Cincinnati Cordage and Paper Co.

National Labor Relations Board - Board Decisions

Feb 28, 1963

141 N.L.R.B. 72 (N.L.R.B. 1963)

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cincinnati Cordage and Paper Company and Chauffeurs, Team-
sters and Helpers , Local Union No. 621 . Case No. 10-C-4-5014.
February 08, 1963
DECISION AND ORDER
On October 12, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
MEMBER RODGERS, concurring :
I agree with my colleagues, and for the reasons stated by the
Trial Examiner, that Respondent violated Section 8(a) (1) and (3)
of the Act. In light of Respondent's demonstrated hostility to the
principles of collective bargaining as evidenced by its unlawful at-
tempts to persuade its employees to bargain directly with it and by
its discharge of its employees for engaging in a strike, I concur in
the finding that Respondent did not bargain in good faith with the
Union, and it thereby violated Section 8(a) (5).
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed May 15, 1962,1 a complaint issued July 25, and an answer
filed August 1, this case was heard in Knoxville, Tennessee , on September 5, 1962,
before Trial Examiner Frederick U. Reel. At issue are whether Respondent fulfilled
its statutory obligation to bargain in good faith, wrongfully discharged six employees
for engaging in a strike called when the bargaining proved fruitless , and engaged
in unlawful interrogations or promises directed at its employees ' union activities.
Following the hearing the parties waived oral argument, but briefs were thereafter
All dates herein refer to 1962 except where otherwise specified.
141 NLRB No, 7.
CINCINNATI CORDAGE AND PAPER COMPANY 73
filed by General Counsel and by Respondent, and have been carefully considered.
Upon such consideration, and upon the entire record in the case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
The following basic facts are established by the pleadings or by stipulation:
Respondent, an Ohio corporation with its principal office in Cincinnnati, Ohio, main-
tains a warehouse and office in Knoxville, Tennessee, where it is egaged in the
wholesaling of paper products and twine, and annually purchases and receives over
$800,000 worth of such products from outside the State of Tennessee. Respondent
is engaged in commerce within the meaning of the Act. The Charging Party, herein
called the Union, is a labor organization within the meaning of the Act, and on
August 19, 1960, as the result of its victory in an election conducted by the Board's
Regional Office, became the certified bargaining representative of the truckdrivers,
warehousemen, and shipping clerk employed at Respondent's Knoxville warehouse.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 1962 bargaining negotiations
Following the Union's certification, the Respondent and the Union entered
into bargaining negotiations which culminated February 1, 1961, in the execution
of a 1-year contract, with provision for automatic renewal for 1 year in the absence
of 60 days' notice. The following November, the Union, pursuant to the terms of
the contract, gave Respondent notice of the Union's desire to open the contract for
modification. Bargaining sessions were held January 24, February 9 and 23, March 8,
and April 15, attended by several representatives of each of the parties. In general,
the testimony as to what occurred at those meetings is not in dispute, although the
recollections of the witnesses differed somewhat as to what statements or proposals
were made at what meeting. In essence, the Union proposed to change the clauses
dealing with procedure in filling job vacancies, with the rights and duties of union
stewards, and possibly with work schedules. The Union also proposed a 3-year
contract, double time for holidays, longer vacations, a wage increase of 25 cents per
hour in each of the 3 years, and a clause expressly recognizing the right of an
employee not to cross a picket line. The Union also proposed elimination of an
existing clause giving the Company the right to raise the wages of any employee
without bargaining with the Union.
The Company in turn urged a 1-year contract which would include provisions
against employees leaving work without permission, requiring employees to notify
the Company when ill, making slander of the Company a dischargeable offense,
and clarifying the fact that the contract did not guarantee 5 days of work each week.
During the course of the five bargaining sessions, the Union modified its wage
proposal to reduce the proposed increase in the second and third years to 20 and 15
cents, respectively. On one occasion it suggested a 24-cent rather than a 25-cent
increase. It also made a minor and insubstantial modification of its vacation demand,
and offered to retain the steward's clause of the existing contract.
During the course of negotiations, agreement was reached on some minor matters,
such as notification in the event of sickness, but little progress was made as to the
major areas of disagreement. Of particular importance to the parties were the
picket line clause and the wage and vacation proposals As to the picket line clause,
the Company took the position that it had a contractual obligation to furnish paper
to its customers and also that it did not want to take "the responsibility of stopping a
plant's production because we did not get the containers to them . . ." or "to accept
the responsibility as to whether a picket line was a valid one or recognized one or
not." The Union's demand was for a clause stating that refusal to cross a picket line
(whether or not the picket line was lawfully established and maintained) was not
a dischargeable offense. At the last meeting, the Union asked whether, if it withdrew
its demand for a picket line clause, the Company would make a counterproposal with
respect to other demands of the Union (presumably on money items), but the Com-
pany declined to do so.
As to vacations, the previous contract provided in essence for 2 weeks' vacation
for employees with over 3 years with the Company. The Union proposed an addi-
tional week for employees with over 10 or 11 years, and a fourth week for employees
with over 18 years' service. Among the employee witnesses at the hearing, Poe,
Whitaker, Carter, and Slimp had 18, 17, 15, and 13 years of service, respectively.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent took the view that the vacation clause in the old contract was adequate.
With respect to wages, the Company advised the Union that the Company could
not grant a wage increase and "stay competitive." This view was expressed at each
of the bargaining sessions beginning with that of February 9, up to and including
the last meeting on April 5, when the Union "wanted to see if the Company would
reconsider or whether there was any possible way to get any kind of increase ...."
The Company told the Union that the Company was not pleading poverty or inability
to pay, but that it felt its wage scale was adequate as compared with its competitors
and with the general wage scale in the area. The Company also continued to insist
that the new contract retain the provision giving the Company the right to raise
wages above the scale set forth in the contract.
On April 17, union counsel wrote company counsel attributing to the Company
the position that it could not increase its costs and stay in business and requesting
that the Company make available its books showing its financial status. Company
counsel replied the following day stating that the Company did not take the position
it was not able to raise wages and did not "plead poverty." In the letter the Company
restated its position that its "wage scale is now above comparable industries in this
location and to get further out of line would have a tendency to make [thel Com-
pany non-competitive." Accordingly, the Company declined to furnish a financial
statement.
During the course of the bargaining the Company made no counterproposals with
respect to wages except to put forward the existing wage scale. At the bearing
J. A. Anderson, who was in charge of the Knoxville warehouse, testified that the
Union's "demands were more than we thought were justifiable, and frankly I thought
we were negotiating for a new contract and we might be offered something sometime
that would be acceptable . Anderson further testified that it was not the
Company's flat position that there would not be any wage increase; "we just refused
the offer that had been made." He testified that some more modest increase than
the Union demanded "might have been [in order] had we continued our negotiations."
Anderson further testified, however, that during the entire 3 months of negotiations,
the suggestion that some wage increase might be acceptable if the Union's demand
was less than 25 cents an hour "never came up."
B. The strike and the discharge of the strikers
On April 3, the union members voted to strike in protest of the failure of the
bargaining negotiations, and on May 1, six of the seven employees in the bargaining
unit went out on a strike which continued without any offer on their part to return
to work, at least until the date of the hearing. Replacements for the six were hired,
one at a time, on May 11, 14, 16, 19, 22, and 28.
On May 2, the Company sent each of the strikers the following letter:
As you have left your job, this letter is to inform you that unless you return to
your job by Monday, May 7th, you will be replaced after the above date.
On May 8, the Company sent to each of the strikers a form furnished by the Ten-
nessee Department of Employment Security captioned "Separation Notice," and
reciting that the Company "ceased to employ" the employee in question on April 30,
1962. The space on the form for "Reason for Separation" was left blank, but after
"Detailed Explanation" the Company had written "Refused to work."
Respondent's counsel testified that the separation notices were issued pursuant to
State law which requires such notices when "a man under any condition . . . leaves
the employment of a company " He further testified that for purposes of a profit-
sharing fund the men "left the employment of the Company" on "the date of the
walkout." According to his testimony, the men "would have been rehired" had they
applied before being replaced, and they would "not necessarily" have been regarded
as mere applicants for employment at that time. Plant Manager Anderson testified
that if the strikers "had come back a few days later [than the May 7 deadline] if we
hadn't replaced them, I am sure we would have taken them back." It further appears
that the Company has a profit-sharing plan and that these employees are continuing
to earn interest on any money they have in the fund and continue to receive notices
pertaining thereto although their right to any further portion of the profits ended
when they went on strike. There is some suggestion in the record that employees
who are "discharged or fired" no longer continue to draw interest in the plan.
C. Other alleged acts of interference, restraint, and coercion
The six strikers, called as witnesses by the General Counsel, testified to various
statements allegedly made by Plant Manager Anderson and Warehouse Foreman
CINCINNATI CORDAGE AND PAPER COMPANY 75
Patterson; Anderson and Patterson denied making the remarks in question. The
evidence with respect thereto may be summarized as follows:
Bernard Poe, a striker who had been in Respondent's employ since 1944, testified
that in January, Anderson called him into the office, told him the Union had done
nothing for the employees, that the employees "would be better off to bargain with
him" directly, and that he (Anderson) would like to make Poe foreman but could
not do that as long as the employees had a union. According to Poe, Anderson also
asked him "if the boys were determined to stay in the Union," and when Poe replied
in the affirmative, Anderson said that the employees did not need a union, "that we
were a big happy family."
Jack Shmp, a striker who had been with the Company since 1949, tetstified that in
November 1961, Patterson told him to take employee "Hurst and one of the other
employees in to see Mr. Anderson about the Union" as they "could bargain better
with Mr. Anderson than we could the Union."
Daniel Whitaker, a striker who had been with the Company since 1945, testified
that he overheard part of Slimp's conversation with Patterson, and that Patterson
told Slimp "that he should take some of the boys and go in and talk to Mr. Anderson,
that he could get a better bargain, better deal with Mr. Anderson than he could with
the Union of negotiating."
William Teeters, a striker with 5 years' service with Respondent, testified that on
several occasions in January, Patterson told him that the employees "didn't benefit
any by belonging to the Union" and added that Teeters "should go in and talk to Mr.
Anderson and take some of the other boys" as they "could get a better deal out of
Mr. Anderson than [they] could out of the Union."
Joe Carter, a striker who had been with the Company for 15 years, testified that
in mid-November 1961, Patterson told him that "when we got the Union out [Patter-
son] would let [Carter] cut paper," a better job than that Carter held.
Howard Hurst, a striker with 3 years' service with the Company, testified that in
"the latter part of '61" Patterson told him that he could "get a better deal out of
Mr. Anderson . . . if you go in and talk with him individually, rather than have a
union represent you." Hurst also testified that on one occasion in April, shortly
before the strike, he had been absent from work, as he is a minister and had to con-
duct a funeral. According to Hurst, on the following day, Patterson expressed regret
at being unable to pay Hurst for the day he missed but added that "we can't as long
as we have a union." Hurst quoted Patterson as saying , "I have discussed this with
Mr. Anderson and he said as long as we have a union that we can't do any favors
for anybody or pay you for such days off." Hurst also attributed to Patterson the
statement that "I know some of you boys need a raise, even more than the quarter
you are asking for" but that "we cannot give you any more money as long as we
have a union because Mr. Anderson will not be forced into anything." Hurst further
testified that this was "one of the times" that Patterson said, "You can get more out
of Mr. Anderson by talking to him individually than you can if you have a union
to represent you." Finally Hurst testified that on another occasion, unspecified as
to date, Patterson expressed surprise to Hurst and to employee Teeters that, as
ministers, they "could belong to an organization like the Teamsters Union."
Anderson testified that he had over a period of years discussed with Poe the
possibility of the latter's advancement to foreman, but denied ever "offering him any
consideration for any advancement or any condition whatsoever concerning the
Union." Anderson also denied ever discussing the foreman matter with Poe after
the advent of the Union. According to Anderson's testimony, he told Patterson not
to discuss union matters with the employees, and he never told Patterson to tell the
employees to negotiate directly with Anderson. Patterson expressly denied the
statements attributed to him by Whitaker, Slimp, Teeters, Carter, and Hurst.
In December 1961, Anderson spoke to the assembled employees, explaining that
the then current contract was being renegotiated, but that the "cancelling of the con-
tract did not affect the men's jobs in any way regarding their union membership."
D. Concluding findings
1. The violation of Section 8(a)(3) and (1)
Under settled law, an employer may replace economic strikers but he may not dis-
charge them for going on strike. Likewise settled is the proposition that unfair labor
practice strikers, as distinguished from economic strikers, are entitled to reinstatement
even if replaced. If the six strikers in this case were unfair labor practice strikers
(i.e., if Respondent's conduct amounted to a refusal to bargain in good faith), the
strikers are entitled to reinstatement upon their application notwithstanding their
having been replaced. In short, if the Respondent violated Section 8(a) (5) and (1)
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its threat to replace the strikers violated Section 8(a) (1) and its purported discharge
or replacement of the strikers violated Section 8 (a) (3) and (1).
As will appear below, I find the violation of Section 8(a) (5), and if I am correct
in that, the discussion of the strikers' status could end here. To avoid remand or
other proceedings in the event my finding as to the lack of good-faith bargaining
is overturned, however, I shall assume arguendo that the strikers were economic,
rather than unfair labor practice, strikers. Even on that hypothesis, I find that Re-
spondent violated Section 8(a)(3) and (1), for-although free to replace the strikers
and to notify them of an intent to do so-Respondent in issuing the separation notices
effectively (and unlawfully) discharged the employees before replacing them.
At the hearing Respondent endeavored to establish that the separation notices
did not accomplish discharges. This attempt is in the teeth of the language of the
notice, and indeed is contrary to the testimony of company witnesses who spoke of
the possibility of "rehire" if the men had returned between May 7 and the date re-
placements were hired, and who gave as their understanding that the men had left
their employment as of the date the strike began. Moreover, the timing of the
notices-i.e., their issuance immediately after the expiration of the May 7 deadline-
suggests that the Company intended them to accomplish discharge. The separation
notice "would logically lead an employee to believe his tenure had been terminated."
N.L.R.B. v. Cement Masons Local No. 555, Operative Plasterers and Cement Masons
International, AFL (Anderson-Westphal Co.), 225 F. 2d 168, 172 (C.A. 9). Con-
trast Shopmen's Local Union No. 733 et al. (Kerrigan Iron Works, Inc.) V. N.L.R.B.,
219 F. 2d 874, 875 (C.A. 6), cert. denied 350 U.S. 835, affg., 108 NLRB 933,
where it was stipulated that after the letter setting a return date (comparable to
the May 2 letter in this case) and predicting termination in the event of failure
to return, "no other termination notices were issued to striking employees who did
not return to work." See also N.L R.B. v. United States Cold Storage Corporation,
203 F. 2d 924, 925-927 (C.A. 5), cert. denied 346 U.S. 818; N.L.R.B. v. David G.
Leach and Doyle H. Wallace d/bla Brookville Glove Company, 234 F. 2d 400 (C.A.
3); N.L.R.B. v. Clearfield Cheese Co. Inc., 213 F. 2d 70, 74 (C.A. 3).
Respondent argues that the separation notices were issued in conformity with
section 102(a) of the regulations of the State department of employment security
which provides that "Whenever a worker is separated from his employment for an
indefinite period or an expected duration of seven days or more his employer shall,
within twenty-four hours after such separation, furnish to such worker a Separation
Notice (Form DES-230.11A) setting forth the information required on such form."
I note in passing that although the form notice in evidence was of a type in use at
least since June 1951, it was apparently not used in the Kerrigan case, supra, where
the strike occurred in Nashville, Tennessee, in 1952. More important, the language
of the regulation does not appear applicable to strikes and strikers, and indeed Re-
spondent did not construe the regulation as applying until after the deadline had
passed which Respondent had put on their voluntary return. If Respondent had
read the regulation as applying to strikers, the form would have been sent within 24
hours of the onset of the strike, which was plainly "for an indefinite period " On the
record as a whole, I find that Respondent issued the separation notices because in
its view the men had lost their employment by staying out beyond the May 7 dead-
line. Such action, amounting to a discharge, or attempted discharge, of the strikers
violated Section 8(a)(1) and (3) of the Act, even if they be viewed as economic
strikers. As they were, in my view, unfair labor practice strikers who could not
lawfully be permanently replaced during the strike, the letter of May 2 also violated
those provisions of the Act.
2. The violation of Section 8(a)(5) and (1)
I find on the basis of the entire record that Respondent did not fulfill its obliga-
tion to bargain with the Union in good faith. This want of good faith is apparent
in the Company's actions and attitude with respect to the Union's wage demands.
Under the law the Company is not obligated to grant the Union's wage demands or
to offer any wage increase at all. The Company is required to meet and bargain in
good faith and to make an honest effort to reach agreement. If the Company in
good faith insists that there be no wage increase, it is within its statutory rights.
But in this case the Company, although it rejected every union proposal and although
it made no counterproposal, harbored within its own breast the view that some
wage increase might have been in order. Its general manager, who attended the
bargaining sessions , testified that the Company made no wage proposal "because the
demands were more than we thought were justifiable and frankly I thought we were
negotiating for a new contract and we might be offered something sometime that
would be acceptable . . . ... Again he testified that it was not the Company's posi-
CINCINNATI CORDAGE AND PAPER COMPANY 77
tion that "there would possibly be no increase ; we just refused the offer that had
been made." The following colloquy then ensued:
TRIAL EXAMINER: Your position, Mr. Anderson, some more modest wage
increase would have been in order?
The WITNESS: It might have been had we continued our negotiations.
TRIAL EXAMINER: You were negotiating for the better part of three months.
During the course of this time did you ever with counsel reach the conclusion
that possibly some wage increase might be acceptable if the Union's demand
was less than 25¢?
The WITNESS: I don't think we did.
TRIAL EXAMINER: It never came up?
The WITNESS: I don't think it came up.
The Company in its conduct of the negotiations led the Union to believe that the
Company would grant no wage increase . The testimony summarized above indicates
that the Company misled the Union. It is not "bargaining in good faith" for one
party to sit tight at negotiations and wait for the other party to "push the right
button." The Company was not required to make a concession merely to escape
the onus of a finding of bad faith. But if, as was the case here, one party is prepared
to make a concession , it is evidence of bad faith if he withholds that fact to the
extent of permitting negotiations to founder and a strike to ensue, without ever
imparting this possibility to the other party. In this case at the parties ' last meeting,
after the strike vote had been taken but over 2 weeks before the walkout, the Union
asked "if the Company would reconsider or whether there was any possible way to
get any kind of increase." For the Company to refuse at this time to divulge
that it would consider a more modest demand than had been theretofore advanced,
and for it to state to the Union a position which the plant manager later admitted
on the witness stand was a falsity-namely, that it could not grant any increase
because of competition-establishes that it was not bargaining in good faith.
The finding of want of good faith is further supported by the fact, as found infra,
that both Anderson and Patterson encouraged employees to abandon the Union and
bargain individually, thereby evidencing a desire to avoid bargaining with the Union.
Under all the circumstances I find a want of good faith further evidenced by the
Company's refusal to supply the financial data requested by the Union. The Company
contends that as it had not pled inability to pay an increase on grounds of poverty
but solely on the ground that it could not stay competitive, it was not obligated to
give the Union data as to the Company's financial status. It may well be that such
data would not have enabled the Union to detect what the Company has since con-
ceded-that a more modest increase than that demanded might have been in order.
On the other hand the Union might have been able, had the Company furnished
data, to show the Company that it could absorb a wage increase and still stay
competitive. It is also possible that upon receiving pertinent financial data the Union
would have abandoned its demands or scaled them down to a point which would
have appeared more reasonable to the Company. The Company's argument that it
was not pleading inability to pay but only that it could not "stay competitive"
appears to me to be self-contradictory, for if a wage increase would have that effect,
it would seem to follow that the Company was financially unable to grant it. In
short the basic principles underlying N.L.R B. v. Truitt Mfg. Co., 351 U.S. 149, are
not any the less applicable here because the employer expressed the view that wage
increases would lead to impoverishment rather than the view that such increases
were precluded by present impoverishment. See also Tennessee Coal & Iron
Division, United States Steel Corporation, 122 NLRB 1519, 1526-1527.
3. Other violations of Section 8(a) (1)
I credit Poe's testimony that Anderson said the employees would be better off to
bargain directly with him rather than through the Union. I further credit the
testimony of Slimp, Whitaker, and Teeters that Patterson similarly stated that the
employees would get better results by bargaining directly with Anderson rather
than through the Union. Hurst's similar testimony with respect to a conversation
date in 1961 is credited, but I base no finding upon it as it may well have referred
to a statement over 6 months prior to the filing of the charge. I do not credit
Poe's testimony that Anderson conditioned Poe's becoming a foreman on the em-
employees' abandonment of the Union, and I do not credit Carter's testimony of his
conversation with Patterson, summarized above. Finally, I credit Hurst's testimony
that Patterson said the employees could not get a raise as long as they had a union
because of Anderson's attitude.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing resolutions of credibility have not been easy to make, and it is even
more difficult to set forth the factors which impel me to them. Primarily they are
based on the demeanor of the witnesses as I observed them, and-in some instances-
on what I regard as the inherent probability or improbability of the situation (e.g.,
Carter's silence in the face of Patterson's alleged remark about promoting Carter
"when we get the Union out").
Anderson's statement to Poe that the employees would be better off bargaining
directly with him than through the Union is plainly illegal as a promise of benefit
for abandoning their Section 7 right to representation. Patterson's similar statement
to several employees that they would do better dealing with Anderson directly presents
a somewhat closer question as it might be argued that Patterson was merely express-
ing an opinion , within the meaning of Section 8(c), as to where the employees'
best interest lay. The employees, however, would be likely to attribute to Patterson,
who is concededly a supervisor within the meaning of the Act, and who was second
only to Anderson in command in the warehouse, an authoritative expression of
management views. When a high-ranking supervisor tells employees that they will
get better wages and working conditions if they abandon the Union, this is a
sufficient "promise of benefit" to be outside the ambit of protected utterance under
Section 8(c) and constitutes interference within Section 7 rights. Patterson's further
statement to Hurst that the employees could not get a wage increase as long as they
had a union contains no undertone of "views, argument or opinion," and plainly
violated Section 8 (a) (1) .
Respondent urged that Anderson's assurances in the December 1961 meeting that
a new contract was being negotiated would vitiate any unlawful utterances by Patter-
son the preceding month. Aside from the fact that Anderson's remarks, as he
recalled them, would not have had this effect, the record shows that both Anderson
and Patterson engaged in unlawful conduct after the December meeting. Nor,
particularly in view of the small size of the unit, can I join in Respondent's charac-
terization of the conduct found violative of Section 8 (a) (1) as at most "a few isolated
remarks."
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, as found above, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
4 By discharging Joe Carter, Howard Hurst, Bernard Poe, Jack Slimp, William D.
Teeters, and Daniel F. Whitaker for having engaged in a strike, Respondent has en-
gaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) and
Section 2(6) and (7) of the Act.
5. By failing to bargain in good faith with the Union as exclusive bargaining rep-
resentative of its Knoxville truckdrivers, warehousemen, and shipping clerk, Respond-
ent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend the customary cease-and-desist order and the affirmative relief
which is conventionally ordered in cases of this nature. More specifically I shall rec-
ommend an order directing reinstatement of the strikers upon their application with
backpay to run only from the time, if any, between 5 days after the date of applica-
tion for reinstatement and the granting thereof. See Liberty Electronics Corp., et al.,
138 NLRB 1074 Any backpay shall be computed in accordance with the formula
set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716 The recommended bargaining order includes a provision
adapted from the Truitt case, supra, directing the Company on request to supply such
data as it relies on to substantiate its position with respect to its position that it cannot
grant a wage increase and "stay competitive."
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case. I recommend that the Respondent, Cincinnati Cordage
and Paper Company, its officers. agents, successors, and assigns, shall-
1 Cease and desist from
(a) Advising its employees that they would derive greater benefits from negotiat-
ing directly with management rather than through a collective-bargaining representa-
tive
CINCINNATI CORDAGE AND PAPER COMPANY 79
(b) Discharging or otherwise discriminating against employees because they en-
gaged in lawful strike activity or other activity on behalf of Chauffeurs, Teamsters
and Helpers, Local Union No. 621.
(c) Refusing to bargain in good faith with Chauffeurs, Teamsters and Helpers,
Local Union No. 621, as the exclusive bargaining representative of the truckdrivers,
warehousemen, and shipping clerk (excluding office clerical employees, salesmen,
supervisors, professional employees, and guards) employed at the Knoxville ware-
house.
(d) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Upon application, offer to each of the six employees who went on strike on or
about May 1, 1962, reinstatement to their former or substantially equivalent posi-
tions, and in the event of failure to do so within 5 days after their respective applica-
tions, make them whole in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Upon request, bargain collectively with Chauffeurs, Teamsters and Helpers,
Local Union No. 621, as the exclusive representative of the truckdrivers, warehouse-
men, and shipping clerk (excluding office clerical employees, salesmen supervisors,
professional employees, and guards) employed at the Knoxville warehouse, with re-
spect to all terms and conditions of employment, and embody in a signed agreement
any understanding reached.
(c) Upon request, furnish Chauffeurs, Teamsters and Helpers, Local Union No.
621, with such statistical and other information as will substantiate Respondent's
position of its inability to pay the requested wage increase and stay competitive, and
will enable the aforesaid Union to discharge its functions as the statutory representa-
tive of the Knoxville employees described above.
(d) Post at its warehouse in Knoxville, Tennessee, copies of the attached notice
marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Direc-
tor for the Tenth Region, shall, after being signed by a representative of the Respond-
ent, be posted by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notice is not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for the Tenth Region, in writing, within 20
days from the date of this Intermediate Report and Recommended Order, what steps
the Respondent has taken to comply herewith .3
2 In the event that this Recommended Order be adopted by the Board, the words "As
Ordered by" shall be substituted for the words "As Recommended by a Trial Examiner"
in the notice. In the further event that the Board's Order be enforced by a decree of a
United States Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be inserted immediately following "As Ordered by."
' In the event that this Recommended Order be adopted by the Board, this provision
,hall be modified to read "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board and
in order to conduct our labor relations as required by the National Labor Relations
Act, we notify our employees that:
WE WILL NOT discharge or take any other action against any employee because
he engages in a lawful strike or other activity on behalf of Chauffeurs, Teamsters
and Helpers, Local Union No. 621.
WE WILL offer the following employees their old jobs back, if they ask for
them, without loss of any rights or privileges they had in such jobs:
Joe Carter Jack Slimp
Howard Hurst William D. Teeters
Bernard Poe Daniel F. Whitaker
WE WILL bargain collectively, upon request, with Chauffeurs, Teamsters and
Helpers, Local Union No. 621, as the bargaining representative of our Knoxville
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truckdrivers , warehousemen , and shipping clerk , with respect to wages, hours,
and other terms and conditions of employment, and, if agreement is reached,
sign a contract with that Union.
WE WILL, upon request, furnish that Union with the financial and other data
on which we rely in support of positions we take in opposition to wage increases
proposed by the Union.
WE WILL NOT advise our employees that they can obtain better working con-
ditions by bargaining directly with us rather than through their Union.
CINCINNATI CORDAGE AND PAPER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above -named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act 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, 525
Peachtree-Seventh Building , 50 Seventh Street NE ., Atlanta 23, Georgia , Telephone
No. Trinity 6-3311 , Extension 5357 , if they have any questions concerning this
notice or compliance with its provisions.
Southern Coach & Body Company, Inc. and International Asso-
ciation of Machinists , AFL-CIO. Cases Nos. 15-CA-2015 and
15-CA-058. March 1, 1963
DECISION AND ORDER
On October 5, 1962, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the General Counsel and the Respondent filed
exceptions to the Intermediate Report with supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Rodgers, Fanning, and
Brown].
1 The Respondent has moved to reopen the record for the purpose of taking additional
testimony . This proposed new evidence contains an affidavit from the manager of the
Respondent in which he states that on or about September 5, 1962, while acting in his
official capacity , he received a petition containing the valid signatures of more than
70 percent of the then 168 employees in the production and maintenance unit previously
determined appropriate by the Board in Case No . 15-RC-2212 . The Charging Party,
hereinafter called the Union , was certified by the Board as the representative of this
unit on May 26, 1961 . The aforesaid petition purports to show that a substantial majority
of the employees in the unit did not wish to be represented by the Union , and that a
question did in fact exist as to the majority status of the Union . It is clear that the
petition in question was not received by Respondent until almost 6 months after the issue
of loss of majority was raised by Respondent in its meeting with the Union on March 19,
1962 . Therefore, we find that the aforesaid affidavit can be given no weight in our con-
sideration of the instant cases. Accordingly , the Respondent 's motion is hereby denied.
141 NLRB No. 9.