, and in determining the ability of the subsidiary to pay
a wage increase, it would not be necessary to examine the books of the parent except
in the cases of certain records involving intercompany accounts. Even in these in-
stances there is no need for an examination of all records of the parent, but only of
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those that are common to the intercompany transactions . Conley gave specific ex-
amples of interrelated or intercompany accounts in the Respondent companies, and
described how they are handled and recorded . The companies have common offices
in El Paso and share the expenses on a pro rata basis. The books of the subsidiary
will show the proration . In the case of the common teletype service , the parent is
billed for the total cost and issues a check for the amount . A journal entry, however,
in the books of the subsidiary will show its reimbursement of the parent for its share
of the service . There are other allocations , such as with common officials and joint
advertising , but the journals of the subsidiary will show its allocation and the basic
records of the parent will show the invoices and checks in payment . Conley said
that , from an accounting point of view , it would not be necessary to see payrolls or
any books of original entry of the parent company for accounts which were not al-
located, in auditing the subsidiary . With respect to the common accounts , each com-
pany has corresponding journal entries and these show the proration and are easily
tieable.
Conley testified that basically the reasonableness of prorations or allocations be-
tween parent and subsidiary is a management decision , but that there are certain
general guides, such as total volume , or overall expenses , which are commonly ac-
cepted and indicate reasonableness to an auditor. Where there is such a thing as a
common department , for example , an exact determination of reasonableness would,
however, require a detailed management analysis of many facts.
General Counsel's and the Union 's first position and argument that it is settled law
that it is a violation for an employer to refuse to produce its financial records after
pleading poverty, and that since all Respondents are "the employer" and have re-
fused to produce , the violation is automatic , is too pat . It would be no less se-
mantical, in my view, to argue that, if the Respondents are one, then there is no
plea of poverty, for Attorney Schoolfield told the Union that J. V. Braswell and
Braswell Motor Freight were not pleading inability to pay but rather that Braswell
Motor Freight, which is wholly owned by J. V. Braswell, is a profitable operation.
The Union has known for a number of years that the companies are parent and
subsidiary and that J. V. Braswell owns them. They have also been aware, at least
since the I.C.C. hearings in November 1960, that certain intercompany accounts
exist.4 Since J. V. Braswell and the parent admit financial soundness , it is not im-
mediately clear what value the books of both would be to the Union under its and
General Counsel 's theory that the subsidiary is only an operating department of the
"system." However, it is the second argument of General Counsel and the Union
that one cannot clearly tell from an audit of the books of the subsidiary alone whether
the subsidiary is unable to pay that has led me to conclude that the books of J. V.
Braswell and the parent are not legally out of bounds merely because they are sep-
arate entities at common law. On the other hand , I do not think that, because they
are a "single enterprise" which have common accounts, or prorate expenses, the
Union was automatically entitled to all of the records of J. V. Braswell and the
parent company upon the subsidiary 's claim of impoverishment.
The General Counsel and the Union point to various intercompany transactions,
such as the lease of the Memphis terminal , the lease and subsequent sale of trailers,
and other items, and the Union suggests in its brief that, "The essence of the problem
is whether Braswell Freight was getting a square bargain in dealing with Braswell
Motor," and that only an inspection of the books of both corporations would fairly
reveal this . It seems to me , however, that there are two principal defects in this
position . In the first place, never in the period from the beginning of bargaining in
February 1961 , to the hearing in this case , during which the Union continuously de-
manded the books of all Respondents , and was consistently refused, did the Union, as
a foundation for its demand for a look at the books , suggest to Respondents that
funds were being improperly siphoned from the subsidiary to the parent, or that the
subsidiary was being otherwise "milked" by the parent, as hypothesized in the brief.
In the second place, the Union made no effort to examine the books of the subsidiary
which were offered it in order to check the intercompany transactions or allocations
in the subsidiary's records, which it had known about for so long, so that it could
determine whether there actually was any evidence of "milking." If the Union
had, and if it then , with some basis in reason , demanded further investigation of the
common accounts, or other areas of possible exploitation , to the extent of looking at
the original records in the parent , and was refused , I would find strong evidence of a
violation. In such circumstances , reasonable cooperation with the Union could
d In a civil action, in April 1961, in the United States District Court for the Eastern
District of Texas filed by Southern Conference of Teamsters against the two corporations,
the Union examined company officials about intercompany accounts and financial control.
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 1163
convince it that its demands needed adjustment, if the areas of suspicion actually
showed fair or reasonable dealings between the corporations. At the least, disclosure
might establish Respondents' good faith in the Union's eyes and help avert a strike.
However, Respondents' good faith cannot be fairly assessed for the Union did not
properly frame the issue or otherwise lay a foundation by a preliminary search of the
subsidiary's books. And, as I read the cases, it is a question of good faith in every
case that is in issue, for there is no automatic requirement of any particular evidence
upon a plea of poverty. In Truitt Mfg. Co., 351 U.S. 149, the Court pointed out
that when inability to pay was raised in bargaining the failure to substantiate such
a claim would justify a finding that the employer's claim was not made in good
faith. The Court pointed out that an employer need not automatically produce all
his books and records but that each case would be determined on its own facts. The
Court said:
Good faith bargaining necessarily requires that claims made by either bar-
gainer should be honest claims. This is true about an asserted inability to pay
an increase in wages. If such an argument is important enough to present in
the give and take of bargaining, it is important enough to require some sort of
proof of its accuracy. And it would certainly not be farfetched for a trier of
fact to reach the conclusion that bargaining lacks good faith when an employer
mechanically repeats a claim of inability to pay without making the slightest
effort to substantiate the claim.
Where the Union has made no effort to examine the extensive data offered it, and
has not properly put the employer on notice that it suspects the employer's records or
accounting techniques, I cannot find bad faith in the refusal of a parent corporation, or
the individual owner of both, to comply with the Union's blanket request for all
books and financial records of the individual owner and the parent company. I
find that Respondents did not violate Section 8(a)(5) of the Act by not acceding to
the Union's demand for records, in the circumstances of this case.
4. The alleged unilateral abolishment of premium pay
From the beginning of negotiations, Respondent Motor Freight insisted that it was
unable to meet the Union's wage demands and asked for other economic relief.
In the Company's first proposal of February 10, 1961, for example, it offered to con-
tinue the old wage rates, and asked that certain employees be paid on a straight time
basis for hours in excess of 40.
On April 11, 1961, a year before the alleged unilateral abolishment of overtime pay,
Respondents' attorney sent a letter to Dixon, the Union's chief negotiator, and asked
for a bargaining session to discuss what he called "two very important subjects." One
of the subjects was the abolishment of overtime pay. The parties held a meeting on
April 21, 1961, as requested by Respondent, and the Company's proposal to abolish
premium pay was discussed. The Union opposed the proposal, and to the Company's
claim of inability to continue the premium payments, again countered with a demand
for inspection of the books of the parent company and J. V. Braswell.
On March 5, 1962, Schoolfield, Respondents' counsel, sent a letter to Dixon in which
he told Dixon that Braswell Freight Lines proposed to discontinue the payment of
overtime as of March 19. He reminded Dixon that the parties had ". . . repeatedly
discussed this problem in bargaining sessions and made this proposal as early as
April 11, 1961." Schoolfield suggested a date for a bargaining session. Dixon was un-
able to meet on the date suggested and proposed March 17. The parties actually met
on March 19, 1962, and discussed the Company's proposal. The Company had not
discontinued overtime on the 19th as indicated in Schoolfield's letter but the Union
was advised in the meeting that it had been delayed until March 26. The Company
put forward its arguments of economics and efficiency on the issue and asked for a
counterproposal. The Union's reply to the proposal was an offer of a guaranteed 44-
hour week with no overtime after 40 hours, but it coupled its offer to a demand for an
increase in basic wage rates over the old contract rates of about 20 cents an hour.
Respondent again argued its financial inability to meet the Union's demands, and
the Union again asked for the books and records of all Respondents. The meeting
adjourned after the company negotiators had indicated that the Union's proposal was
not economically feasible, but had agreed to study it and advise the Union.
On March 20, 1962, Schoolfield wrote the Union advising that the Company was
forced to stop overtime for economic reasons and that it would be stopped on
March 26, 1962. Schoolfield asked the Union to contact him as soon as possible if it
could come ". . . forward with additional proposals ." so that the matter might
be discussed. He concluded by telling the Union that, if additional bargaining ses-
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions were wanted, they would be arranged as soon as possible. Overtime was discon-
tinued on March 26.
It was my impression at the hearing that General Counsel was taking the position
that Respondents ' elimination of premium pay was a refusal to bargain only because
Respondents would not produce the books of all Respondents in order to justify its
plea of economic necessity . General Counsel's brief, however , argues both the alleged
unilateral nature of the action and the refusal to disclose records.
The question of the books and records is disposed of by my finding that the refusal
to produce the records of J. V. Braswell and Braswell Motor was not evidence of bad
faith in the circumstances of this case . I also find that the facts show no unilateral
action with respect to premium pay within the meaning of the cases relied on by the
General Counsel .5 The premium pay problem was on the bargaining table since early
in the negotiations . The Respondent notified the Union of its contemplated change
and bargained with the Union about the subject . No final action was taken until after
discussion of a now familiar topic. Indeed, Respondent 's last letter left the matter
open for further discussion or counterproposals . There was no obstruction of the
bargaining process by Respondent here. Without even considering whether the
Union's insistence , in discussing the premium pay issue , that all Respondents produce
their records also vitiates the Union 's case, I find that the abolishment of premium
pay was not a violation of Section 8(a) (5) of the Act.
5. The alleged unfair labor practice strike
On April 23, 1962, the employees of Respondent Freight Lines in the appropriate
bargaining units went out on strike. The strike was preceded by a long letter sent
by the Union to J. V . Braswell , on April 17, 1962. In the letter the Union set forth
in detail its grievances against Respondent which may be summarized very briefly
as follows:
1. The Union complained that prior to February 1, 1961, the Company in bad faith
questioned the Union 's majority ; filed petitions for elections ; ignored invitations to
meet and misadvised employees of the status of negotiations.
2. After February 1, 1961, the Company met but improperly changed the terms
and conditions of the existing contract and unilaterally discontinued premium pay,
among other things.
3 The "Braswell system" had refused to produce its records despite its claim of
inability to pay wages.
4. In addition to its failure to bargain , Braswell had discriminated against a sub-
stantial number of employees.
The letter concluded by stating:
. . . Accordingly , unless the information here requested is made available,
proper action is taken to remedy the above discriminations , and employer meets
and engages in good faith bargaining by April 20 , 1962, your employees will strike
in protest against the above specified unfair labor practices . We await your
prompt response.
A copy of the Union's letter was sent to Attorney Schoolfield who did not personally
see it until April 21, 1962. Neither he nor the president of Respondent replied to it
and the strike took place on the 23rd. There were no communications between the
parties until sometime in the middle of June 1962 , when a meeting was set up for
June 25, 1962 , although the strike continued during that period.
The complaint alleges that the Respondents ' refusal to meet with the Union was
a violation of the Act , and that this and the refusal of Respondents to show their
books, and the alleged unilateral abolishment of premium pay caused the strike The
complaint does not allege that certain other matters set forth in the Union 's letter
caused the strike. For example , although the letter mentioned various asserted uni-
lateral actions, the complaint relies only on the abolishment of premium pay. In
addition , although the letter relies on a general course of conduct as evidence
of a refusal to bargain in good faith , the complaint alleges a refusal "in that"
Respondent engaged in certain specific acts
I have already found that Respondents did not engage in unfair labor practices in
regard to elimination of premium pay or denial of access to books and records, and
this leaves , therefore, only the refusal to meet as alleged as a cause of the strike.
In my opinion , the Union 's letter of April 17, 1962, was not an unconditional request
to bargain but an ultimatum to Respondents that a strike would occur unless
Respondents acceded to all requests in the letter , including the production of their
s N L R B. v Benne Katz, d/b/a Williamsburg Steel Products Co, 369 U.S 217;
Toffenetti Restaurant Company , Inc, 136 NLRB 1156
BRASWELL MOTOR FREIGHT LINES, INC., ETC. 1165
,records. There was no duty on Respondents ' part to accede or reply immediately.
In addition, there is no evidence in the record that Respondents have ever on any
other occasion failed to meet on request but what evidence there is on the subject
indicates a willingness to do so. The Union never followed up its request and never
withdrew its demands for all records which had been an apparent stumbling block
through all negotiations. When Schoolfield was advised by the Regional Director
of the Board that he considered the April 17 , 1962, letter as a continuing request
to bargain on the Union's part, Schoolfield wrote Dixon that he was willing to meet.
Subsequently, other bargaining sessions took place as described below. I find that the
Respondents did not refuse to bargain with the Union in good faith by ignoring the
Union's letter or by not asking for a meeting sooner than it did . The strike , therefore,
was not caused or prolonged by any unfair labor practices on Respondents' part.
6. Respondent 's reduction of the starting wage rate
During the strike the parties met for further negotiations . Attorney School-
field testified , and I credit his testimony , that at the beginning of a meeting on July 9,
1962, he announced that the Company, because of economic reasons, proposed to cut
the wages of employees with less than 3 months' service ( the replacements for strikers)
to $2 per hour . He asked the Union for suggestions . At that time , N. P. Wilson,
another company negotiator , injected the remark that Schoolfield was talking about
employees hired since the strike , and Schoolfield agreed. There was no comment
from the Union side of the table. The parties turned to different subjects and dis-
cussed them for some time . Later in the session , one of the union negotiators asked
when the $2 per hour rate would be established, and Wilson told him the "last of
July." Again other subjects were discussed.
At the adjournment of the July 9 meeting , the parties , for their mutual con-
venience, agreed on July 20 as a date for the next meeting. As that date approached,
Schoolfield found it necessary to call it off and suggested a meeting for July 26.
The Union was unable to meet on that date, and the parties finally agreed and met
on August 7. There is no claim of bad faith in the lack of meetings between July 9
and August 7.
At the August 7 meeting, Schoolfield offered the Union another written counter-
proposal for a contract. At the start of the meeting, the Union asked him if he
had put the $2 per hour rate into effect, and he said he had. The Union complained
that it did not understand the Company's action for the Union thought that it was
intended by the earlier proposal to start men with less than "three months seniority"
at $2 to promote them at regular intervals until they reached the old rate. Schoolfield
advised the Union that there was no such intent. He testified that there was no
discussion of rate progression at the July 9 meeting , and that all that the Company
did on August 1 was what it had advised the Union it intended to do, namely, cut
the wages of strikebreakers to $2 per hour.
Much was made at the hearing of what the Union understood the Respondent's
July 1 proposal to mean and why it should mean what the Union says it meant.
Dixon , the union negotiator , said he understood the original proposal to contain a
"seniority" concept and that seniority by past practice would include progression. As
indicated, Schoolfield denies this. In addition, considerable testimony was taken
about the fact that the Company's written proposal of August 7 contained a provision
that ". . . new employees will be hired at $2.00 per hour or at 7¢ per mile, whichever
scale is applicable , and will reach the top scale on a merit basis." This , according
to Dixon, indicated that the Company had not even done what it said it was going
to do in July for it had injected a "merit basis" principle into promotions contrary to
custom . Schoolfield 's position on this was that the above proposal had nothing
to do with the July suggestion that employees hired since the strike be reduced to $2
but had to do with employees hired after a contract was reached.
I find that the Respondent advised the Union of its plans to cut the wages of
striker replacements and gave the Union an opportunity to bargain about it I find
also, that Respondent did what it told the Union it was going to do and that the
Union had adequate opportunity to discuss or make counterproposals in the matter.
I am inclined to believe that the Union had little interest in how the Respondent
handled strikebreakers , but, in any case, at best there was a misunderstanding on
the Union's part. I find that Respondent did not unilaterally and in bad faith reduce
the rate of employees , as alleged in the complaint.
7. The Respondent 's alleged across -the-board offer of $3 an hour for all employees
The complaint alleged that Respondent , on July 9, counterproposed to the Union's
wage demands an across-the -board rate of $3 an hour for all employees , regardless
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of job classification , and in bad faith withdrew the proposal after its acceptance by
the Union.
The subject of a $3 rate for employees arose in the July 9 meeting. Respondent
contends that it was not seriously proposed . At this meeting the Company had
proposed cutting the rate of all employees hired since the strike to $2 an hour, and
had also discussed a cost problem of "layover" time. The discussion then turned
to the Union 's proposal , given earlier to solve the premium pay issue , that the Com-
pany guarantee a 44-hour week but raise the ante on the starting rate This is the
proposal that the Company had turned down earlier as not solving its economic
problems. Schoolfield testified , and I credit his testimony , that at this point he
asked Dixon if the Union was ". . . serious in that proposal ," since it did not solve
the Company 's problem, and that Dixon said it was. Schoolfield then said, "Why
don't we pay everybody $3 an hour?" Dixon said , with a smile, "I accept ." Wilson
said, "We withdraw the offer." According to Schoolfield, everybody laughed at that
point , but this Dixon denied taking the position that there was no humor or laughter
involved , and that he accepted the offer of a $3 rate for all in good faith.
Regardless of whether there was smiling or joking, I find, on the basis of the
whole record and my recall of the demeanor of the witnesses , that Schoolfield did
not seriously put forth the $3 suggestion as a solution , and that, in the context,
the Union would not have been reasonable in so believing . A substantial number
of employees were making less than $3 an hour, the Company had just proposed
cutting new employees to $2, was seeking other economic relief regarding job prac-
tices, and had rejected a proposal on premium pay tied to a wage increase as un-
economic . Schoolfield 's testimony that, in that context , it would have been just as
likely that he offer a $ 10 an hour rate has the ring of truth. Finally, the precipitate
nature of the acceptance and the fact that the matter was never mentioned again,
as far as this record shows , indicate that it was not taken seriously . I find no
evidence of bad faith in this instance as alleged in the complaint.
8. The allegation with respect to layover time
Layover time means the time spent by a driver at a terminal away from his home
terminal . Layover pay is the pay agreed upon by the parties to be paid the driver
when he is laid over a certain number of agreed hours.
The complaint alleged that Respondent bargained in bad faith in that it bargained
about layover time from February 1961 to July 9, 1962 , and reached an agreement
on July 9 which it revoked on August 7, 1962. The question of layover time had
been in the bargaining since the Company's first proposal in which it proposed a11. . . 24 hour lay-over time in order to lengthen and improve runs." In the July
9 meeting, about which so much has been said, layover time was again discussed
and the parties discussed examples of runs, such as Dallas to New Orleans, where
Respondent desired a 24-hour layover period without penalty in order to more
economically handle freight between those stations . It is clear that the Company
did not desire or need a 24 -hour layover period on all runs, and it is also clear that,
on July 9 , the Union agreed in principle with the Company 's need for 24 hours on
certain runs . On August 7, 1962, however , another company-written proposal con-
tained the same language about layover that was contained in the February 1961
proposal , namely a ". . . 24 hour layover time in order to lengthen and improve
line runs ." It is in this reiteration of the original proposal , after alleged resolution
and compromise of the issue that the bad faith is asserted . I find , however, in accord
with the contention of Respondent , that there was no firm and precise agreement
about layover in July, and, consequently , no meeting of the minds. In the July
meeting, the parties were unable to resolve their broad economic differences , and the
record shows that runs , such as Dallas-New Orleans, were used only as examples
of what the Company wanted . Not having reached a complete agreement other-
wise, the Company was not in bad faith , on August 9, 1962 , in proposing an all
encompassing clause on layover in order to preserve its bargaining position since
the matter of specific runs had not been firmly agreed to.
9 The incentive wage plan
On August 27, 1962, Respondent sent teletypes to its Braswell Freight terminals
instructing its terminal managers to begin an incentive wage plan for city pickup
and delivery drivers. This matter had never been discussed with the Union.
Attorney Schoolfield learned of the teletype and quickly advised his client that
the subject was a bargainable matter to be discussed first with the Union. He
told the Company to rescind its instructions to the terminal managers as soon as pos-
NEWBERRY MILLS, INC. 1167
sible . Immediately, on August 28, 1962 , the Company sent a second teletype to
terminal managers revoking the plan , and it has not been put into effect . Schoolfield
promptly got in touch with the Union and asked for a meeting to discuss the in-
centive plan . The parties soon met and negotiated about the plan and were still
meeting on details of its operation at the time of the hearing in this case. These
negotiations were sought by Schoolfield before any complaint was made by the
Union , and, so far as the record shows, even before the Union heard about the
plan.
I find that any detrimental or obstructive effect on the bargaining process was
overcome and repaired by the Company's speed in revoking its earlier action and
meeting and bargaining with the Union about the wage plan . Respondent did not
violate Section 8 (a) (5) of the Act in such circumstances.°
CONCLUSIONS OF LAW
1. Respondent Motor Freight , Respondent Freight Lines, and Respondent J. V.
$raswell are jointly an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
3. Respondents did not violate the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I recommend that the complaint be dismissed in its entirety.
° Cf.. N.L.R.B. v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U.S. 736.
Newberry Mills, Inc. and United Textile Workers of America,
Local 120, AFL-CIO. Case No. 11-CA-1887. April 10, 1963
DECISION AND ORDER
On December 28, 1962, Trial Examiner Sidney D. Goldberg issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and, take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended that those allegations of the complaint
be dismissed. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board, has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and briefs, and hereby adopts the findings, conclusions, and recom-
141 NLRB No. 110.