Chauffeurs, Teamsters and Helpers, Local 301

National Labor Relations Board - Board Decisions

May 21, 1974

210 N.L.R.B. 783 (N.L.R.B. 1974)

CHAUFFEURS, TEAMSTERS AND HELPERS , LOCAL 301 783
Chauffeurs, Teamsters and Helpers, Local Union No.
301, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America and Merchants Moving and Stor-
age, Inc. Case 13-CB-4883
May 21, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On November 30, 1973, Administrative Law Judge
Milton Janus issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in answer to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board 's established policy not to
overrule 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, enfd 188 F.2d 362 (C A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge: The General
Counsel issued his complaint in this proceeding on July 31,
1973, after a charge filed on June 20, 1973. The complaint
alleges that the Respondent (the Union or Local 301)
violated Section 8(b)(3) of the Act by demanding that the
Charging Party (Merchants or the Company) sign first an
interim collective-bargaining agreement and then a new
agreement with it, without affording Merchants the
opportunity to bargain over the terms and conditions to be
included in such agreements , and with no intention of
bargaining collectively in good faith . Also alleged as a
violation of Section 8(b)(3) is the assertion that the Union
called a strike and picketed Merchants ' premises in support
of these demands . Respondent's answer denies the material
allegations of the complaint.
I held a hearing in this matter on October 2 and 3, 1973,
at Chicago, Illinois, at which all parties were afforded full
opportunity to be heard. Briefs have been received from
the General Counsel and the Respondent which have been
duly considered.
Upon the entire record in the case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer is an Illinois corporation which maintains
an office and warehouse at Lake Bluff, Illinois , where it is
engaged in the business of moving and storage of goods for
commercial accounts and for various branches of the
Armed Forces . During a recent and representative 12-
month period, it performed services valued in excess of
$50,000 for business enterprises which themselves annually
shipped goods valued in excess of $50,000 directly to States
other than the one in which they were located. It is also an
agent and subcontractor for three interstate van lines
which move household goods for military personnel into
and out of military installations in the Chicago area . I find,
based on the undenied testimony of the president of the
Employer as to its operations as described above , that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction herein.'
If. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Merchants has recognized Local 301 as the representa-
tive of its drivers and helpers since 1962, and has entered
into bargaining agreements with it at approximately 3-year
intervals since then . Local 301 has jurisdiction over two
counties north and northwest of Chicago, and has
contractual arrangements with about 475 employers in its
area , each of whom is signatory to one of the 25 or so
separate contracts that Local 301 negotiates . Merchants is
one of the 9 or 10 employers who have uniformly been
included in Local 30l's Parcel and Furniture Drivers
(PFD) agreement . The PFD agreement covers all local
cartage operations of the employers covered by it (see sec.
i Ready Mixed Concrete & Materials, Inc, 122 NLRB 318, and H P 0
Service Inc., 122 NLRB 394
210 NLRB No. 133
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4, G.C. Exh. 4) and applies to such employees as drivers,
dockmen and helpers, mechanics and helpers, greasers,
and garage employees.
Bargaining in the Chicago metropolitan area has been
conducted by a Teamsters Council in which Local 301
participates, which negotiates with five or six employer
associations. Such bargaining sets the pattern for the wage
and fringe benefit structures which the separate Teamsters
Locals then propose to the employers with whom they deal.
Article I of the PFD agreement for 1970-73, which I
assume is typical of PFD agreements for other periods,
defines the employers covered as associations , members of
associations who have authorized it to execute the
agreement, members of associations who have not given
such authorizations, and individual employers who become
signatory to the agreement. The record in this case does
not indicate whether any of the 10 or so employers who are
covered by the PFD agreement belong to an association,
the nature of their authorizations to it, if in fact it exists, or
the nature of their bargaining with Local 301. There are
only two evidentiary items bearing on this question: (1)
that Mrs. Schultz, president of Merchants, signed a printed
contract in 1970 which she had never seen before, and (2)
that only one employer, of those who signed either the
1970 or the 1973 contract, was permitted any variations in
the terms of the standard contract.
The General Counsel and Charging Party sought to
introduce evidence as to the relationship between Mer-
chants and Local 301 since 1962, and specifically to show
that Merchants never had an opportunity to bargain for
itself , but had to accept whatever document Local 301
placed before it. I rejected the offer because I considered it
too remote even as background, but I did allow the
introduction of testimony as to the negotiations in 1970
which led to the last contract between the Company and
Local 301. In any event, this bore out what the General
Counsel had hoped to prove as to previous contracts, that
as a practical matter, Merchants could not expect to
negotiate a contract with Local 301 which departed from
the pattern set in the area-wide bargaining between the
Teamsters Council and the employer associations with
which it bargained. The reason for this seems obvious to
me, although I cannot point to any specific testimony in
the record which proves it neatly. Effective bargaining in
the Chicago area in the trucking and related industries
does not take place between individual Locals and
Employers but between their respective representatives-a
council of locals and associations . Once the area-wide
pattern has been set, both the unions and the associations
must hold the line to prevent undercutting. It was in such a
setting that Merchants, a company with six full-time
employees wanted to negotiate a contract with Local 301
without preconditions.
B. Bargaining Between the Company and Local 301
in 1973
The 1970 PFD agreement was due to expire April 30,
1973. On February 16, 1973, Robert Barnes , secretary-
treasurer and chief executive officer of Local 301, sent to
the employers signatory to that agreement, including
Merchants, notices of termination in accordance with
article 29, and also informing them that Local 301 would
meet "as a ,separate bargaining unit with you or your
Association Representative at a mutually convenient time
and place to negotiate a new Collective Bargaining
Agreement." Mrs. Schultz, president of Merchants, heard
nothing further from Barnes until April 6, when she
received an interim agreement (G.C. Exh. 6) with a request
that it be signed and returned immediately. It provided for
extension of the current agreement through July 31, 1973,
with all terms and conditions of that agreement to remain
in effect, except that wage rates and vacations were to be
increased by 24 cents per hour between May 1 and July 31.
About 2 weeks later, Mrs. Schultz spoke to LaDuke, a
business representative of Local 301, while he was at the
plant collecting dues, and told him she wasn't happy with
the present contract and wanted to know about the
Chicago furniture movers contract. LaDuke told her she
would have to contact Barnes about it. A month after that,
about May 15, Mrs. Schultz, who had been ill for part of
this time, went to the Union office to inform Barnes that
she would be away on vacation until June 8, that she could
not sign the interim agreement, and that he should not
bother her 23-year-old grandson about it while she was
away. She also left some financial reports about the
business with Barnes . When she returned from her
vacation, she wrote Barnes on June 12, referring to the
Union's notice of February 16, and asking about a time
and place for negotiating. She claimed that Merchants was
in an extremely precarious financial condition, noted that
she had no affiliation with any association and asked for
personal negotiations.
Barnes called her when he received her letter and
demanded that she get right down to his office by the
following Tuesday to sign the interim agreement. He hung
up the phone when she asked whether it was to negotiate.
Mrs. Schultz then retained Maslanka as her counsel.
Maslanka tried to reach Barnes in the next few days but
was unsuccessful. On June 18, Barnes called Schultz,
referred to Maslanka in derogatory terms, and told her to
be at his office the next day. She told him she couldn't be
there because Maslanka had to be out of town then.
On June 20, Barnes appeared at the Company' s premises
before work began, to inform the union members on the
lack of progress to date. When Mrs. Schultz arrived, she
asked what was going on. According to her, Barnes became
abusive because she had not kept the appointment for the
day before. She asked him and some of the employees to
come into her office, and then called Maslanka to talk to
Barnes . After some vituperative exchange between them,
Barnes hung up the phone, and insisted that she sign the
interim agreement immediately. She called Maslanka again
to get him to talk with Barnes, and this time, despite
further mutual recriminations , an arrangement was made
for Barnes to meet with Maslanka and Schultz on June 22.
The Company filed its charge in this case on June 20,
and by the time of the meeting on the 22d, Barnes had
received a copy. The meeting took place in Mrs. Schultz'
office. Barnes testified that he asked Maslanka, referring to
the charge, where he got the idea that Local 301 was
refusing to bargain in good faith, and that Maslanka had
said the charge was just a formality. Barnes said he asked
CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 301 785
Maslanka if he wanted to negotiate a new agreement or
extend the old one (to July 31) with the 24-cent additional
wages . Maslanka asked him why he wanted to extend the
old agreement, and Barnes said he told him that by July 31,
he would know what the results of the negotiations then
going on in Chicago would be . Maslanka said he preferred
to negotiate a new contract and asked Barnes if he had a
proposal to make . Barnes then showed him a proposal for a
new PFD agreement which had been favorably voted on
by the employees covered by that agreement on February 5
(G.C. Exh. 9). Its eight items read as follows:
1. 3 year agreement.
2. Wages-75 cents per hour each year.
3. Health and Welfare-$3.00 per week per mem-
ber.
4. Pension-$3.00 per week per member.
5. Vacation-Three weeks after 7 years. Four
weeks after 12 years. Five weeks after 20 years.
6. Holidays-Friday after Thanksgiving. Good
Friday.
7. Jury Pay.
8. Sick Pay-One day per month to accumulate up
to 60 days.
Barnes testified that Maslanka looked at the proposal,
said it was impossible for the Company to give anything in
view of its poor financial condition, and asked him to
review the Company's financial statements . Barnes said he
told Maslanka that he couldn't get into that . Barnes said he
did not insist that the 90-day interim agreement had to be
signed, that he would leave it to Maslanka either to agree
to it or to negotiate a new agreement. According to Barnes,
they went through the items of the proposal, that Maslanka
agreed to a 3-year agreement, but as to the items that could
cost the Company money, he said they could not afford
anything , and made no counteroffers . Maslanka said he
needed more time to go over the Company's financial
status, said he would take the proposals under advisement,
and asked for another meeting.
Mrs. Schultz testified on direct that Barnes had insisted
on June 22, that the Company had to sign the interim
agreement , that Maslanka responded that the Company
was in bad shape and he didn 't see how it could pay the
increase , and that he needed more time to go over the
company books. She also said she claimed that as a small
moving company it should not be subject to a freight
contract but should be under a movers contract such as
there was in Chicago . Barnes responded , according to
Schultz, that she didn't charge high enough rates. As to the
proposal for a new agreement , Schultz said on direct
examination that Barnes had given it to her and Maslanka,
but that they had not read it then. However, on cross-
examination Schultz admitted that Barnes and Maslanka
had gone over some of the specific items of the proposal,
and that Maslanka had said the Company could not afford
any, increase in health and welfare, and that it might not
even be able to afford the pension payments called for
under the expired agreement , much less pay any increase,
and that it could not afford the vacation increases . She said
that Maslanka had not gone into the holiday, sick pay, or
jury pay items.
Maslanka testified that he and Barnes did not discuss the
proposals for a new contract , that he told Barnes he would
look at them but needed more time to do so and to
evaluate the Company's financial condition . Maslanka said
that Barnes wanted Schultz to sign the interim agreement,
but Maslanka said that would have to be considered later
in the bargaining . According to Schultz and Maslanka, the
June 22 meeting lasted no more than 15 or 20 minutes,
while Barnes said it lasted more than an hour.
I credit Barnes as to the length of the meeting and the
subjects that were discussed. I find it highly unlikely that
after all the trouble gone into in arranging the meeting for
the 22nd, that it would have ended in 20 minutes. It was
Maslanka and Schultz who had called for and insisted on a
meeting, and once Barnes sat down with them it seems
likely that they would want to get into the Union's
proposal for a new agreement , since by then the interim
agreement had little more than a month to run. I find that
there was some discussion of the proposal for a new 3-year
agreement , but that Maslanka insisted that the Company
was in no financial position to pay anything more than
what it was already paying, if that.
On June 27, the second and last meeting was held.
Schultz and Maslanka met with Barnes who was accompa-
nied by Serdar, a trustee and business representative of
Local 301 . Maslanka went into the Company's poor
financial position , that it owed a bank $105,000, and
offered to prove it by having Barnes examine its records.
Barnes refused to do so. They considered the individual
items of the Union's proposal, but to each of the important
money items, wages, health and welfare , pensions, and
vacations, Maslanka argued that the Company was unable
to pay the increases listed in the proposal, but that it would
try to see what it could do. Maslanka never put forward
any specific amount which it offered to pay on any of these
items, and Barnes never offered to accept less than its
proposal. At one point, Maslanka asked what the Union
would take as a minimum hourly rate, but Barnes never
offered to take less than the 75-cent-per-hour increase
already proposed.
Maslanka and Schultz again asked why the Company
couldn't be covered by the Chicago Movers Association
contract (with Local 705) since Merchants was primarily a
furniture mover . Barnes , whose Local was not a party to
that agreement , rejected any transfer out of the PFD
agreement because his Local had been administering that
agreement for many years , and he was not about to change
it. He offered, probably facetiously, to add "Movers" to
the title of the PFD contract , but Maslanka pointed out
that it wasn't a title change he was interested in, but the
provisions of the Local 705 contract.2
Maslanka had by this time gone through all the
substantive money items of the proposal, and to each one
2 The Local 705 contract is in evidence as G.C. Exh. 10. It is effective for as against an hourly rate of $5 32 under the Local 301 contract If the Local
a 3-year term from January 15, 1972, thus overlapping the term of the 301 proposal for a 75-cent increase was approved , its rate after May 1, 1973,
proposed PFD contract, which was to start May 1, 1973. The 1972 rate for would be $6.32, as against $5.64 per hour in calendar 1973 under the Local
drivers of moving vehicles under the Local 705 contract was $5.09 per hour 705 contract.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had said that the Company could not afford the proposed
'increase , and as to pensions, that he didn't think it could
fven keep up with the provision in the expired contract.
Barnes then pointed out that the employees would lose
their pensions, to which Maslanka answered, according to
Barnes, that that was the way the ball bounces. Barnes said
that Maslanka had no counter proposals to make, and that
they were at loggerheads. He said he would have to go
back to the membership to report, and Maslanka said that
it was up to him, Barnes and Serdar then left. The meeting
lasted between a half hour and an hour. No arrangements
were made for another meeting.
The next day, Barnes sent notices to the Local 301
members employed by the Company for a special meeting
on July 5. On that day the men met, voted to reject
Maslanka's offer and to strike. The strike began on July 9,
and was still effective as of the date of this hearing, 3
months later. Soon after the strike began, much of the
Company's equipment was repossessed under a delinquent
chattel mortgage. The summer season, when the Company
does the bulk of its moving work for the military has been
lost. The Company offered to meet with the Union if it
removed its pickets, while Barnes offered to negotiate at
any time during the strike. No further bargaining sessions
were held.
Contentions, Analysis, and Concluding Findings
Section 8(b)(3) of the Act makes it an unfair labor
practice for the employees' bargaining representative to
refuse to bargain collectively with their employer, much the
same as its counterpart, Section 8(a)(5), imposes a
correlative obligation upon the employer to bargain
collectively with the employee representative. Section 8(d)
defines the phrase "to bargain collectively" as "the
performance of the mutual obligation of the employer and
the representative of the employees to meet at reasonable
times and confer in good faith with respect to wages, hours,
and other conditions of employment, . . . but such
obligation does not compel either party to agree to a
proposal or require the making of a concession ...
This case presents the question of the extent to which
concepts utilized in 8(a)(5) cases as indicia of bad-faith
bargaining are transferable to 8(b)(3) situations. Assuming
that a Union has satisfied the formal requirements of
Section 8(d) by meeting at reasonable times and conferring
on wages, hours, etc., has not insisted on including illegal
or nonmandatory clauses in the agreement, and has not
engaged in any unilateral act which may be per se
violations of the bargaining obligation, are there other
conditions which must be satisfied, similar to those which
have been imposed on employers in establishing that
bargaining has been conducted in good faith?
General Electric Company, 150 NLRB 192, enfd. 418 F.2d
736 (C.A. 2, 1969), cert. denied 397 U.S. 965 (1970), is a
case which presents in full detail, in both the majority and
dissenting opinions of the Board and the court, the theories
and reasoning by which bad faith can be distinguished
from good-faith bargaining in the case of an employer. An
adequate summary of the facts of this complex case is
unnecessary for my purpose ; very briefly, the conclusion of
the Board and the court was that the Company had
violated Section 8(a)(5) by its "entire course of conduct, its
failure to furnish relevant information , its attempts to deal
separately with locals and to bypass the national bargain-
ing representative, the manner of its presentation of the
accident insurance proposal , the disparagement of the
Union as bargaining representative by the communications
program , its conduct of the negotiations themselves , and its
attitude or approach as revealed by all these factors." 150
NLRB 192 , 196. In the shorthand phrase often used in
8(a)(5) cases, it is its "totality of conduct" which measures
the Company's good or bad faith in bargaining.3
One of the factors relied on by the Board in determining
the Company 's "totality of conduct " was its "take it or
leave it" attitude . As the Board put it:
Thus, a party who enters into bargaining negotiations
with a "take it or leave it" attitude violates its duty to
bargain although it goes through the forms of bargain-
ing, does not insist on any illegal or nonmandatory
bargaining proposals , and wants to sign an agreement.
For good-faith bargaining means more than "going
through the motions of negotiating." "... the essential
thing is rather the serious intent to adjust differences
and to reach an acceptable common ground ...."
Good-faith bargaining thus involves both a procedure
for meeting and negotiating , which may be called the
externals of collective bargaining, and a bona fide
intention, the presence or absence of which must be
discerned from the record . It requires recognition by
both parties , not merely formal but real, that "collec-
tive bargaining" is a shared process in which each
party, labor union and employer , has the right to play
an active role . . . Supra, at p. 194. (Footnotes and
citations in the original are omitted).
This seems to me to be saying that a "take it or leave it"
stance in bargaining is a per se violation , but the thrust of
the entire Board decision is rather that it may only be
evidence of an intention not to adjust differences or to
reach an acceptable common ground.
The Court's opinion states it somewhat differently. In
answering the dissent's argument that it never defines what
"take it or leave it" means , the majority said that it does
not consider the lack of major concessions as evidence of
bad faith, but rather that if the Company had made major
concessions , it would raise a strong inference of good faith.
418 F.2d 736 at 758 . Further attempts to resolve the exact
shade or tone of so elusive a concept as "take it or leave it"
bargaining is probably fruitless . As the Supreme Court
noted in N. L. R. B. v . Insurance Agents' International Union,
AFL-CIO, 361 U.S. 477, at 486 , "Obviously there is
tension between the principle that the parties need not
contract on any specific terms and a practical enforcement
of the principle that they are bound to deal with each other
in a serious attempt to resolve differences and reach a
common ground."
8 See also, the court 's statement on this point in section V of its opinion,
418 F.2d 736, 756
CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 301 787
The General Counsel's basic premise for its contention
that the Union violated Section 8(b)(3) is that it did not
intend to reach an agreement except on its own "take it or
leave it" terms. He seeks to prove that proposition from the
Union's totality of conduct, comprised of the following
items.
1. In 1970, Barnes told Mrs. Schultz that she had to
sign the contract which had been negotiated in Chicago,
and as evidence that he never intended to vary those terms,
he put before her a punted copy of that contract and
insisted that she sign it immediately. This reveals, accord-
ing to the General Counsel, a like intent on Barnes' part to
force Schultz to sign first the interim agreement, and then
the 1973 contract without negotiation.
2. Barnes refused to look at the Company's financial
records which it offered as showing its inability to pay the
rates set in the interim agreement and the new contract.
This also is said to reflect the Union's "take it or leave it"
attitude.
3. The PFD agreement (to which Local 301 and
Merchants had been parties for at least 10 years) was not
the proper contract for a moving firm such as Merchants,
since it pertained to parcel and furniture drivers. Maslan-
ka's offer to consider bargaining under the Chicago
Furniture Movers contract was rejected by Barnes "with
no intention of reconciling differences or offering conces-
sions."
4. Finally, the General Counsel argues that the strike
against Merchants, which began on July 9, and which was
authorized and sanctioned by Local 301, is itself a
violation of Section 8(b)(3) since it was in furtherance of its
unlawful stance, and thereby excused the Company from
its own obligation to bargain in good faith.
Leaving item 1 aside for the moment, and proceeding to
item 2, that Barnes refused to look at Merchant's financial
records, I see nothing in that to prove that Local 301
wanted thereby to frustrate the reaching of an agreement.
An employer violates Section 8(a)(5) if he refuses to
produce his financial records in order to substantiate a
claim that he is unable to meet a union's demands, but it
does not follow that a union is guilty of a violation of
Section 8(bX3) if it refuses to look at such records. An
employer may offer less than it is able to pay, and a union
may demand more than the employer is able to pay.
I think the General Counsel's argument that Barnes
exhibited bad faith by refusing to discuss transferring
Merchants to the coverage of a different contract to which
neither Local 301 nor Merchants had ever been a party is
without merit. The employees of Merchants had designat-
ed Local 301 as their representative; the description of the
unit work in that contract covered drivers and dockmen,
both of which are classifications employed by Merchants;
the Merchants plant is within the territorial jurisdiction of
Local 301, and there is no evidence that Local 301 was not
capable or willing to represent those employees as
adequately as it had in the past. Realistically, Maslanka
23
was only asking that the lower wage rates of the Chicago
Furniture Movers contract be made available to Mer-
chants, and Barnes was not obligated to grant such request.
The General Counsel contends that the strike against
Merchants was an independent violation of Section 8(bX3)
because it was in furtherance of its unlawful bargaining
posture. He recognized that a strike during bargaining is
not inconsistent with the duty to bargain in good faith.
However, he analogizes the situation here to those in which
the Board and courts have found that strikes to obtain
clauses deemed unlawful under the Act are themselves
unlawful, and to lockouts which have been found to be
unlawful because they were being used to avoid bargaining
entirely. His argument depends on a prior finding here that
the Union was already engaged in an unlawful refusal to
bargain by virtue of its bargaining demands and posture.
That is the crux of the case. The same central issue is also
raised by the General Counsel's first point in his argument,
that the Union's attitude to bargaining was unlawful
because of its inflexible and unyielding demand that all its
proposals be accepted without change.
I find, first of all, that the only two bargaining sessions
held between the parties resulted in a bargaining impasse.
The only issues they faced were the economic issues of
wages and fringes. I am satisfied that the Company was not
prepared, and was probably unable, to pay anything close
to what the Union was demanding. The gap between their
respective expectations was so wide and unbridgeable that
the parties early realized there was no possibility that
further discussions would result in a compromise. The
Union wanted an agreement on its terms, but then so did
the Company, despite its reluctance ever to state what it
was able or willing to pay. Neither was required, under
Section 8(d), to agree to the other's proposal nor to make
any concession, and I therefore find that the Union's
position during bargaining, considered either alone or
under the formula of "totality of conduct" was not
unlawful.4 It follows that the ensuing strike, designed to
bring pressure on the Company to accept the Union's
terms, was also not unlawful.
Some further comments on, or explanation of my finding
may be appropriate here. It may be that a union is guilty of
bargaining in bad faith if it singles out an employer in the
industry where its activity is concentrated, by demanding
more onerous contract terms from him than it is willing to
accept from his competitors, in order to drive him out of
business. But that is not the situation here, even if
ultimately the Union's demands make it impossible for
Merchants to compete. The Union is seeking for its
members employed at Merchants the same wages, pensions
and other benefits that it has gotten for the employees of
other employers in the area. It has an obligation to those
whom it represents to seek equal pay and fringe benefits
for similar work, regardless of who employs them, and if its
judgment is to pursue that goal without regard to possible
business failures, it seems to me that the Board is not
4 Ben Cutler v N L R B, 395 F 2d 287 (C A 2, 1968), enfg 164 NLRB union fail to bargain in good faith by informing Cutler that its
members would not work for him unless he paid them in accordance
Concededly, in the present case , the bargaining power of Local 802 with the revised bylaws. It is clear from N LR B v Insurance Agents'
so greatly exceeded that of Cutler that he would be almost compelled to International Union, supra, that " the use of economic pressure . is of
accede to most of the Union's demands But it is no violation of the Act itself not at all inconsistent with the duty of bargaining in good faith."
for a labor organization to be economically powerful. Nor did the 361 U S at 490-491
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
empowered, by interpreting the good-faith requirements of
Section 8(b)(3), to force it to moderate its demands. The
following quotation from Judge Friendly's dissent in the
General Electric case (418 F.2d 736 at 769) has no
precedential value since it is both a dissent and a dictum,
but it sums up my position so well that I offer it for its
intrinsic persuasiveness:
It surely cannot be, for example, that a union intent on
imposing area standards violated Section 8(b)(3) if it
refused to heed the well-documented presentation of an
employer who insists that acceptance of them will drive
him out of business. Neither can it be that a union
violates Section 8(b)(3) if it insists on its demands
because it knows the employer cannot stand a strike .3
9 Cutler v N L R B, 395 F 2d 287 (2 Cir 1968), is another
illustration of union obduracy. Although the employer's failure to
press his demands made it possible for this court to uphold the
decision in favor of the union without reaching the issue of overall
good faith, it would require some naivete to suppose that any efforts
by the employer in that case to get the musician ' union to alter its
wage scale would have borne the slightest fruit
I conclude, based on the foregoing discussion, that the
Union did not violate Section 8(b)(3) in its dealings with the
5 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
Company over the interim agreement or the proposed 1973
PFD contract, or by its strike.
CONCLUSIONS OF LAW
1. Merchants Moving and Storage, Inc., is engaged in
commerce and in activities affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers Local Union No.
301, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent has not engaged in any unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
It is hereby recommended that the complaint be
dismissed in its entirety.
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