Chemrock Corp.

National Labor Relations Board - Board Decisions

Mar 24, 1965

151 N.L.R.B. 1074 (N.L.R.B. 1965)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When I became acting foreman, Blair told me that if I did a good job I would
become foreman some day. When I was told that I would be a permanent fore-
man, it was a surprise to me.
It will be noted that the witness Burgstresser omitted from the above prehearing
statement any mention of his conversation with General Manager Blair about mark-
ing his ballot in the election so that the company observer could detect his ballot
from the others being counted. His explanation of the omission of such pertinent
evidence was that he did not wish to expose his friend (Blair), who had recently
made him a permanent foreman. I must therefore conclude that Jack Burgstresser
(while acting as foreman) was creating the impression among fellow employees that
he was supporting the Union, while concurrently keeping General Manager Blair
informed about the organizational activities. It is, therefore, understandable why
the Company would discharge Ernest Snover as the ringleader in the organizational
campaign, and at the same time retain in its employment a turncoat foreman. The
Board has often held that failure to discharge all employees engaged in union activi-
ties is not reliable evidence to support a contention of Respondent that a certain
other known union supporter was not discharged for that reason.
The testimony of General Manager Blair at the original hearing was evasive and
uncertain with respect to his conversations with Jack Burgstresser. Blair could not
remember whether Burgstresser told him that Ernest Snover was the ringleader, but
was positive that Burgstresser denied taking any part in organizing the Union. He
did recall, however, that "through the grapevine" he learned that Burgstresser, Snover,
and Volpe were passing out union cards; and that on at least two occasions he dis-
cussed the activities of these particular employees with President Carver by telephone
at his office in Maplewood, New Jersey, and kept him informed as to what was going
on at the Phillipsburg plant.
Having previously found herein that General Manager Blair engaged in independ-
ent violations of Section 8 (a) (1) of the Act by interrogating certain employees con-
cerning attendance at union meetings in July 1963, and also by interrogating Jack
Burgstresser (employee) as to who was the ringleader of the organizational activities,
and concerning his own intentions about voting in the election, I cannot now agree
with argument of counsel for the Respondent in his supplemetal brief that "there is
a complete absence of antiunion activity and union animus on the part of this
employer, City Gas Company of Phillipsburg."
Having fully considered at the reopened hearing the prehearing written statement
and further cross-examination of Jack Burgstresser, I find no additional evidence to
require any modification in the findings, conclusions, and recommendations con-
tained in the Trial Examiner's Decision issued herein on April 30, 1964.
RECOMMENDED ORDER
It is therefore recommended that the Trial Examiner's Decision, issued on April 30,
1964, be adopted in its entirety without modifications in the findings of fact, con-
clusions of law, or recommendations set forth therein.
Chemrock Corporation and Teamsters , Chauffeurs, Helpers
& Taxicab Drivers Local 327, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen, and
Helpers of America. Case No. 26-CA-1590. March 24, 1965
DECISION AND ORDER
On December 20, 1963, Trial Examiner Alba B. Martin issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
151 NLRB No. 111.
CHEMROCK CORPORATION 1075
its entirety , as set forth in the attached Decision . Thereafter, the
General Counsel filed exceptions to the Decision and a supporting
brief. The Respondent filed a reply brief.
The National Labor Relations Board has reviewed the rulings
made by the Trial Examiner at the hearing and finds that no preju-
dicial error was committed . The rulings are hereby affirmed. The
Board has considered the Trial Examiner 's Decision , the exceptions
and briefs , and the entire record in the case, and finds merit in the
General Counsel 's exceptions . Accordingly, the Board adopts the
Trial Examiner's findings and conclusions only to the extent that
they are consistent with the Decision herein.
The facts may be briefly summarized . Tennessee Products and
Chemical Corporation , herein Tennessee Products , a large, diversified
company, was engaged in the manufacture of insulation products at
a plant in Nashville, Tennessee . It had a collective -bargaining agree-
ment with the International Association of Machinists covering the
production and maintenance employees and another agreement with
the Charging Party, Teamsters , Chauffeurs , Helpers & Taxicab
Drivers Local 327, herein called the Union, covering the five truck-
drivers at the Nashville plant. The latter contract , which ran from
September 12, 1961, through September 11, 1963, also covered the
five drivers who operated trucks for Tennessee Products from
Chattanooga, Tennessee.
On July 29 , 1963, Tennessee Products sold the Nashville plant to
a newly formed company, the Respondent , Chemrock Corporation,
with Chemrock to take over the plant on August 1, 1963. After
that date , the Respondent continued to produce the same products,
on the same machine and with the same employees as had Tennessee
Products . The plant superintendent continued in that capacity.
Tennessee Products ' general superintendent became president of the
Respondent . The vice president of the Respondent had formerly
been in charge of sales for Tennessee Products . Respondent pur-
chased Tennessee Products ' trucks and took over its sales, credit,
and purchasing files. The Respondent did not, however , assume
Tennessee Products ' contract obligations.
With respect to its production and maintenance employees, the
Respondent continued the employment of the former employees of
Tennessee Products at the same wages as before and a few weeks
after beginning operations negotiated a new contract with the Ma-
chinists . With respect to its drivers , however, the Respondent
pursued a different course.
On July 10, 1963 , Tennessee Products notified the Union of the
contemplated sale of the plant in Nashville and on the same date
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notified the Respondent of the existence of the collective -bargaining
agreement between Tennessee Products and the Union and enclosed
a copy thereof. On July 17, 1963, Sloan, the Union's business agent,
wrote a letter to Respondent's attorney , Taylor, reminding him of
the existence of the agreement and notifying him that the Union
wished to reopen the agreement and bargain with the Respondent
regarding changes. Taylor acknowledged receipt of the letter on
July 24.
On July 29, 1963, the Respondent called a meeting of the truck-
drivers then working for Tennessee Products. Sloan, who had been
notified of the meeting by the drivers, appeared at the appointed
time. The Respondent's president, Duvier, excluded Sloan from the
meeting, however , and Sloan returned to his automobile and awaited
the end of the meeting.
At the meeting, Duvier informed the drivers of the contemplated
change in ownership. On the following night, July 30, Respondent
held another meeting with the drivers. At this meeting, Duvier
indicated a desire to hire the drivers, but made it clear that Respond-
ent would deal with then only as "free agents" and on an individual
basis, at a rate below that set by the contract. The drivers asked for
an opportunity to consider the offer. On the following day, July 31,
the drivers discussed the offer among themselves, and the union
steward, Olive, discussed it with Business Agent Sloan. The five
drivers decided that they would still like to be represented by the
Union and that they would insist on their contract rights. That
evening Olive informed Duvier of the drivers' decision and told him
that if the Respondent wanted to discuss the matter further, it
should contact Sloan.
The Respondent did not contact Sloan, but on the following day,
A ugust 1, the Respondent hired five new drivers. On August 6,
Sloan visited the offices of the Respondent's attorney in an effort to
convince him of his obligation to bargain, but the Respondent's
attorney refused to concede that there was any obligation to do so.
On these facts the Trial Examiner found that the Respondent
had not violated Section 8(a) (1), (3), and (5) of the National
Labor Relations Act, as amended. He based his conclusion that
the Respondent had not violated Section 8(a) (3) of the Act on his
finding that the 'Respondent's offer of a lower rate of pay was
motivated by economic considerations and not by opposition to the
union activities of the five drivers. He based his dismissal of the
charge that Respondent had violated Section 8(a) (5) of the Act on
his conclusion that the five drivers had never become the "employees"
of the Respondent. We agree with the Trial Examiner's conclusion
CHEMROCK CORPORATION 1077
that the Respondent did not violate Section 8(a) (3) of the Act,
but we do not agree that the Respondent's conduct did not constitute
a violation of Section 8 (a) (5) of the Act.'
In the Phelps Dodge case 2 the Supreme Court held that the term
"employee" must be construed broadly. It pointed (pp. 191-192) to
the broad language of Section 2(3), which defines the term "em-
ployee" as including "any employee, and shall not be limited to the
employees of a particular employer, unless the Act explicitly states
otherwise . . . ," and to the broad definition of "labor dispute" con-
tained in Section 2(9), which states that such disputes may arise
"regardless of whether the disputants stand in the proximate relation
of employer and employee . . . ," as clearly indicating a congressional
intent that applicants for employment, and strikers who had obtained
"regular and substantially equivalent employment" from another
employer were "employees" within the meaning of the Act.
In Hearst Publications 3 the Supreme Court affirmed its holding in
Phelps Dodge that the definition of "employee" must be given a
broad meaning in keeping with the statute's broad terms and
purposes. It rejected the contention that "technical concepts" of
the employer-employee relationship should govern the interpretation
of the term "employee" as used in the Act, and stated (p. 129) that
the term :
. . . like other provisions, must be understood with reference
to the purpose of the Act and the facts involved in the economic
relationship. Where all the conditions of the relation require
protection, protection ought to be given.
And in committing to this Board the primary obligation for deter-
mining "where all the conditions of the relation require protection,"
the Court further stated (p. 130) :
Everyday experience in the administration of the statute gives
it familiarity with the circumstances and backgrounds of em-
ployment relationships in various industries, with the abilities
and needs of the workers for self-organization and collective
'Member Brown would also find that the Respondent ' s failure to hire the five drivers
was discriminatorily motivated . He regards the facts set forth above as clearly in-
dicating that the Respondent ' s motive in offering the drivers a wage rate lower than
that provided for in the collective -bargaining contract was to rid itself of the Union
as the representative of its employees He would therefore find that the Respondent
violated Section 8 (a) (3) of the Act. New England Tank Industries , Inc, 133 NLRB
175, enfd. 302 F. 2d 273 (CA. 1), cert. denied 371 U.S. 875 ; Piasecka Aircraft Corpora-
tion, 123 NLRB 348, enfd 280 F. 2d 575 (C.A. 3) ; Barney Wilkerson Construction Com-
pany, 145 NLRB 704; Alton-Arlan 's Dept Store, Inc., 150 NLRB 1303.
2 Phelps Dodge Corp v NLRB , 313 U S. 177
8 N L R B. v. Hearst Publications , Inc, 322 U.S 111.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action, and with the adaptability of collective bargaining for
the peaceful settlement of their disputes with their employer.
The experience thus acquired must be brought frequently to bear
on the question who is an employee under the Act.
We think the circumstances of this case present an economic
relationship "where all the conditions require protection" and where
"protection ought to be given." The transaction between Tennessee
Products and the Respondent represented nothing more than a
change in ownership. Respondent continued to operate the plant
with the same management, the same production employees, and
the same trucks. The driving jobs for which the five drivers were
not rehired remained the same. The Union and Tennessee Products
had enjoyed stable labor relations and had executed collective-
bargaining contracts for a period of 10 years prior to the transfer
of ownership. Thus the employing enterprise, of which the drivers
were an integral part, remained the same after its acquisition by
the Respondent. The Respondent, in fact, recognized the drivers'
close relationship to the enterprise when it extended to the drivers
preference in hiring, rather than immediately hiring replacements.
We think that where, as here, the only substantial change wrought
by the sale of a business enterprise is the transfer of ownership,
the individuals employed by the seller of the enterprise must be
regarded as "employees " of the purchaser as that term is used in
the Act. Such individuals possess a substantial interest in the con-
tinuation of their existing employee status, and by virtue of this
interest bear a much closer economic relationship to the employing
enterprise than, for example, the mere applicant for employment
in the Phelps Dodge case. The particular individuals involved here
were unquestionably "employees"' of the enterprise at the time of
the transfer of plant ownership. The work they had been doing was
to be continued without change. Clearly employees in such a situa-
tion are entitled to seek through bargaining to protect their economic
relationship to the enterprise that employs them. As the Supreme
Court recently stated in another context :
Employees and the union which represents them, ordinarily
do not take part in negotiations leading to a change in corporate
ownership. The negotiations will ordinarily not concern the
well-being of the employees, whose advantage or disadvantage,
potentially great, will inevitably be incidental to the main con-
siderations. The objectives of national labor policy, reflected
in established principles of federal ]aw, require that the right-
ful prerogative of owners independently to rearrange their
CHEMROCK CORPORATION 1079
businesses and even eliminate themselves as employers be bal-
anced by some protection to the employees from a sudden change
in the employment relationship ....4
We therefore hold that the five drivers whom the Respondent did
not hire were "his employees" within the meaning of Section 8(a) (5)
of the Act.
Our conclusion that the drivers were "his employees" is but-
tressed by interpretations given the same phraseology in Section
8(b) (7) of the Act. That section provides in pertinent part:
(b) It shall be an unfair labor practice for a labor organiza-
tion or its agents-
(7) to picket or cause to be picketed, or threaten to picket
or cause to be picketed, any employer where an object thereof
is forcing or requiring an employer to recognize or bargain with
a labor organization as the representative of his employees ... .
[Emphasis supplied.]
In the R.S. Noonan, Inc., case 5 we held, with judicial approval, that
the phrase included "future or prospective" employees where a
union picketed in support of a demand for recognition and a contract
at a time when the employer had no employees. In like vein we
found in the Cartage cC Terminal case,6 again with judicial approval,
that picketing to force an employer to hire certain union members
and to recognize the union as their representative was picketing to
force the employer to recognize the union as the representative of
"his employees" even though the union members had never been
hired.' We think it clear that the drivers herein bear a much
closer relationship to the business enterprise than the "prospective"
and "future" employees in the cases set forth above. And we
perceive no reason here for distinguishing between Section 8(a) (5)
and Section 8(b) (7) in the interpretation of the term "his em-
ployees" nor does "the Act explicitly state otherwise."
*John Wiley d Sons v. Livingston, 376 U.S. 543 , 549. The Supreme Court there decided
that the arbitration provisions of a contract signed by the predecessor employer were
binding upon the successor employer . Although we do not here decide the applicability
of that holding to this case , we regard the above -quoted observation as pertinent to the
issue now before us.
5 Local 542 , International Union of Operating Engineers, AFL-CIO (R. S. Noonan,
Inc.) 142 NLRB 1132, enfd 331 F. 2d 99 (C.A. 3).
B Local 705 , International Brotherhood of Teamsters , etc (Cartage & Terminal Man-
agement Corp .), 130 NLRB 558 , enfd. 307 F. 2d 197 (C.AD.C.).
7 Compare Sperry v. Local Union No. 562, Plumbing and Pipe fitting, 210 F. Supp. 743
(D.C. W. Mo. ), where the court rejected as a defense the contention that , since the
picketing was for the purpose of forcing recognition of the union with respect to future
employees , it was therefore not for the purpose of representing "his employees."
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record clearly shows, and the Trial Examiner found, that
all five of the drivers were members of the Union and that the Re-
spondent was fully aware of their membership and of their designa-
tion of the Union as their bargaining representative in an ap-
propriate unit. Moreover, the drivers, by their insistence that the
Respondent deal with the Union's business representative, clearly
demonstrated their continued adherence to the Union when the Re-
spondent, immediately before it took over the operations of the
plant, sought to negotiate with them directly the terms and condi-
tions of their continued employment. The drivers, as we have found
above, were Respondent's employees within the meaning of the Act,
and the Union represented all of them. The Respondent's failure
to bargain with the Union upon request, its unilateral change in
the wage rates offered the drivers, and its dealing individually with
the drivers thus constituted, we hold, violations of Section 8(a) (5)
of the Act.8
Moreover, even were we persuaded that the phrase "his employees"
in Section 8 (a) (5) precludes our finding that Respondent violated
that particular section of the Act, we would nevertheless find a
violation of Section 8(a) (1) on the facts in this case. As has been
shown above, during the interim period between the time it con-
tracted for the purchase of the plant and the time it took physical
possession, Respondent, deliberately bypassing the Union, entered
into direct dealings with the drivers concerning their continued
tenure of employment and the terms and conditions of such con-
tinued employment. It is undisputed that the Union at least during
that period still retained its statutory status as the employees' duly
designated bargaining agent in an appropriate unit. Section 7 of
the Act guarantees employees the right, inter alia, "to bargain col-
lectively through representatives of their own choosing" with respect
to matters affecting their employee interests. And that right, in
turn, exacts a correlative obligation from one who would deal with
represented employees as to such matters to deal with them through
their statutory representative and not directly. (Medo Photo Supply
Corporation v. N.L.R.B., 321 U.S. 678.) It is quite clear that when
Respondent invited the drivers as a group to confer with it about
their continuity of employment and rates of pay in the "employing
industry" to which it was succeeding, it was acting in an employer
e We do not hold, as Member Jenkins suggests , that the purchaser of an enterprise is
legally obligated to refrain from making any changes in the employment status of his
predecessor 's employees or to continue their employment under existing terms and con-
ditions of employment . Rather we hold that, in circumstances such as those described
above , the purchaser may not ignore the employees ' collective-bargaining representative
in dealing with them as to matters related to the continuation of their employment and
the terms and conditions of such employment.
To the extent that Page Aircraft Maintenance, Inc, 123 NLRB 159, and similar cases
may be inconsistent herewith, they are hereby overruled.
CHEMROCK CORPORATION 1081
capacity, and this is so regardless of whether the employees were
yet Respondent's employees in a literal sense. Moreover, the subjects
about which Respondent engaged in direct dealings with the drivers,
though concerned with terms and conditions of employment that
were not to be applicable until Respondent actually took over the
plant, involved nonetheless matters as to the negotiation of which
the employees had a legitimate right and interest to be represented
by their bargaining agent.9 Having itself elected during the interim
period referred to above to deal with the employees on matters prop-
erly a subject for collective bargaining, Respondent could not at the
same time lawfully disregard the employees' statutory right to bar-
gain through their then currently duly designated bargaining repre-
sentative. Respondent's insistence upon bypassing the Union and
dealing with the employees directly and, even more so, its flouting
of the employees' expressed desire to be represented by the Union in
such negotiations, constituted, it is found, a clear infringement of
the employees' Section 7 rights, and as such was violative of Section
8(a) (1).
THE REMEDY
We have found that the Respondent, by refusing, upon request, to
recognize and bargain with the Union as the representative of its
drivers, by unilaterally changing the drivers' wages, and by bypass-
ing the Union and dealing directly with the drivers as individuals,
violated Section 8(a) (5) and (1). In fashioning a remedy, we must
bear in mind that the remedy should be adapted to the situation that
calls for redress, and with a view toward restoring, as nearly as
possible, the situation to that which would have prevailed but for
the unfair labor practices.10 We shall, of course, order the Respond-
ent to cease and desist from the unfair labor practices found, and,
affirmatively, upon request, to bargain with the Union concerning
the drivers' wages, hours, and other conditions of employment.
Moreover, it is clear that if the Respondent had honored its bargain-
ing obligation and not infringed upon the employees' statutory
rights, as found above, the drivers would not have been terminated
without the protection afforded them through collective bargaining
with their union about their wages and the continuation of their
"The Board has held that where an appropriate bargaining unit remains the same,
the mere change of ownership of an "employing industry" is not alone such a change of
circumstances as to affect the representative status of the bargaining agent or its right
to represent the employees in the unit taken over with respect to the terms and condi-
tions of their continuing employment See, e g , Johnson Ready Mix Co., 142 NLRB
437; Maintenance, Incorporated, 148 NLRB 1299 In this case, it is apparent that
when Respondent invited the drivers as a group to confer with it concerning the terms
and conditions on which it would continue their employment, it at least contemplated
the possibility of taking over as a unit the entire crew of drivers to perform the same
work they had done in the past.
10 Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment. They would have retained their jobs at least until the
Respondent had completely fulfilled its bargaining obligation, and
it is well within the realm of possibility that as the result of such
bargaining they might not have been terminated at all. Effectuation
of the purposes of the Act requires that employees whose statutory
rights have been invaded by reason of the Respondent's unlawful
action, and who have suffered loss of employment by reason thereof,
shall if possible be restored to the employment status they enjoyed
prior to such unlawful action. The Respondent in this case has
continued to operate the enterprise in the same manner as its prede-
cessor, and to use the services of employees in the work which its
terminated drivers performed. Accordingly we shall order the
Respondent to offer' the drivers reinstatement to their former or
substantially equivalent employment, without prejudice to their
seniority and other rights and privileges, and to make them whole
for any loss of earnings suffered as a result of the Respondent's un-
lawful action.11 As it is speculative, and cannot be determined,
what rate or rates of pay might have governed their employment had
the Respondent fulfilled its obligation to bargain with their repre-
sentative, and as in any event their existing rate could not have been
changed until and unless the Respondent has fulfilled its bargaining
obligation, we shall direct that backpay due them shall be computed
at the rate provided in the contract governing their employee rela-
tionship at the time the Respondent acquired the enterprise.12 Back-
pay shall further be computed in the manner set forth in F. W.
Woolworth. Company, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling
Company of Miami, Inc., 344 U.S. 344; with interest added thereto
in the amount and in the manner set forth in Isis Plumbing and
Heating Co., 138 NLRB 716.13
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce Within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
3. All over-the-road truckdrivers employed by the Respondent at
its Nashville, Tennessee, plant, excluding all other employees, office
clerical employees, professional and technical employees, guards,
n Cf. Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410; Fibreboard Paper Prod-
ucts Corp, 138 NLRB 550 , enfd sub nom . East Bay Union of Machinists, Local 1304,
etc., 322 F. 2d 411 (C.A.D C.).
12 Cf. New England Tank Industries , Inc, 147 NLRB 598
13 We deem the remedy set forth above to be appropriate and necessary to effectuate
the purposes of the Act, whether the conduct of the Respondent herein described be
regarded as violative of Section 8(a)(1) or Section 8(a)(5), or as found above , of both
CHEMROCK CORPORATION 1083
watchmen, and supervisors , as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 ( b) of the Act.
4. At all times material herein, the Union has been the exclusive
bargaining representative of the employees in the aforesaid unit
within the meaning of Section 9 (a) of the Act.
5. By refusing to bargain with the Union upon request concerning
the continued tenure of employment and terms and conditions of
employment of drivers in the aforesaid bargaining unit; by uni-
laterally changing wages of employees in said unit without prior
notice to, or consultation with the Union; and by bypassing the
Union and dealing directly with employees concerning matters prop-
erly the subject of collective bargaining, in derogation of the employ-
ees' Section 7 rights, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (5) and
(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Chemrock Corporation, Nashville, Tennessee, its
officers, agents, successors , and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Teamsters, Chauffeurs,
Helpers & Taxicab Drivers Local 327, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representative of a unit
composed of all over-the-road truckdrivers employed by the Respond-
ent at its Nashville, Tennessee, plant, excluding all other employees,
office clerical employees, professional and technical employees,
guards, watchmen, and supervisors, as defined in the Act.
(b) Instituting changes in the rates of pay of employees in the
aforesaid appropriate unit without first consulting with and bar-
gaining with the Union as the exclusive bargaining representative.
(c) Bargaining directly with employees, who are then represented
by the Union, or any other labor organization, as an exclusive
collective-bargaining agent, with respect to rates of pay, or other
terms or conditions of employment, in disregard of the representative
status of their exclusive collective-bargaining representative.
(d) Interfering, in any other manner, with the efforts of the
exclusive collective-bargaining representative to negotiate for or
to represent the employees in the aforesaid bargaining unit as their
exclusive bargaining agent.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named Union, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds
will effectuate the purposes of the Act :
(a) Bargain collectively, upon request, with Teamsters, Chauf-
feurs, Helpers & Taxicab -Drivers Local 327, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of the appro-
priate unit described above, with respect to rates of pay, wages, hours
of employment, and other conditions of employment, and if an
understanding is reached, embody such understanding in a signed
agreement.
(b) Offer to William E. Olive, Doyle E. Maynard, S. Q. Willis,
James B. Nelson, and Otis Shadix immediate and full reinstatement
to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges and make them whole
for any loss of pay, dismissing, if necessary, to provide employment
for those offered and accepting employment, truckdrivers presently
employed at Respondent's Nashville, Tennessee, operation.
(c) Notify the above-named employees if presently serving in
the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or
its agents, all payroll records and other records in the Respondent's
possession necessary for the computation of lost earnings due
hereunder.
(e) Post at its plant in Nashville, Tennessee, copies of the attached
notice marked "Appendix." Copies of said notice, to be furnished
by the Regional Director for Region 26, shall, after being duly
signed by a representative of Respondent, be posted by the Respond-
ent immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all
places where notices to its employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.14
14 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
CHEMROCK CORPORATION 1085
(f) Notify the Regional Director for Region 26, in writing, within
10 days from the date of this Order, what steps Respondent has
taken to comply herewith.
MEMBER JENKINS, concurring and dissenting :
I agree that the Respondent's conduct during the interim period
between the time it contracted for the purchase of the plant and the
time it took physical possession constituted a violation of Section
8(a) (1) of the Act. I do not agree with the conclusion that Re-
spondent also violated Section 8 (a) (5).",
The majority has concluded that a purchaser of an enterprise
motivated solely by economic considerations and who expressly dis-
claims in the contract of sale the assumption of any obligations of
the seller nonetheless acquires as its own employees all the seller's
employees and is legally bound under the Act to hire the employees
at the same wage rates. Plainly stated, the majority has held that a
purchaser purchases the seller's contractual obligations with respect
to the seller's employees and is not free to hire his own employees.
There is no gainsaying that the Respondent offered the drivers
employment, albeit at a lower wage rate, and that by not reporting
for work they refused the offer. Thus, in my view they never became
employees of Respondent. Therefore Respondent was under no duty
to bargain with the Union. The majority, characterizing the sale
between Tennessee Products and Respondent as "nothing more than
a change in ownership," concludes that the drivers "must be regarded
as employees of the purchaser as that term is used in the Act."
Recognizing, however, that Section 8(a) (5) requires an employer to
bargain with "his employees," they rely on Supreme Court decisions
defining the term "employees" generally in wholly different contexts
and conclude that the drivers who refused Respondent's offer of
employment were "his employees" within the meaning of Section
8(a) (5).
The cases relied on neither compel nor suggest such a result. The
issue in Phelps Dodge,"' which gave rise to the Court's interpretation
of the term "employee," was whether an employer may refuse to
hire employees solely because of their affiliation with a labor organi-
zation. In Hearst Publications,17 the issue was whether the newsboys
were "employees" of Hearst or "independent contractors," the
employer contending that the common law standards were applicable.
15 The Trial Examiner found "on the credible, undenied and uncontested evidence ...
that Chemrock's motive in offering the drivers less money for their services was purely
economic, an effort to start the new corporation off on a transportation cost equality
with its competitors," and concluded that "for economic reasons important to it" Re-
spondent sought "to set the original wages of the drivers it would employ." The record
amply supports the Trial Examiner in this regard ; therefore, I agree that Respondent
did not violate Section 8 (a) (3) of the Act.
16 Phelps Dodge Corp. v. N L.R.B., 313 U.S. 177.
17 N L.R.B. v. Hearst Publications, Inc., 322 U S. 111.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rejection of technical legal concepts and the adoption of a broad
construction by the Court in defining the term "employee " in those
cases do not furnish a basis for expanding the scope of the term "his
employees" as used in Section 8(a) (5). Nor does the Court 's state-
ment in Phelps Dodge, seized on by the majority, that "[W]here all
the conditions of the relation require protection , protection ought to
be given" afford a legal basis for such an interpretation.
The majority "buttresses" its conclusion by relying on interpreta-
tions of the term "his employees " as used in Section 8 ( b) (7) of the
Act. Such reliance is even more misplaced than that on Phelps
Dodge and Hearst Publications , supra. Other than being the "same
phraseology ," the interpretation of the term "his employees ", as used
in Section 8(b) (7) by the Board and courts, casts no light whatso-
ever on the scope of the meaning of that term as used in Section
8(a) (5) of the Act. Section 8(b) (7) was enacted by Congress to
provide sanctions for what it deemed to be unfair labor practices
arising out of organizational and recognitional picketing for spe-
cifically proscribed objects. I agree that in that context the term
may include " future or prospective" employees in order fully to
effectuate the purpose of that section. In my view, to give a similar
interpretation to Section 8(a) (5) merely because the phraseology is
the same is to make a fortress of the dictionary.
Finally, the majority has placed an unnecessary, and in some
cases fatal , restraint on the free alienation of business enterprises
or parts thereof. If a prospective buyer is not free to structure a
new enterprise in such manner as will in his judgment convert a
failing or nonprofitable operation into a competitive and profitable
venture, the likelihood that a business may be shut down or sharply
curtailed by the prospective seller becomes greater. Compelling a
purchaser to hire the employees of the seller further encumbers
stagnant and unprofitable enterprises by reducing the flexibility
available to prospective buyers and tends to foreclose any rejuvena-
tion which might result from sales to new owner -managers.
Concluding as I do that the drivers never acquired the status of
employees of Respondent , I would find no violation of Section
8(a) (5) here.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify you that:
NE WILL NOT refuse to bargain collectively with Teamsters,
Chauffeurs, Helpers & Taxicab Drivers Local 327, affiliated with
CHEMROCK CORPORATION 1087
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive representative of
the employees in the bargaining unit described below.
WE WILL NOT institute changes in the rates of pay of employ-
ees in the aforesaid bargaining unit without first consulting with
and bargaining with the above-named organization.
WE WILL NOT bargain directly with employees, who are then
represented by the Union, or any other labor organization, with
respect to rates of pay or other terms or conditions of employ-
ment in disregard of the representative status of their exclusive
collective-bargaining representatives.
WE WILL NOT interfere, in any other manner, with the efforts
of the exclusive collective-bargaining representative to negotiate
for or to represent the employees in the aforesaid bargaining
unit as their exclusive bargaining agent.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form organizations, to join or assist the above-
named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in any other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL, upon request, bargain collectively with the said
Union as the exclusive representative of all our employees in the
appropriate unit with respect to wage increases and related
matters, and, if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is:
All over-the-road truckdrivers employed by the Respondent
at its Nashville, Tennessee, plant, excluding all other em-
ployees, office clerical employees, professional and technical
employees, guards, watchmen, and supervisors, as defined
in the Act.
WE WILL offer to William E. Olive, Doyle E. Maynard, S. Q.
Willis, James B. Nelson, and Otis Shadix immediate and full
reinstatement to their former, or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges, and will make them whole for any loss of pay they
may have suffered by reason of unfair labor practices as found
by the National Labor Relations Board.
CHEMROCK CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NoTE.-We will notify 'the above-named employees if presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
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, 746 Federal Office Building, 167 North Main Street, Memphis,
Tennessee, Telephone No. 534-3161, if they have any question con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented by counsel , was heard before Trial
Examiner Alba B . Martin, in Nashville, Tennessee , on November 14, 1963, on com-
plaint 1 of the General Counsel and answer of Chemrock Corporation, Respondent
herein. The issues litigated were whether Respondent violated Section 8(a)(5), (3),
and (1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq.,
herein called the Act. At the hearing the General Counsel and Respondent presented
oral argument . Respondent filed a brief which has been considered.
Upon the entire record, and my observation of the witnesses , I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent , Chemrock Corporation , a Tennessee corporation , is engaged in the
manufacture of mineral wood and perlite , insulation products , at its plant 2 in Nash-
ville, Tennessee . Since the commencement of its business operations on August 1,
1963, Respondent has purchased and received at the Nashville plant, supplies and
materials directly from points outside the State of Tennessee valued in excess of
$10,000. During the 12-month period from August 1, 1963, through July 31, 1964,
Respondent will have purchased and received supplies and materials at its Nashville
plant directly from points outside the State of Tennessee valued in excess of $50,000.
Respondent admitted , and I find, that Respondent is engaged in commerce within
the meaning of Section 2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Helpers & Taxicab Drivers Local 327, affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, is a labor organization within the meaning of Section 2(5) of the Act.
The Alleged Unfair Labor Practices
On August 1, 1963, Chemrock Corporation , a new corporation formed for the
purpose, took over operation of the Nashville plant. A few days before Chemrock
had purchased the plant from Tennessee Products and Chemical Corporation, which
was operating it. A few days before takeover , Chemrock met with and offered
employment to the Plant production and maintenance employees and the drivers;
to the production and maintenance employees at the same wages they were getting;
to the over -the-road truckdrivers at a drop in wages. The production and mainte-
1 The Union filed the original charge on August 7, 1963, and the first amended charge
on September 19, 1963.
2 In fact there are two plants , one the mineral wool plant, one the perlite plant, on
the same tract of land , but for the purposes of this case it is simpler and appropriate to
refer to them sometimes as the plant or the Nashville plant.
CHEMROCK CORPORATION 1089
nance employees, represented by the Machinists, whose contract at takeover had
some months to run, continued working, and several weeks later Chemrock and the
Machinists negotiated a new contract.3 The drivers, represented by Local 327, whose
contract had at takeover some 6 weeks to run, refused employment at the proffered
wages and stood upon their contract which provided for the higher wages. Chem-
rock refused to honor the contract between Local 327 and Tennessee Products and
to pay the wages established in it. As results, the drivers did not go to work for
Chemrock, on August 1 Chemrock sought, found, and hired other drivers in their
stead, and Local 327 filed the charges herein.
Under the contract Tennessee Products was paying the truckdrivers 8 cents per
mile and $2.20 per hour for layover, delay, and breakdown time. Respondent
offered them 7 cents per mile, $1.75 per hour for layover, delay, and breakdown time,
and a guarantee of $75 weekly.
Chemrock's motive in offering the five drivers employment at less than the contract
rates was purely and solely economic. No hostility against Local 327 was suggested
or proven. The members of management under Tennessee Products who became
officers and management under the new corporation had had amicable relationships
with the drivers and with Local 327.4 Chemrock's product, insulation materials, was
highly competitive in the area, and in studying the cost of transportation prior to
takeover, Chemrock discovered that its competitors in the area were substantially
under Tennessee Products in transportation costs. The principal products hauled by
Tennessee Products' drivers were heavy chemicals and alloys, so that each truckload
carried a much larger volume payload than a truckload of insulation, which was
bulky and light in density. Conversely, Chemrock discovered that the transportation
cost of each truckload of insulation material cost Tennessee Products considerably
more than the transportation cost of a truckload of the heavier products. Thus,
Chemrock discovered that the transportation costs established in the existing Teams-
ters' contract were geared to the bulk of Tennessee Products' operations and not to
its incidental insulation plants which Chemrock bought over. Of note here is that
Tennessee Products has fixed assets of some $26,000,000, whereas Chemrock paid
some $409,000, for the plants and equipment it took over. Thus on the credible,
undenied, and uncontested evidence I conclude that Chemrock's motive in offering
the drivers less money for their services was purely economic, an effort to start the
new corporation off on a transportation cost equality with its competitors.
The General Counsel contended in substance that as a successor to Tennessee
Products, Chemrock operated the same "employing industry" and had a duty to bar-
gain with the Union for the drivers under an existing certification. The Board's
records reflect and I take official notice that the Union was certified by the Board on
August 18, 1954, after winning an election four to three (Case No. 10-RC-2785).
Under the certification the last contract between Local 327 and Tennessee Products
was for the period September 12, 1961, to September 11, 1963. This contract
included a checkoff of union dues for the drivers and a union-security clause.
Within the meaning of "successor" in Board and court law Respondent was indeed
the "successor" to Tennessee Products in the ownership and operation of the Nash-
ville plant. Beginning August 1, Chemrock continued making the same products as
the predecessor in the same way on the same machines in the same plant with the
same employees under the same supervision. The plant superintendent continued
in that capacity. The president of the new corporation had been general superin-
tendent of the predecessor over the same plants. The vice president of Respondent
had been in charge of sales of the products of these plants for Tennessee Products 5
The production and maintenance employees were immediately employed by Chem-
rock at their same wages. Chemrock bought the trucks from Tennessee Products,
so that the same trucks were used to haul and deliver the products as before the sale
to at least some of the same customers. The latter conclusion is based upon the fact
that Chemrock's purchase included "Mineral wool, perlite and Tenn Flo Kardex
customer files," "telephone service of Seller's main office in Nashville to mineral
3 The seller's contract with the Machinists referred to and covered only the Nashville
mineral wool plant. By contrast the seller's contract with Local 327 covered all of
Tennessee Products' over-the-road transportation and did not refer to the Nashville plant
at all. After the takeover, Tennessee Products continued to honor its contract with
Local 327 for the remainder of its over-the-road transportation, which was hauled by
five drivers out of Chattanooga.
Standing solidly upon what it deemed to be its rights was not evidence of hostility
5 The buyer's board of directors, other than the president and vice president, had had
no connection with the seller.
783-133-66-vol. 151-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wool plant until an orderly transfer of customers can be made," "service of Seller's
sales, purchasing and traffic departments until an orderly transfer of business can
be made," "all applicable credit files," "all applicable vendor purchasing files and
customer sales files." Also, Chemrock's president, Duvier, testified he told the
drivers that "the customers were happy with them the [drivers] and their work was
very satisfactory." Before takeover the drivers were subject to assignment to haul
other products of the seller than the products of the Nashville plant. Basically,
however, their jobs remained the same; to drive trucks when and where they were
directed to by their employer.
Through its evidence Respondent contended in substance that some changes were
made in the operation of the business such as to free it from whatever obligation it
had to bargain with the Union. Whereas Tennessee Products had operated its min-
eral-wool-perlite business from its main office in Nashville, Respondent operates it
from a new office building built by Respondent on the plant premises. Some unspeci-
fied transfers of personnel were made. Chemrock set up a new and different system
of accounting and bookkeeping with a new accountant and a new bookkeeper. Its
attorney was not Tennessee Products' attorney. It has a completely different insur-
ance plan from the seller's plan. It did not claim workmen's compensation credit
from Tennessee Products. Chemrock had to have a new State license. Also it had
to relicense the trucks. Shortly, but not at the time of takeover, it bought some new
and larger trailer units so it could get more payload for each dollar of transportation
costs. Chemrock set up new accounts with the State and Federal Governments for
unemployment and social security. The employees signed new W-4 forms for the
purposes of social security and personnel records. Before, the plant did not do its
own purchasing; now it does. Chemrock has a new bank account, a new treasurer,
new stationery, and new invoices. It is thinking of manufacturing a new plastic
insulation product. Before, Tennessee Products paid the salesmen a salary; since,
selling is on a commission basis. Chemrock discarded the aggressive selling tactics
of the seller and emphasizes service to customers. It seeks "large, quality-type cus-
tomers, where we have to actually move trailer units onto the job sites, drop them
and allow large contractors to use them as warehouses and then we replace those
trailers and actually ship them back and forth and things of this type that we were
unable to do before."
The nature of these changes but emphasizes that the employing enterprise remained
substantially the same after the sale as before. These were fiscal, bookkeeping,
superficial management changes, but they were inconsequential in their effect upon
the nature of the "employing industry" and their impact upon the diivers.
Upon the above facts and considerations and the entire record considered as a
whole I conclude that Chemrock was a "successor" to Tennessee Products in the
ownership and operation of the Nashville plant.
To be noted however is that in the agreement of sale the purchaser assumed no
liabilities or obligations of the seller and no accounts receivable of the seller.
Conclusions
The threshold question in this case is whether Respondent had any obligation at
all towards the five old drivers. The bona fides of the sale of the plants were not
questioned, and the record proved that neither the seller nor the purchaser entered
into the sales transaction with any intent to discriminate against the drivers, or to
undermine the Union.
As a new corporation, in hiring its first employees Respondent's only obligation
was not to discriminate against any applicants for employment, including the five
old drivers, in order to discourage or encourage membership in a union. This duty
it fulfilled.
Respondent wanted to hire the five old drivers. Chemrock's president, Duvier,
testified that at one of the meetings with the old drivers just before takeover, "I told
them that they were good men .... They had performed their job as far as I knew."
One of the drivers testified President Duvier said, "He would like for us to drive,
that we knew all of the places we had to go." Nevertheless Respondent had no obli-
gation to offer them employment just because the drivers were members of a union
and Respondent knew it. Placing Respondent under this obligation would have
imposed closed-shop condition not permitted under the amended Act.
As a new corporation hiring its first employees, Chemrock had a right to set the
original wages it was willing to pay. Until they became its employees Chemrock
had no duty to negotiate and bargain with their bargaining agent the original wages
it would pay the five old drivers. Here the five old drivers never became employees
of Chemrock because they insisted upon setting the initial wages they would accept
CHEMROCK CORPORATION 1091
as employees and stood upon their presumed right to be represented by their union
in their prehiring relations with their prospective new employer. Until noon of
August 1, the takeover day, Respondent kept the five drivers' jobs open for the five
old drivers, knowing that the drivers were insisting upon'the contract wages and that
the Union was contending that Chemrock was obligated under the contract and the
successorship clause in it 6 to bargain their initial wages with the Union. Thus it is
clear on the entire record that Respondent did not seek to discriminate against the
five old drivers but that it did seek, for economic reasons important to it, to set the
original wages of the drivers it would employ. Thus it did not discriminatorily
refuse to employ the five old drivers. Rather, the drivers refused to work for the
wages Chemrock would pay. Both Respondent and the drivers acted within their
rights and, as a result, the drivers did not become employees of Respondent. Chem-
rock then proceeded on the afternoon of August 1 to hire other drivers for even less
than it had offered the five old Tennessee Products' drivers.
To what extent, if any, do the above considerations and conclusions not apply
because Chemrock was a "successor" to Tennessee Products? I believe the fact of
successorship does not vary these considerations and conclusions where, as here, the
employees involved never became employees of the successor and they were not
discriminatorily refused employment. In all the "successorship" cases I have been
able to find,7 save one, Piasecki Aircraft Corp.,8 the employees involved actually
became employees of the successor and the cases involve problems based upon the
fact that they were employees. Here the five old drivers never became employees.
Hence the "successorship" cases are not applicable and as a "successor" Respondent
had no duty at all towards th old drivers except the duty it had toward all applicants
not to refuse them employment for discriminatory reasons.
An additional reason why the fact of "successorship" placed no obligation to the
Union upon the purchaser is the fact that the sale transaction split the appropriate
unit in two. I take official notice from the Board's records in Case No. 10-RC-2785
that at the time of the certification in 1954 there were seven in the appropriate unit
of all over-the-road truckdrivers of the predecessor company, Tennessee Products.
At that time all of these drivers were stationed in Nashville. Sometime between then
and the effective date of the last contract, September 12, 1961, a number of these
drivers were moved to Chattanooga, Tennessee, and since that move some drivers
have been domiciled in and driving out of Chattanooga, and five drivers have been
domiciled in and driving out of Nashville. At the time of the sale of the Nashville
plant to Respondent, Tennessee Products had five men driving out of Chattanooga
and the five involved herein driving out of Nashville. All 10 were supervised out of
Nashville. In effect, then, the sale split the appropriate unit for which the Union
was certified and upon which its recognition was based right down the middle.
Under this circumstance any duty Chemrock had to bargain with the Union would
have to rest upon some base other than "successorship."
Did the existence of the successorship clause in the pending collective agreement
between the Union and the seller place a burden upon the purchaser who had in the
contract of sale specifically not assumed any obligation of the seller, such that the
purchaser's refusal to honor the contract was a refusal to bargain? I believe the
Board has never so held. If such were the law, the legal position of every third-party
successor could be controlled, regardless of all other factors, by a successorship clause
he had no part in making. Upon all the circumstances of this case, I hold that
Chemrock's refusal to honor the successorship clause in the contract was not a viola-
tion of Section 8(a) (5) of the Act.
B Article 1, section 2, states:
Transfer of company title or interest . This agreement shall be binding upon the
parties hereto, their successors , administrators , executors and assigns . In the event
an entire operation or any individual run or runs are sold, ]eased, transferred or taken
over by sale, transfer, lease, assignment, receivership or bankruptcy proceeding, or any
device to evade obligations and rights under this agreement : such operations shall con-
tinue to be subject to the terms and conditions of this agreement for the life thereof.
7 See, for example, N.L.R.B. v. Arthur J. Colten and Abe J. Colman d/b/a Kiddie Kover
Manufacturing Company, 105 F. 2d 179 ( C.A. 6), enfg. 6 NLRB 355; Cruse Motors, Inc.,
105 NLRB 242; N.L.R.B. v. Auto Ventshade, Inc., 276 F 2d 303, 304 (CA. 5), enfg 123
NLRB 451 ; N L R.B. v. Hoppes Manufacturing Company, 170 F. 2d 962 (CA. 6), enfg. 74
NLRB 853; John' Stepp's Friendly Ford, Inc, 141 NLRB 1065; Royal Brand Cutlery
Company, etc., 122 NLRB 901; Diamond National Corporation, 133 NLRB 268; Mitchell
Standard Corporation, 140 NLRB 496, Tennsco Corp, 141 NLRB 296.
8 Piaseckl Aircraft Corp., 123 NLRB 348, enfd 280 F. 2d 575 (C.A. 3), cert denied, 364
U.S. 933. In this case the Board found discriminatory refusal to hire.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor did Chemrock have any duty to offer the drivers the contract wages where,
as here, it was motivated solely by economic considerations.
Several times orally, and in writing, during the several weeks prior to takeover,
and on August 6, the Union requested Chemrock to bargain collectively with it con-
cerning the wages of Chemrock's employees. As prior to August 1, Chemrock had
no drivers, and as after August 1, the Union represented no drivers of Chemrock,
at no time did Chemrock have a duty under Section 8(a)(5) to bargain with the
Union.
The General Counsel contended that by talking with the drivers alone and exclud-
ing a union representative, concerning the offer of employment and the wage offer,
.during the few days before takeover, Chemrock further violated Section 8(a)(5).
As at that time no drivers had been hired for the new corporation, under all the
circumstances of this case, Respondent had no obligation to bargain with the Union
for their wages and working conditions.
The General Counsel contended that by unilaterally changing the wages of the
drivers when it began operations on August 1, Chemrock violated Section 8(a)(5).
As the old drivers of Tennessee Products chose not to work for Chemrock for the
lower wages offered them, Chemrock hired new drivers that day who were hired and
worked for even less than Chemrock had offered the old drivers. It was not con-
tended or shown to the contrary, and I find that these new drivers were not members
of or represented by the Union. As the Union represented no drivers of Chemrock,
the Respondent had no duty to bargain with the Union concerning their wages and
working conditions, and it was not a violation for Chemrock to negotiate wages
individually with the new drivers it hired or to set their wages unilaterally.
RECOMMENDED ORDER
Upon the above facts and conclusions , and upon the entire record in the case
considered as a whole , I find and hold that Respondent has not violated the Act, and
I recommend that the complaint be dismissed in its entirety.
Iron Workers Local 433, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO [Kaiser
Steel Corporation ] and Darwin W. Nyman
Iron Workers Local 433, International Association of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO [Pro-
gressive Transportation Co.] and Darwin W. Nyman
Iron Workers Local 433, International Association of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO [Gresch-
ner Construction Co.] and Walter Clarence Orcutt. Cases Nos.
21-CB-2219,21-CB-2294, and 21-CB-2295. March, 24, 1965
DECISION AND ORDER
On January 5, 1965, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be dismissed, as
set forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial Examiner's
Decision and a brief in support thereof.
151 NLRB No. 113.