Chauffeurs Local 572

National Labor Relations Board - Board DecisionsApr 21, 1976

223 N.L.R.B. 1003 (N.L.R.B. 1976)

CHAUFFEURS LOCAL 572 1003 Chauffeurs, Salesmen and Helpers Local 572, Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Dar San Commissary . Case 21-CB-5333 April 21, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On January 23, 1976, Administrative Law Judge Irving Rogosin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed limited exceptions and a brief answering Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Chauffeurs, Salesmen and Helpers Local 572, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Long Beach, California, its officers, agents, and representa- tives, shall take the action set forth in the said recom- mended Order, as modified: 1. Delete paragraph 1(a) and substitute the follow- ing: "(a) Refusing to bargain collectively with Dar San Commissary, by failing to give notices of the exis- tence of any dispute between it and the Company to the Federal Mediation and Conciliation Service and the California State Conciliation Service as required by Section 8(d)(3) of the Act, and by failing to con- tinue in full force and effect without resorting to strike all the terms and conditions of any existing contract pursuant to Section 8(d)(4) of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Dar San Commissary by failing to give no- tices of the existence of any dispute between ourselves and the Company to the Federal Me- diation and Conciliation Service and the Cali- fornia State Conciliation Service as required by Section 8(d)(3) of the Act and by failing to con- tinue in full force and effect without resorting to strike all the terms and conditions of any ex- isting contract pursuant to Section 8(d)(4) of the Act. WE WILL NOT engage in, call, or cause the em- ployees of Dar San Commissary to engage in, a strike for the purpose of modifying or terminat- ing a collective-bargaining agreement without first having complied with the requirements of Section 8(d) of the Act. The bargaining unit is: All production employees employed at the Employer's facility located at 3200 East 59th Street, Long Beach, California, excluding all other employees, guards, professional employ- ees, and supervisors as defined in the Act. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent and General Counsel contend that the Administrative Law Judge's proposed Order and notice is unduly broad in that it requires Re- spondent to refrain from striking for 60 days after giving the notices to Federal and state mediation services required by Sec. 8(d)(3) of the Act. We agree with this contention and, therefore , will modify the recommended Order accordingly. Local No. 156, United Packinghouse Workers of America, AFL-CIO (Du Quoin Packing Company), 117 NLRB 670 (1957); Internation- al Association of Machinists and Aerospace Workers, AFL-CIO (Inter-Conti- nental Engine Service, Inc.), 177 NLRB 516 (1969). CHAUFFEURS, SALESMEN AND HELPERS LOCAL 572, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE IRVING RoGosIN, Administrative Law Judge: The com- plaint, issued on August 8, 1975, alleges that Respondent 223 NLRB No. 76 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Specifically, the complaint alleges in substance that, by failing to notify the Federal Mediation and Conciliation Service and the California State Conciliation Service of its desire to terminate or modify an existing contract with the Employer or of the existence of a dispute between said parties, as required by Section 8(d)(3), and, since June 23, 1975, engaging in a strike concerning said dispute in viola- tion of Section 8(dX4), Respondent has refused and contin- ues to refuse to bargain collectively in good faith, thereby engaging in unfair labor practices within the meaning of Section 8(bX3) of the Act. Respondent's answer admits the procedural and jurisdic- tional allegations of the complaint , the execution of the collective-bargaining agreement, and the service of notice of reopening for modification , but denies the remaining allegations and the commission of any unfair labor practic- es.1 Hearing was held on October 17, 1975, at Los Angeles, California. The General Counsel, Respondent, and the Charging Party were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce oral and documentary evidence rel- evant and material to the issues , to argue orally , and to file briefs and proposed findings of fact and conclusions of law. At the close of the General Counsel's case, Respon- dent moved to dismiss the complaint for failure of proof. Ruling on said motion having been reserved, the same is hereby denied. All parties argued the case orally on the record, and filed briefs on or before November 24, 1975. No proposed findings of fact or conclusions of law have been filed by any of the parties. Upon the entire record in the case, based upon the ap- pearance and demeanor of the witnesses, and the briefs, which have been duly considered, I hereby make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Dar San Commissary, a California corporation, herein called the Employer, with a facility located in Long Beach, California, has, at all times material herein , been engaged in the business of preparing and distributing sandwiches and other food products to customers engaged in retail sales operations in California and Arizona. In the normal conduct of its operations, the Employer Respondent amended its answer at the hearing to admit that it has engaged in a strike since June 23, 1975 . over its dispute with the Employer. Designations herein are as follows: the General Counsel, unless otherwise stated or required by the context, his representative at the hearing ; Chauf- feurs, Salesmen and Helpers Local 572, International Brotherhood of Team- sters , Chauffeurs , Warehousemen and Helpers of America . Respondent, Respondent Union , or the Union ; Dar San Commissary , the Company or the Employer ; the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat . 519, 29 U .S.C. Sec . 151, et seq.), the Act ; the National Labor Rela- tions Board , the Board . The original charge was filed and served on June 24, 1975. Unless otherwise stated, all dates are in 1975. sells and ships products valued in excess of $50,000 annual- ly directly to customers located outside the State of Cali- fornia. The complaint alleges, Respondent's answer admits, and it is hereby found, on the basis of the foregoing, that, at all times material herein, the Employer has been an employer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Chauffeurs , Salesmen and Helpers Local 572, Interna- tional Brotherhood of Teamsters , Chauffeurs , Warehouse- men and Helpers of America, Respondent Union herein, is, and at all times material herein has been , a labor organi- zation within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The Issues 1. Whether Respondent notified the Federal Mediation and Conciliation Service and the California State Concilia- tion Service within 30 days after serving written notice upon the Employer of the proposed termination or modifi- cation of the collective-bargaining agreement or of the ex- istence of a dispute, as required by Section 8(d)(3). 2. Whether Respondent resorted to a strike without complying with the provisions of Section 8(d)(4) of the Act. B. Sequence of Events Respondent and the Employer were parties to a collec- tive-bargaining agreement commencing June 1, 1972, and expiring November 30, 1974, covering all production em- ployees with the conventional exclusions. On September 5, 1974, Respondent, by Secretary-Treasurer Jack D. Cox, mailed a letter addressed to the Employer, to the attention of Mr. Robert R. Darby, president, by certified mail, re- turn receipt requested, serving formal notice of reopening of the agreement for changes and modifications, and re- questing a meeting at the Employer's earliest convenience. The letter recited that it was being sent as the "official sixty (60) day notice" in accordance with the terms of the ex- isting agreement . There is no issue as to the receipt of this notice by the Employer. A facsimile of the receipt for certi- fied mail, showing the name and address of the addressee, bearing the date September 5, 1974, and the return receipt, purportedly signed by the addressee' s agent , with corre- sponding postal service numbers showing delivery on Sep- tember 6, 1974, were introduced in evidence.2 On June 23, 1975, Respondent went on strike against the Employer. The strike was still current at the time of the hearing. The real controversy is whether Respondent notified the 2 For reasons which will later become apparent, it is noted that, in the space on the receipt provided for POSTMARK OR DATE, the date "9-5-74" is insert- ed by typewriter. The date of delivery on the return receipt is handwritten "9/6/74 ." In neither instance is there an official postmark showing the date of mailing or of receipt for the certified mail. CHAUFFEURS LOCAL 572 1005 Federal (FMCS) and state (CSCS) governmental agencies of the existence of the dispute within 30 days after serving the 60-day notice on the Employer of the proposed modifi- cation, as required by Section 8(d)(3). Respondent main- tains that it notified both agencies by certified mail, return receipt requested, on October 5, 1974, on identical FMCS forms, of the existence of the dispute.' Evidence regarding notification to the governmental agencies was adduced primarily through Carolyn Wadley, Respondent's general office secretary for the past 5 years. According to her, it has been the Union's practice to com- pile a list during October or November of each year of all contracts due to expire. This list is typed by Wadley and maintained by her and Myra Ford, Wadley's immediate supervisor, under the general direction of Secretary-Trea- surer Cox.4 Wadley testified that she retains a copy of the list of contract expiration dates to enable her to send notices of reopening to the employers and to the two governmental agencies. She personally prepared such notices, she testi- fied, and mailed the notice to the Employer on September 5. She did not mail the FMCS notice, however, but flagged it on her calendar for mailing 30 days later. On October 5, according to her, the date appearing on the purported copy of the notice to the FMCS, she signed the notice, in Cox's absence, with his rubber stamp and simultaneously notified the State Conciliation Service, by mailing copies of the no- tice by certified mail, return receipt requested, to both agencies. In her pretrial affidavit, however, given on July 14, 1975, Wadley stated, "The letter to Dar San and the notice to the [FMCS] were the only letters that I or any one else in this office sent out advising that the Union wished to renegoti- ate its contract with Dar San. No notice was sent out to any state agency." At the hearing, Wadley insisted that when interviewed by the Board agent, she referred to both the FMCS and the CSCS, as indicated by the statement in her pretrial affidavit that she had not received the receipts for the certified mail. According to her, before concluding the interview, the Board agent asked her, "Were any other letters or notices sent to anyone or any State agency?" and J A copy of the purported notice , designated as NOME TO MEDIA. TION AGENCIES (FMCS Form F-7) completed by Respondent was in- troduced in evidence as part of a series among Respondent 's exhibits. At the top of the form there appears the following printed statement : "You are hereby notified that written notice of the proposed termination or modifica- tion of the existing collective bargaining contract was served upon the other party to this contract and that no agreement has been reached ." At the bottom of the form is printed the statement , "Receipt of this notice does not constitute a request for mediation nor does it commit the agencies to offer their facilities . This particular form of notice is not legally required . Receipt of notice will not be acknowledged in writing by the Federal Mediation and Conciliation Service ." The copy introduced in evidence was addressed to the Regional Office of the FMCS (on a line , designated "United States Government .") On the next line, (designated , "Appropriate State or Territo- rial agency") an obvious reference to the language of Section 8(d)(3), appear the words "Office of the Supervisor ." Respondent contends that an identical copy was forwarded simultaneously to the CSCS. A purported typewritten copy of the list of employees , including the Employer here , showing contract expiration dates, was annexed to Wadley's pretrial affidavit to a Board agent . Opposite the names of each employer appear the handwritten initials "L & M," denoting that a letter of reopening or termination has been mailed to the employer and notice sent to the FMCS. The initials "L & M" appear opposite the name of the Employer. she responded in the negative, meaning that no notice was sent to any state agency other than the CSCS. Nowhere in the affidavit, however, is there any specific mention of any governmental agency other than the FMCS. This, coupled with the statement, "No notice was sent out to any state agency," creates serious doubt as to whether such notice was actually sent. Nevertheless, Wadley testified that she recalled sending the required notices on the date in ques- tion to both governmental agencies. Although, according to Wadley, these notices were sent by certified mail, return receipt requested, she knew, at least as of the time she gave her pretrial affidavit, that the receipts had not been returned by either agency. Wadley maintained a file in which she kept copies of the notices sent to these governmental agencies, and sometimes checked this file to ascertain whether return receipts for these notices had arrived at the office. She did not do so, however, in this case , allegedly because she knew of in- stances in which such notices had actually been received even though the return receipts for such notices had not been delivered to the union office. In other instances, ac- cording to her, where return receipts did not reach the of- fice , she did not follow up because " sometimes things would be all settled and there would be no cause" to do so. Wadley further testified that neither she nor, to her knowl- edge, any other union personnel, attempted to ascertain from either of the agencies whether the notices had been received. Describing her customary procedure in handling outgoing certified mail, Wadley testified that she tapes the certified receipt to the envelope containing the letter, and places it in a box in the office for outgoing mail. At the close of business, the girl who handles the mail affixes the postage by use of a postage meter, bundles and labels the mail, and then deposits it in a U.S. mailbox away from the office. According to Wadley, the letters to both govern- mental agencies were mailed in this manner . Wadley, the only witness testifying as to the mailing procedure, did not personally stamp or deposit the mail in the mailbox. Wad- ley further testified that in the 3 years she had been sending out notices to the two agencies she had never, as far as she was aware, failed to perform this task. The General Counsel, however, introduced evidence by way of a stipulation of facts tending to prove that the re- quired notice was not given. According to this stipulation, if called as a witness , Alfred Klein, an attorney and former associate of the law firm representing the Employer, would have testified as follows: In a telephone conversation with Lowell McGinnis, re- gional director of the Federal Mediation and Conciliation Service, on July 1, 1975, Klein inquired whether Respon- dent had filed a notice with that agency (in compliance with Sec. 8(d)(3) of the Act) affecting the Employer. By letter dated the same day, a true and correct copy of which was attached to the stipulation, McGinnis informed Klein on an FMCS official letterhead, that a search of that agency's records, under the title of the Employer and Re- spondent, "indicates that we do not have a notice on file." The stipulation continued, that on about the same date, in a telephone conversation with Ralph Duncan, supervi- sor, California State Conciliation Service, Duncan in- formed Klein that he could not release information as to 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether Respondent had filed a notice (in compliance with Sec. 8(dX3) of the Act), unless the disclosure of such infor- mation was authorized by Respondent . Duncan further stated that Respondent had not authorized the release of this information . There was no showing that the Employer or the General Counsel had requested Respondent to au- thorize such disclosure but it is undisputed that Respon- dent did not authorize the same . In any event , there is no evidence as to whether the required notice is on file with the state agency. According to the undisputed testimony of Leon V. Ev- ans, the Employer's vice president and general manager who participated in the unsuccessful negotiations for a new contract which culminated in the strike, neither the FMCS or the CSCS communicated with him or any other manage- ment representative between December 6, 1974, the date of the last bargaining session , and June 23, 1965 , the date of the commencement of the strike, or thereafter. This, in the Employer's view, justifies the inference that Respondent had failed to notify either agency of the notice of proposed modification of the collective-bargaining agreement or the existence of the dispute because , according to this view, had these agencies been notified by Respondent , they, or either of them , would have intervened . It is generally agreed between the parties , however , that these agencies do not systematically intervene unless requested by the par- ties, even where they have been notified , pursuant to the statutory provisions, of the existence of a dispute. Further- more , it will be recalled that the official form of NOTICE OF MEDIATION AGENCIES specifically recites on its face , "Receipt of this notice does not constitute a request for mediation nor does it commit the agencies to offer their facilities." Under these circumstances, the failure of these agencies to offer their services to the parties furnishes no probative evidence as to whether Respondent notified the govern- ment agencies , as required by the Act.5 In an effort to establish compliance with Section 8(d)(3), Respondent introduced in evidence , over the objection of the General Counsel and the Employer, photocopies of a series of documents submitted by the Local Union to Joint Council of Teamsters No. 42, assertedly required in order to obtain strike sanction against the Employer . These doc- uments consisted of (1) a copy of Respondent 's notice of reopening, dated September 5, 1974, together with receipt for certified mail and return receipt ; (2) notification by the Local Union to the Joint Council, dated May 15, 1975, of contemplated strike action; (3) request for approval of out- of-work benefits, dated the same day; (4) copy of a Notice to Mediation Services (FMCS Form F-7), dated October 5, 1974; and (5) Joint Council Recognition of Contemplated Strike or Picket Action. 5 On September 12. 1975, Respondent mailed to the Employer by certified mail, return receipt requested , another notice of reopening . The letter, to- gether with the receipt for certified mail, and the return receipt . signed by the addressee 's agent showing delivery on September 16, 1975. was received in evidence , on the representation of Respondent 's counsel that notices were also sent to the governmental agencies at the same time , for the sole purpose of establishing that the Employer admittedly received no communications from either agency on this occasion . For the reasons already stated, this evidence is entitled to no weight in determining whether , in fact . Respon- dent actually complied with the notification requirements in regard to the September 5. 1974. reopening. Included among these documents was a page consisting of photostatic reproductions of two sets of receipts for cer- tified mail, with corresponding return receipts, numbered consecutively (984044 and 984045), the first to the FMCS, the other to the CSCS, both bearing the typewritten date, in the space for postmark or date, "10-5-74," Although the return receipts bear purported signatures of the addressees and addressees' agents, because of the manner in which the receipts were superimposed on a single sheet for the pur- pose of photocopying, the date of delivery on the CSCS receipt is concealed, and the line showing delivery date on the FMCS receipt is either blank or indecipherable. More- over, there is nothing on any of these receipts to indicate that they applied to this Employer. Considering that Wad- ley testified unequivocally that the return receipts were never received from either of the agencies; that the Union was unable to produce or satisfactorily account for the originals of these return receipts; that it made no effort to ascertain whether the notices to the agencies' had in fact been delivered, or to establish the identities of the purport- ed addressees' agents whose names appear on the receipts, the photocopies of the purported receipts have no proba- tive value in establishing compliance with Section 8(d)(3) of the Act.' Contentions and Conclusions Section 8(d)(3) of the Act provides in relevant part that, where there is in effect a collective-bargaining contract, the duty to bargain shall mean, in addition to those enumerat- ed in that section, that no party to such contract shall ter- minate or modify such contract unless the party desiring such termination or modification notifies the Federal Med- iation and Conciliation Service within 30 days after notice of the existence of a dispute, and simultaneously notifies the state agency established for the purpose in the State where the dispute occurred. Section 8(d)(4) requires the party giving notice to contin- ue in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing con- tract for 60 days after such notice is given or until the expiration date of the contract, whichever occurs sooner. An employee who engages in a strike within the notice period forfeits his status as an employee. Respondent contends that it complied with the provi- sions of Section 8(d)(3) by mailing appropriate notices to both the FMCS and the CSCS on October 5, 1974, by certified mail, return receipt requested. Admittedly, Re- spondent never received return receipts from either of these agencies, and made no effort to ascertain whether the notices were actually delivered. The attempt to establish by means of the purported photocopies of the unauthenticated receipts sent to the Joint Council that Respondent notified the agencies of the existence of a dispute has proved una- vailing. 6 Prior to the close of the hearing , Respondent 's counsel requested leave to have the hearing reopened in the event he was able to adduce proof of the authenticity of the return receipts. He was informed that such proof would be welcome and that , in the event it became available, a motion supported by appropriate affidavits to reopen the record would be entertained. No such motion has been filed. CHAUFFEURS LOCAL 572 1007 Respondent argues, however, that the burden of proving that it failed to comply with the notification provisions of Section 8(d)(3) is on the General Counsel, and that he has not overcome the presumption, based on Wadley's testimo- ny regarding the sending of the notices, that the notices were received by the addressees in the ordinary course of mail.? Assuming, however, arguendo, that Wadley actually mailed the notices to the two agencies, "correctly ad- dressed and properly mailed," 8 and that the presumption applies, reliable evidence was introduced at the hearing to rebut the presumption. Thus, the letter on FMCS statio- nery dated July 1, 1974, ostensibly signed by the Regional Director of that agency, declares that the required notice was not on file. Respondent objected to this evidence and to any reli- ance thereon because of its hearsay character. Moreover, Respondent argues, a statement that the required notice was not on file does not justify a finding that the notice was not received. While there may be something to be said for this position, it is evident that the clear intendment of the letter was that no such notice had been received by that agency. When this is coupled with Respondent's inability to produce probative evidence of actual delivery of the no- tice, whether by means of a signed return receipt or by other reliable means, the inference is reasonably warranted that the notice was not received. As to the hearsay character of the FMCS letter, the issue is whether it falls within one or more of the recognized exceptions. Apart from the fact that the Act provides that the rules of evidence in a Board hearing shall be the rules applicable in the U.S. District Courts, so far as practicable, the evi- dence is admissible under the Federal Rules of Evidence.9 Rule 803 provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (7) Absence of entry in records kept in accordance with the provisions of paragraph (6).-Evidence that a matter is not included in the memoranda reports, rec- 7 Respondent relies on California Evidence Code, §641. "A letter correct- ly addressed and properly mailed is presumed to have been received in the ordinary course of mail." There appears to be no corresponding provision, as Respondent concedes, in the Federal Rules of Evidence . It is not clear whether the presumption on which Respondent relies applies equally to certified mail . It is, at least, arguable that if a party elects to mail a notice by certified mail , return receipt requested , when not required , he has elected to rely on the return receipt for proof of such delivery, and waives the benefit of the presumption . "The risks inherent in the means employed to transmit the written notice fall on the party giving the notice , even though it be by personal service ." N.L.R.B. v. Vapor Recovery Systems Co., 311 F.2d 782, 785 (C.A. 9, 1962). 8 In view of the admission of Cox, Wadley's superior, that the date, Octo- ber 5, 1974 , appearing in the space for POSTMARK OR DATE, on the receipt for certified mail sent to the agencies , was inserted by Wadley at the time the notices were prepared , this evidence is of doubtful probative value in estab- lishing the mailing of the notices. 9 The quoted rules are those contained in Federal Rules of Evidence. effective July 1, 1975, which do not differ materially in the areas involved from those prevailing during the period in question. ords, or data compilations, in any form, kept in accor- dance with the provisions of paragraph (6) [records of regularly conducted activity] to prove the nonoccur- rence or nonexistence of the matter, if the matter was of a kind of which a memoranda, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circum- stances indicate lack of trustworthiness. (8) Public records and reports.-Records, reports, statements, or data compilations, in any form, of pub- lic offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, . . . or (c) in civil actions and pro- ceedings . . . , factual findings resulting from an in- vestigation made pursuant to authority granted by law, unless the sources of information or other circum- stances indicate lack of trustworthiness. (10) Absence of public record or entry.-To prove the absence of a record, report, statement, or data compi- lation, in any form, or the nonoccurrence or nonexis- tence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to dis- close the record, report, statement, data compilation, or entry. (24) Other exceptions.-A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthi- ness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the state- ment is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the state- ment into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant. With regard to the proviso to Rule 803 (24), it was repre- sented by counsel for the Charging Party, without contra- diction, that on August 18, 1975, in proceedings for an injunction in the U.S. District Court involving this contro- versy, Respondent was apprised of the FMCS letter, and thereby afforded an opportunity to meet the information contained in that statement. Moreover, the public policy of the FMCS against permitting its agents to testify in pro- ceedings in the courts or before any administrative agency furnishes additional grounds for the admissibility of the 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD letter.10 The letter, written on official stationery of the FMCS, ostensibly signed by the Regional Director of that agency, and dealing with the subject matter involved, fur- nishes a guarantee of trustworthiness , and the interests of justice will be best served by relying on the statement as proof of its contents. It is insufficient , in order to overcome the effect of this evidence, to rely on the presumption of delivery of the re- quisite notices to the governmental agencies . The Board has held that to be effective such notices must actually be received. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Employer described in section I, above, have a close, inti- mate , and substantial relationship 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. ... it is a familiar legal principle that where a statute or contract requires notice to be given or served with- out prescribing the manner in which it should be done, actual notice is required and the notice is ineffective until received by the person to be served.I I Since the Board referred to both notice and service in the Ohio Oil case , Respondent's contention that the case is inapposite because it applies only to Section 8(d)(1), which requires that the written notice to the other party must be served whereas Section 8(dX3), involved here , requires that the agencies be notified is untenable. Unlike the situation with regard to the FMCS , there is no evidence from the state agency as to whether Respon- dent notified it of the existence of the dispute . In her pretri- al affidavit, Wadley stated categorically that no notice was sent to any state agency . Her purported explanation ap- peared contrived and unconvincing , and is not credited. Whatever may be said for Respondent 's position regard- ing the burden of proof, the Act imposes an affirmative duty on the party seeking to terminate or modify the col- lective-bargaining agreement to notify the agencies in- volved of the existence of the dispute , and the burden of producing evidence of compliance with the notice require- ments is on the party asserting such compliance . Without regard to the state of the record regarding notification to the state agency , Respondent's failure to comply with the requirement of notification to the FMCS would alone be sufficient to establish noncompliance with Section 8(d)(3), since the section requires notice to both agencies simulta- neously , in the conjunctive , and the statute is not satisfied by notice to one of them. It is , therefore , found, on the basis of the foregoing and the entire record , that the General Counsel has established a prima facie case of Respondent 's noncompliance with the provisions of Section 8(d)(3) which Respondent has failed to overcome , and that , by failure to comply with said pro- visions , Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(3) of the Act. It follows that the strike in which Respondent engaged, on and after June 23, 1975, which was current at the time of the hearing , violated Section 8 (d)(4) of the Act. 10 No effort was made by any of the parties to serve a subpena on the FMCS, presumably because of the known policy of the agency . The parties. therefore , ought not to be required to resort to this procedure only to be confronted by a motion to quash or a futile attempt to enforce a subpena. It might, however, have been better practice to have had the letter authenticat- ed, pursuant to Rule 902 of the Federal Rules of Evidence. The Ohio Oil Company. 91 NLRB 759, 761 (1950). See also N.LR.B. v. Vapor Recovery Systems Co., 311 F.2d 782 (C.A. 9, 1962). V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act, it will be recommended that Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Dar San Commissary, a California corporation, is, and at all times material herein has been, an employer en- gaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Chauffeurs, Salesmen and Helpers Local 572, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Respondent Union herein , is, and at all times material herein, has been a labor organization within the meaning of Section 2(5) of the Act. 3. All production employees employed at the Employer's facility located at 3200 East 59th Street, Long Beach , California, excluding all other employees, guards, professional employees and supervisors defined in the Act, constitute a unit appropriate for purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, Chauffeurs , Salesmen and Helpers Local 572, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been the exclusive representative of all em- ployees in the aforesaid unit for purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By engaging in a strike for the purposes of modifying or terminating its agreement with the Employer, without serving on the Federal Mediation and Conciliation Service and the California State Conciliation Service the notices required by Section 8(d)(3), Respondent has violated Sec- tion 8(d)(4) and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: CHAUFFEURS LOCAL 572 ORDER 12 Respondent , Chauffeurs , Salesmen and Helpers Local 572, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Long Beach, Cal- ifornia , its officers , agents , and representatives , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Dar San Com- missary , by failing to give notices of the existence of any dispute to the Federal Mediation and Conciliation Service and the California State Conciliation Service as provided in Section 8(d)(3), and to continue in full force and effect, without resort to a strike, all the terms and conditions of an existing agreement for a period of 60 days after such notice is given or until the expiration date of such agreement, whichever comes later, as provided by Section 8(d) of the Act. (b) Engaging in, calling , or causing the employees of Dar San Commissary to engage in a strike , for the purpose of modifying or terminating a collective -bargaining agree- ment, without first having complied with the requirements of Section 8(d) of the Act. 2. Take the following affirmative action which, it is 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 1009 found, will effectuate the policies of the Act: (a) Post at its business offices and meeting halls in Long Beach , California, copies of the attached notice , marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be tak- en by Respondent to ensure that said notices are not altered, defaced, or covered by other material. (b) Furnish the Regional Director for Region 21 signed copies of the attached notice marked "Appendix," for post- ing by the Employer, if it is willing, at its facility in Long Beach, California, in places where notices to employees are customarily posted, to be maintained for a period of 60 consecutive days thereafter. Copies of said notice, to be furnished by the Regional Director for Region 21, after being duly signed by the authorized representatives of Re- spondent, as provided in paragraph 2(a) of this recom- mended Order, shall be forthwith returned to the Regional Director for such posting. (c) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 13 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."