Cooperdale Dairy Co., Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1964

146 N.L.R.B. 893 (N.L.R.B. 1964)

FAIRBANKS DAIRY, DIVISION OF COOPERDALE DAIRY CO. 893
CONCLUSIONS OF LAw
1. Meyers Plumbing, Joe Stupic, Barington, Inc., Morrison & Hill,
Inc., Anthony Scheeringa and Harold Zeilenga, d/b/a Scheeringa &
Zeilinga, Hatler Concrete Construction, Indiana Laminated Wall
Corp., Consumers Roofing, Inc., and Twin City Masonry, are Em-
ployers engaged in commerce or in an industry affecting commerce
within the meaning of Sections 2(6) and (7) and 8(b) (4) of the Act.
2. Plumbers Local Union No. 307 is a labor organization within the
meaning of Section 2 (5) of the Act.
3. Plumbers Local Union No. 307 has not engaged in unfair labor
practices within the meaning of Section 8(b) (4) (i) and (ii) (B)
and Section 2(6) and (7) of the National Labor Relations Act, as
amended.
[The Board dismissed the complaint.]
Fairbanks Dairy, Division of Cooperdale Dairy Company, Inc.
and Dairy and Bakery Salesmen and Dairy Employees Local
No. 316, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
Cases Nos. 3-CA-2011 and 3-CA-2067. April 17, 1964
DECISION AND ORDER
On December 18, 1963, Trial Examiner Paul Bisgyer issued his
Decision 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 Trial Examiner's De-
cision. Thereafter, the General Counsel and the Charging Party
filed exceptions to the Decision with briefs in support thereof. The
Respondent filed no exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Decision, the
exceptions and the briefs, and the entire record, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.'
1 The General Counsel and the Charging Party excepted to the remedy recommendations
of the Trial Examiner , which exceptions we find to be without merit . In the absence of
exceptions the Board also adopts pro forma the Trial Examiner ' s other findings and
recommendations.
146 NLRB No. 111.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-ORDER2
The. Board adopts as, its Order the Recommended Order of the
Trial Examiner.'
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that the Respondent Fairbanks Dairy, Division of Cooperdale Dairy Company, Inc.,
its officers, agents, successors, and assigns, shall:
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all the parties represented, was heard before Trial Examiner
Paul Bisgyer on September 11 and 12, 1963, in Syracuse, New York, on the amended
complaint of the General Counsel,' and the amended answer of Fairbanks Dairy,
Division of Cooperdale Dairy Company, Inc., herein called the Respondent. The
issues thereby raised and litigated were whether the Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act, as amended, (1) by untimely
withdrawing from contract negotiations between Dairy and Bakery Salesmen and
Dairy Employees Local No. 316, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union,
and a group of dairy companies in the Syracuse area, land thereafter refusing to
execute the agreement reached therein; (2) by bargaining directly and individually
with employees in disregard of their exclusive bargaining representative; and (3)
by unilaterally converting into independent contractor operations certain milk routes
previously serviced by driver-salesmen employees covered by the parties' 1961-63
collective-bargaining agreement and leasing them to three individuals,2 splitting
and leasing parts of another route, and laying off employee Robert Holliday for
the purpose of splitting and leasing his wholesale delivery route, all without first
notifying the Union and discussing the contemplated changes with it. At the
close of the hearing the parties waived oral argument. Although all the parties were
afforded an opportunity to file briefs, only the General Counsel and the Respondent
have done so. Motions to dismiss the amended complaint, on which ruling was re-
served at the hearing, are hereby denied in accordance with my findings and con-
clusions set forth below.'
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Fairbanks Dairy, which has its principal office and dairy plant in Syracuse, New
York, is engaged in the manufacture, sale, and distribution of milk and milk by-
products. It is a wholly owned, unincorporated division of Cooperdale Dairy Com-
pany, Inc., a New York corporation, and is the only Cooperdale operation involved
herein. During the past year, Cooperdale, in the course and conduct of its business,
sold and distributed products valued in excess of $500,000. During the same period,
it directly shipped products valued in excess of $50,000 from its place of business
in New York to points outside that State and received from out-of-State sources ship-
ments of goods valued in excess of $50,000.
Jurisdiction is conceded and I find that the Respondent is, and has been at all
times material, engaged in commerce within the meaning of Section 2(6) and (7)
of the Act and that it will effectuate statutory policies to assert jurisdiction herein.
1 The original charge in Case No. 3-CA-2011 was duly filed and served on the Respond-
ent on January 21, 1963. The amended charge in that case was duly filed and served on
the Respondent on January 30 and February 1, 3963, respectively. The original and
amended charges in Case No. 3-CA-2067 were duly filed and served on the Respondent on
May 6 and July 17, 1963, respectively.
2 Because of their manifest interest in the disposition of the issue of the leasing of the
routes, the lessees, Stanley Pigula, Jr., Edward H. Phillips, and James Reilly, were per-
mitted to intervene through their attorney and to participate in this proceeding to the
extent of their interest.
FAIRBANKS DAIRY, DIVISION OF COOPERDALE DAIRY CO. 895
II. THE-LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent's refusal to execute the agreement negotiated in 1963
1. Bargaining history; the Respondent's recognition of the Union
For a number of years prior to 1959 and continuing through the 1963 negotiations
the Union has bargained collectively with a group of dairy companies in the
Syracuse area? All these negotiations were conducted substantially in the same
manner and resulted in the execution of successive contracts, with each company
signing separate but identical agreements covering its own rank-and-file employees.
About May 1959, Cooperdale purchased the Respondent Fairbanks Dairy which
apparently had had no previous bargaining dealings with the Union. The follow-
ing November, however, in consideration of the Union's withdrawal of a representa-
tion petition it had filed with the New York State Labor Relations Board, the
Respondent signed an agreement recognizing the Union as the exclusive bargaining
representative of all its nonsupervisory employees. Thereafter, in January 1960,
the Respondent and the Union executed a contract identical in content with that
which the Union had previously negotiated with the dairy companies mentioned
above, effective from May 1, 1959, until April 30, 1961.
A few months before the expiration of the 1959 contract and pursuant to its
terms all the dairy company parties to that agreement, including the Respondent,
gave the Union joint written notice of their desire to negotiate a new contract to
succeed the expiring one. Thereafter, the Union met with representatives of the
various companies in a number of bargaining sessions . Representing the Respondent
was its general manager, Walter J. Nellis, and attorney, LaVerne F. O'Dell, who
later was retained by the other companies to protect their interests as well. O'Dell
took an active part in the ensuing negotiations along the Curtis Brown, an official
of Crowley Netherland Corporation, who company representatives had also selected
to act as spokesman for the group. Company representatives in attendance at the
negotiations, however, were not precluded from entering into the discussions. For
the obvious purpose of presenting a united front, company representatives held
private meetings to consider the Union's proposals and to prepare counterproposals?
The foregoing negotiations produced a 2-year agreement which became effective
on May 1, 1961, for a term ending April 30, 1963. Following custom, each com-
pany signed separate but identical contracts with the Union .5
2. The 1963 contract negotiations
Anticipating the expiration of their then existing agreement on April 30, 1963,
the signatory companies, including the Respondent, conferred among themselves with
respect to the steps to be taken to renegotiate their contract. The group decided to
employ counsel and Irving Markovich was retained. On February 28, 1963, at the
latter's suggestion, a joint notice signed by all the companies requesting negotiations
for a new contract was sent to the Union. Thereafter, a series of 10 bargaining
3It appears that, except for the Respondent whose participation in the joint negotiations
began in 1961, as discussed infra, the same companies who engaged in the earlier negotia-
tions signed the last contract in 1963, which is the subject of the alleged unfair labor
practice charged in Case No. 3-CA-2067. These companies are: Crowley's Netherland
Corporation, Syracuse Seneca Dairy Corporation, South Side Dairy Corporation, and
Dairymen's League Cooperative Association, Inc. The record also indicates that other
dairy companies had participated in the earlier contract negotiations but subsequently
merged in, or otherwise became part of, a 1963 contracting company
* During these negotiations the Union proposed a clause prohibiting the leasing of routes
to independent contractors. This proposal was rejected by the companies and no reference
to the subject was made in the agreement ultimately executed
6 This contract describes the unit represented by the Union as "All employees in the
classifications covered by this agreement; excluded are the following classifications.
superintendent, assistant superintendent, engineers, solicitors, office help and collectors."
The specific classifications listed in the agreement are route salesmen, route foremen, route
pullers , inspectors, general dairy workers, group heads, regular relief men, garage service-
men, garage service helpers, and garage attendants.
744-670-65-vol. 146--58
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sessions beginning on March 22 and running through May 1,6 were held between
the union and company representatives. The Respondent's General Manager Nellis
attended many of these meetings . ' As was done in connection with prior contract
negotiations, a spokesman was chosen, this time Kenneth Leach, the president of
Crowley Netherland Corporation, who together with Attorney Markovich presented
the companies' proposals and positions. Also following past practice, both before
and during the period of negotiations , company representatives conferred privately
to evaluate the Union's proposals and to formulate their own demands which, after
thorough discussion among themselves, were then submitted to the Union. Nellis,
and on one occasion before the first negotiating session, the Respondent's secretary,
Joseph Blum , participated in these private conferences?
Notwithstanding the efforts of the negotiators, the parties were unable to reach
full accord on all the terms of a new contract to supersede the one expiring on
April 30. As a result, the employees of all the companies voted that day to go on
strike at midnight. At the appointed time, virtually all employees, numbering some
400 represented by the Union, struck their respective employers. The only ones who
did not were 7 out of the Respondent's 16 employees and a few employees of other
companies who were selected to service hospitals and schools. The strike, however,
did not last long. About 7 o'clock in the evening of May 1, the parties settled their
differences and agreed upon the terms of a new contract. Thereafter, the Union
submitted separate, identical contracts to all the companies , except the Respondent,
which they signed. The Union did not request the Respondent to execute a con-
tract because of the latter's withdrawal from the negotiations on April 30 under the
circumstances related below .8 Nor has the Respondent, on its part, at any time in-
dicated to the Union a willingness to enter into or negotiate any agreement with it.
Although Nellis had planned to attend the scheduled April 30 meeting, he did not
do so on advice of counsel for the asserted reason that he had received that day a
letter from an independent union advising him that it represented a majority of the
Respondent's employees On the same day, the Respondent's attorney served written
notice on the Union that the Respondent was withdrawing from the bargaining
negotiations which were then in progress "pending the resolution of the question of
what union is the proper bargaining union for the Fairbanks Dairy employees."
The notice also stated that the attorney for the independent union had exhibited to
the Respondent's attorney a signed petition to decertify the Union as the bargaining
representative of the Respondent's employees. At the hearing, the independent
union's attorney asserted that the independent's "petition for representation" was
dismissed at the time of the filing of the charges in this case.
When presented with the withdrawal notice, the Union questioned the validity of
the Respondent's action. A week later the Union filed a charge in Case No.
3-CA-2067 alleging, among other things, that the Respondent unlawfully refused
to bargain with it.
3. Conclusions respecting the 1963 negotiations
It is the General Counsel 's position that the Respondent violated Section 8(a)(5)
and (1 ) of the Act by its untimely withdrawal from the established pattern of
multiemployer contract negotiations and its failure to sign the agreement reached in
those negotiations . The Respondent , on the other hand , maintains that it actually
9 These meetings were held on March 22 and 28, April 8, 11, 18, 25, 26, 29, and 30, and
May 1, when agreement was reached.
7It appears from the entire testimony of Blum (misspelled "Bloom" in the official tran-
script) that the only reservation he had about signing an agreement that would be
reached in these negotiations was that it not contain a prohibition against leasing routes.
It does not appear that the contract which was ultimately negotiated contains such a
prohibition
8 Although the Respondent has not been a party to any bargaining agreement with the
Union since the expiration of its contract on April 30, 1963, it still checks off dues from
the wages of all its employees and remits them to the Union and contributes to the
Union's health and welfare and pension plans, as provided in that agreement. The record
also discloses that since the expiration of this agreement, the Respondent has discussed
with the Union's steward an employee's failure to report in sick ; called the Union's vice
president, Dunn, concerning some difficulty it was having with an employee ; asked the
Union's president and business agent, Patrick F. Shanahan , to have an employee straighten
out a debt he owed the company ; and permitted the Union to post in the plant a notice of
a union meeting.
FAIRBANKS DAIRY, DIVISION OF COOPERDALE DAIRY CO. 897
never engaged in multiemployer bargaining with the Union but bargained with it
solely on an individual basis and therefore was privileged to withdraw from the
negotiations when it was confronted with another union's conflicting claim to repre-
sent its employees. I find merit in the General Counsel's contention and none in
the Respondent's.
The evidence.related above plainly refutes the Respondent's assertion of individual
bargaining.' The Respondent's joint action with the other dairy companies in re-
opening their then expiring 1959 and 1961 contracts, its joint preparation with these
companies for the bargaining sessions that followed, its joint participation in the
private meetings of companies' representatives at which the Union's proposals were
considered and the companies' counterproposals were drafted for submission to the
Union, the designation of a spokesman for the companies and the hiring of an
attorney to assist and guide them in the negotiations, the Respondent's attendance
at the various negotiation meetings along with the representatives of other companies,
and finally, the customary execution by each company of separate but identical
agreements, all inescapably manifest an unequivocal intention on the part of the
Respondent, as well as the other participants, to be bound by group bargaining rather
than individual action .9 The fact that this group of employers had no formal
organization, constitution, bylaws, or membership rules does not detract from the
inherent nature of the multiemployer negotiations.10 Whatever personal reservation
the Respondent might have entertained regarding the binding nature of the group
negotiations, it was never, conveyed to the Union or the companies," nor was it
ever'reflected in its conduct'. Indeed, its withdrawal from negotiations, at the next
to the last meeting was assertedly prompted only by the appearance of another
labor organization in its plant. In sum, I find that the 1963 contract negotiations
between the Union and the dairy companies, including the Respondent, followed the
established pattern of multiemployer bargaining which bound the Respondent to
the contract thus negotiated, unless the Respondent was privileged to withdraw
when it did.
The Board has long recognized the consensual nature of multiemployer bargaining
However, in the interest of fostering and maintaining stability in bargaining relation-
ships, it has wisely required that the right to withdraw from such a relatonship be
exercised at an appropriate time.12 Plainly, a withdrawal after eight bargaining ses-
sions and 1 day before a final agreement on all disputed issues was reached cannot
reasonably be regarded as timely. As indicated above, such was the circumstance of
the Respondent's withdrawal here. Nor can the independent union's claim to repre-
sent a majority of the Respondent's employees excuse the Respondent's refusal to
continue its participation in the group negotiations. It is quite clear that this rival
union claim could not possibly raise a real question of representation which barred
the Respondent from proceeding further with the negotiations until the Board resolved
this question. Not only was the representation claim made in an inappropriate unit
in view of the controlling bargaining history,13 but also it was made during a period
when, in the Board's expert judgment, the incumbent union and the employer "may
negotiate and execute a new or amended agreement without the intrusion of a rival
B See, for example , American Publishing Corporation , et al., 121 NLRB 115, 121-122;
Belleville Employing Printers , 122 NLRB 350, 353
" Ibid. Nor does the fact that the Union permitted the Respondent to pay employees
servicing a "mixed route" a lesser rate for certain milk sales than that prescribed In the
contract preclude finding a multiemployer bargaining unit appropriate.
11 In light of all the evidence , I am not persuaded by the uncorroborated testimony of
the Respondent 's Secretary Blum that at one of the employer meetings he "told the milk
dealers present that as far as Fairbanks was concerned we would not engage in unit [sic]
bargaining ." In any event , viewing this testimony in the context of his other testimony,
the most it establishes is an abortive reservation of a right not communicated to the Union
to refuse to enter into an agreement which contains a restriction on leasing milk routes.
Cf. Detroit Window Cleaners Union, Local 139 of the Building Service Employees' Inter-
national Union, AFL-CIO (Daelyte Service Company ), 126 NLRB 63 . Significantly, there
is no evidence that the 1963 negotiated agreement contains such a restriction ; nor is this
ground even urged as a reason for withdrawing from the negotiations.
'2 Cosmopolitan Studios, Inc ., 127 NLRB 788, 789; Anderson Lithograph Company,
Inc. and Jeffries Banknote Company, 124 NLRB 920, enfd . sub nom. N.L R.B. v. Jeffries
Banknote Co., 281 F. 2d 893, 896 (C.A. 9) ; see also Retail Associates, Inc., 120 NLRB
388, 393-395.
13 Shea Chemical Corporation , 121 NLRB 1027, 1029.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[representation] petition." 14 Moreover, it appears that, even after the Board had
dismissed the petition filed by the independent organization, and thereby removed the
question of a valid rival representation claim, the Respondent made no effort to resume
negotiations with the Union or sign the agreement the Union had consummated with
the dairy employer group.
On the basis of the foregoing, I find that a multiemployer unit composed of all
the nonsupervisory employees of the companies who participated in the 1963 negotia-
tions, including those of the Respondent, was and is appropriate for collective-
bargaining purposes. I further find that the Union, whose majority status in such
multiemployer unit is not challenged, was at all times here material, and still is, the
exclusive statutory bargaining representative of these employees. Accordingly, I
conclude that the Respondent, by withdrawing from the multiemployer negotiations
on April 30 and failing to sign the contract thereafter consummated by the Union and
the dairy companies, violated Section 8 (a) (5) and (1) of the Act.
B. Direct bargaining with employees; unilateral action
1. Background; questions presented
As indicated previously, the Respondent is in the business of processing and selling
milk and other dairy items. To distribute these products it has utilized both driver-
salesmen employees represented by the Union and independent dealers who purchase
the products from the Respondent for resale to their customers. At all the times
critical herein, the driver-salesmen employees were covered by the collective-
bargaining contract which was executed by the parties in 1961 for a term ending
April 30, 1963.
The issue here presented is a narrow one-whether the Respondent failed to per-
form its statutory bargaining obligation, in violation of Section 8 (a) (5) and (1) of
the Act, by negotiating leases of employee milk routes directly with employees Edward
H. Phillips and Stanley Pigula, Jr., and converting their status from employee to
independent contractor; by leasing to a nonemployee, James Reilly, a route previously
serviced and vacated by an employee; by splitting and dividing up another employee
route among independent dealers and employees; and by discharging employee Robert
Holliday for the purpose of splitting and dividing up his delivery route; all without
first notifying and discussing the matters with the Union. It is noted that the Re-
spondent is not charged with being unlawfully motivated by antiunion reasons in
effecting the foregoing changes. Indeed, it must be presumed, for the purposes of
this case, that the action taken by the Respondent was dictated entirely by business
considerations. It was because of the absence of any allegation of discrimination by
the Respondent that I sustained the objections of the General Counsel and the Union
to the Respondent's proffered evidence of economic justification for the changes it
made. In this connection, the parties stipulated at the hearing that the lease arrange-
ments the Respondent made with Reilly, Phillips, and Pigula created real independent-
contractor relationships. We now turn to the evidence pertinent to the Respondent's
alleged nonperformance of its bargaining duty.
2. Evidence
a. Leasing of route 1 to Reilly
Before this milk route was leased to Reilly on June 1, 1962,15 it was serviced by an
employee who had quit his job. Pursuant to a provision in the then current bargain-
ing agreement General Manager Nellis posted this route for bidding by employees.
However, no employee evinced an interest in it. Thereupon, Nellis requested the
Union to furnish a replacement 16 The Union did so but the applicant did not
impress Nellis sufficiently to hire him. Nellis, however, did not notify the Union
that he had rejected the man, and made no additional request for a replacement.
"Deluxe Metal Furniture Company, 121 NLRB 995 , 1000; Shea Chemical Corporation,
supra, at 1029 Even were I to find that a unit of the Respondent's employees alone was
appropriate, the Respondent would not be justified in refusing to bargain with the Union
because of the untimeliness of the rival union's claim and the demonstrated support of a
majority of the Respondent's employees of the strike the Union called the next day.
15 Except when otherwise indicated, all dates refer to 1962.
16 Apparently, this request was also made pursuant to a provision in the contract which
stated that the "Union shall have equal opportunity with all other sources to provide suit-
able applicants for vacant positions which are not bid in by present employees of the
Employer." Article VI (H).
FAIRBANKS DAIRY, DIVISION OF COOPERDALE DAIRY CO. 899
Because of the obvious need to fill this vacancy, the Respondent inserted an advertise-
ment in the newspapers which Reilly answered. Although -offered the job, Reill)
-declined it but expressed his desire to lease the route-as an independent dealer
Nellis talked over Reilly's proposal with the Respondent's Secretary Blum and the
Company's attorneys and, after further discussions with Reilly and his wife in which
Blum participated, the Respondent agreed to lease the route. On June 1, the parties
signed the lease agreement which was prepared by the Respondent's attorneys. Since
that date Reilly has been servicing that route as an independent dealer.
There is a conflict in testimony as to whether any union official was given advance
notice of the Respondent's intention to lease the route in question to Reilly. Nellis
testified that he had discussed this matter with the plant steward, Bernard Devaney.
This was categorically denied by Devaney. From my careful examination of Nellis'
testimony with its many uncertainties and inconsistencies, I find that it cannot with-
stand the test of reliability. Indeed, Secretary Blum's testimony concerning instruc-
tions he assertedly had given to Nellis can scarcely be viewed as directions to bargain
with the Union over leasing the route to Reilly. Thus, he testified that "[w]hen these
matters [concerning leasing] came up, I said to Nellis, `. . you get a hold of the
,officials . . . I may have said union officials . . . Tell them what you're doing;
lease the routes.' " 17 Oddly enough, although Blum's instructions were to notify union
officials, Nellis assertedly had spoken only to a plant steward. As indicated above,
Steward Devaney denied having had such a conversation and I credit his denial.18
b. Leasing of route 6 to ,Phillips
Phillips was an employee whose job as a route rider was to fill in when driver-
salesmen were off. On November 1 he leased route 6, which was previously serviced
by an employee, under the following circumstances: On many occasions since 1959,
when the Respondent purchased Fairbanks Dairy, Phillips had requested the Respond-
ent to lease a route to him but without success. About September 1, after Reilly
had leased his route, Phillips again raised the subject of leasing route 6 with General
Manager Nellis who replied that he would take the matter up with Secretary Blum.
After securing Blum's approval, Nellis informed Phillips of the decision and stated
that arrangements would be made for the execution of a lease agreement prepared
by the Respondent's attorneys. Apparently, there were further conversations be-
tween Nellis and Phillips concerning the terms of the lease and in one of these con-
versations Phillips proposed to assume the route on November 1. This date was
satisfactory to Nellis. At no time was the Union mentioned in these conversations,
nor did Phillips inform any union official or Plant Steward Devaney of the lease
discussions that were then being carried on. On November 1, the lease agreement
was signed by the parties and Phillips' status as an employee terminated.
As in Reilly's case, here too there is a serious question whether Nellis notified and
gave the Union an adequate opportunty to discuss the contemplated leasing to Phillips.
17 In another part of his testimony, Blum stated that he "told Nellie to discuss it with
the officials of the Union and proceed and lease the route." Blum and Nellie also testified,
in substance, to conversations they had in the early part of 1960 with Louis R Roder, a
former president and business agent of the Union, in which they complained that em-
ployee milk routes were deteriorating and not paying their way and that if the routes did
not improve the Company would have to consider leasing them. Obviously, these con-
versations concerning future intentions cannot be viewed as notice to, or discussion with,
the Union regarding the Respondent's contemplated route changes effected 21/ or more
years later.
1s I am not impressed with the testimony of Stanley Pigula that in June or July of 1962,
after Reilly leased the route, he met the Union's president and business agent, Patrick F.
Shanahan, in a restaurant and that Shanahan, whom he knew only casually, told him he
was headed for the Respondent's plant "to straighten" out the Reilly lease matter
Shanahan denied having had such a conversation and testified that he first learned of the
leasing of routes in December of that year. Moreover, there is no credible evidence that
Shanahan actually discussed the Reilly lease with the Respondent in June or July 1962.
Additionally, I have very serious doubts that the Union's officials would not complain to
the Respondent about leasing if they were aware that it was taking place. This is especially
so, in view of the undisputed fact that the subject of leasing of routes was hotly contested
and left unsettled during the 1961 contract negotiations. Accordingly, I credit Shanahan's
testimony.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nellis' testimony 19 was hopelessly confusing, inconsistent, and contradictory. For
example, initially in his direct testimony he stated that he thought he had discussed
with the Union's president and business agent, Shanahan, the proposed leasing of a
route to Phillips before the lease agreement was executed, although he was vague
about dates and the substance of these discussions. Shortly thereafter he testified
that "I don't know as I ever told . . . [Shanahan] I decided to lease [Route] No. 6."
At another point, Nellis testified that he talked over the subject of leasing routes.
with Shanahan "[p]robably after they were leased." 20 Later on Nellis testified that
he thought he discussed with Shanahan on the same occasion the proposed Ieasing to
Phillips and Pigula, whose lease arrangement is separately-considered below,- before
the leases were executed. However, he soon changed this testimony and denied speak-
ing to Shanahan about the leasing of routes to Phillips and Pigula. The next day,
Nellis, when recalled by the Respondent as its witness, gave a fuller version of his
discussions with Shanahan regarding the necessity for leasing the routes to Phillips
and Pigula, which matter was then under consideration but had not yet been
effectuated 21
Shanahan unequivocally denied that Nellis ever mentioned the subject of leasing
to him in the summer or fall of 1962, although he regularly visited the plant during
that period and spoke to Nellis in connection with grievances and other matters.
In fact, Shanahan testified, he first learned that routes were being leased in Decem-
ber when a steward reported his suspicions at a union meeting and from rumors.
that were circulating at that time.
Whether because of Nellis' faulty memory or his unfamiliar and untried role as
a witness in a legal proceeding , I cannot attach any credence to his testimony.
On the other hand, I find Shanahan's testimony plausible-and convincing and there-
fore credit his denial of prior discussions with Nellis concerning the leasing of routes
to Phillips and Pigula.
c. Leasing of route 11 to Pigula
The leasing of this route followed much the same pattern as Phillips'. Early
in September, after learning of Reilly's lease, Pigula approached General Manager
Nellis with a request to lease his own route which he was then servicing as an
employee. Nellis expressed the view that he thought that something could be
worked out basically along the same lines as Reilly's lease, which was shown to,
Pigula. Nellis, however, indicated that he would have to take the matter up with,
his superior. Shorty thereafter, Secretary Blum spoke to Pigula about the terms
of a lease arrangement, which became the subject of further discussions between,
Nellis and Pigula. During the course of his conversation with Blum, Pigula asked
how this arrangement would affect his relationship with the Union. In reply, Blum
stated that "the Union would have no bearing in it . . . I remember him saying,
something about staying in the Union if I could; 'If you're in , stay in the Union.' "
On November 1, Pigula began to operate his route as an independent dealer and
a week later (November 8) signed a lease agreement drafted by the Respondent's
attorneys.22
While the foregoing discussions were in progress, Pigula admittedly did not in-
form Business Agent Shanahan or Plant Steward Devaney of .the leasing arrange-
ments that were being made. Moreover, as in Phillips' case, I find that the Respond-
19 Nellis was originally called as a witness by the General Counsel and was interrogated'
as an official of an adverse party in accordance with rule 43(b) of Rules of Civil Pro-
cedure for the U S District Coui is He was later recalled as a witness for the Respondent.
20 It is undisputed that discussions involving leasing of routes did take place the early
part of 1963
=1 Nellis also testified that his discussion with Shanahan was pursuant to instructions-
he had received from his superior, Secretary Blum. According to the testimony of Blum,
who was called as a witness for the Respondent, he "gave Nellis the same instructions
that . . . [he] gave him when the Reilly matter came up . . . 'Lease the route ; notify
the Union what you're doing' " When questioned further by the Respondent's counsel as
to the order of the instructions, Blum testified, "I may have said, 'Notify the Union and
lease the route,' or 'Lease the route and notify the Union ' I don't recall."
Nellis also testified that lie told Steward Devaney that he was going to lease the "No. 6
Route," but did not discuss it with him Devaney denied that Nellis imparted this informa-
tion to him. I credit his denial. It appears, however, that after Phillips had leased the
route, he learned about it.
=a The foregoing findings are based principally on Pigula's credited testimony.
FAIRBANKS DAIRY, DIVISION OF COOPERDALE DAIRY CO. 901
ent did not give the Union advance notice of, or an opportunity to discuss, the
proposed leasing of Pigula's route.
d. Splitting of route 3
This route was serviced by an employee until December 29, when that employee
quit his job without giving any notice to the Respondent. According to Nellis, the
next day the route was split among two employees and two established independent
milk dealers. He also testified that he previously notified Shanahan and Devaney
of his intention to split the route because it was not a paying proposition. It seems
hardly likely, if the split occurred so soon after the route became vacant, that
there was time enough for Nellis to give the Union adequate advance notice and
an opportunity to negotiate the question of splitting the route. 23 In any event,
I credit the testimony of Shanahan and Devaney contradicting Nellis' assertion that
he had given them advance notice According to Devaney's credited testimony, he
first learned that the route was split about 1i/2 weeks after the event from one or
the employee-beneficiaries of the split. Shanahan credibly testified he received this.
information when Devaney reported it at a union meeting held in January 1963.
e. Holliday's layoff
Holliday had been in the Respondent's employ for close to 3 years when he was-
laid off on January 12, 1963, without prior notice to him. At that time General
Manager Nellis informed him that his services were no longer required, his whole-
sale delivery route was going to be split up, his truck was needed, and nothing-
personal was involved in his dismissal. In answer to Holliday's inquiry whether
the Union knew about the Respondent's action, Nellis stated that he was going to
notify it the following Monday (January 14). No charge is made that the dis-
missal was discriminatory.
On January 15, Business Agent Shanahan arrived at the plant and complained)
about Holliday's layoff, pointing out that under their bargaining agreement Holliday
was at leats entitled to a week's' notice of layoff or a week's pay. Nellis expressed'
his willingness to give Holliday a week's wages and explained that the reason for
the layoff was his decision to terminate the route, a portion of which he intended'
to assign to Phillips who, as indicated above, had already become an independent
dealer 24 Shanahan thereupon protested that the route belonged to the bargaining-
unit and could not be leased. He was also critical of the Respondent's action in
leasing routes, asserting that this practice would ultimately be detrimental to the-
Respondent's own business interests. During the discussions, Nellis offered Holliday
employment with the Company which he declined. Shanahan, nevertheless, insisted-
that the contract required that the vacant route be posted for bidding by employees.
Apparently, on this note the meeting ended.
3. Conclusions
The Respondent's principal contention is that it may not be found to be in viola-
tion of the Act because it leased and split the milk routes solely for economic
reasons. I find no merit in this contention.
It has long been settled that an employer who ignores his employees' exclusive
bargaining representative and negotiates individually with employees concerning
their tenure, terms, and conditions of employment violates the Act, whether or not
the employees initiated the negotiations. As the Supreme Court so aptly explained
in one case: "The National Labor Relations Act makes it the duty of the employer
to bargain collectively with the chosen representatives of his employees. The obli-
gation being exclusive . . it exacts `the negative duty to treat with no other.' " 25
Clearly, the Respondent disregarded this obligation when it negotiated leases with
its then employees Phillips and Pigula, which undeniably affected their tenure and
working conditions, if not the integrity of the entire bargaining unit.
Furthermore, the Respondent violated its bargaining obligation by unilaterally
leasing employee routes to Phillips, Pigula, and Reilly, splitting and dividing em-
23 Doubt is also cast on the reliability of Nellis' testimony in view of the fact that he also
testified that pursuant to the contract he posted the vacancy for employee bidding "on
December 29th or thereabout," although earlier in his testimony, he did not know whether
he had posted such a notice.
21 This intention was confirmed by Phillips.
26Meilo Photo Supply Corporation v. N.L.R B., 321 U.S. 678, 683-684
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD _
ployee route No. 3,26 and discharging Holliday in order to split and divide up his
route , and in that manner eliminating jobs from the bargaining unit of employees
covered by the Union's labor contract with the Respondent. Controlling precedent
establishes that an employer may not alter the tenure, terms, and conditions of
employment without giving the employees' exclusive representative advance notice
and an opportunity to bargain over the contemplated changes and their effects upon
employees ,27 unless such unilateral action is plainly permitted by the parties' col-
lective-bargaining agreement . The Board and courts ( although , to be sure , not all
of them) have held that this duty extends to the employer's decision to contract
out work normally performed by employees in the bargaining unit 28 And this duty
is not lessened simply because the employer may have legitimate economic reasons
for its unilateral action 29 While it is true that the Act does not require the ap-
proval of the bargaining representative before the change may be made, it does
require that the Union be afforded an adequate opportunity to explore with the
employer the immediate problems prompting the change, and the various alterna-
tive means for meeting them. What might be a seemingly insurmountable obstacle
to agreement respecting these difficulties, might be satisfactorily resolved by good-
faith bargaining. This approach, as indicated above, the Respondent has failed
to take. The fact that about 21/z years before the Respondent's 'action in question
the Respondent had discussed generally with a union official the possible necessity
for leasing routes or the fact that during the 1961 contract negotiations the Re-
spondent had rejected the Union's proposed restriction on the Respondent's right to
lease routes cannot exonerate the Respondent for failing to give the Union appro-
priate advance notice to negotiate when the immediate need or desirability for
leasing and splitting routes arose . The Act envisages a closer rapport between an
employer and his employees ' bargaining representative than that demonstrated here
by the Respondent.
Accordingly, I find that, by negotiating individually with Phillips and Pigula, in
disregard of their exclusive bargaining representative , concerning changes in their
tenure, terms, and conditions of employment, by unilaterally leasing milk routes
to these employees land Reilly, by splitting and dividing up another route, and by
discharging employee Holliday in order to split and divide up his route, all without
notice to the Union and affording it, an opportunity to negotiate over such changes
and their effects, the Respondent violated Section 8(a) (5) of the Act. As this
conduct undermined the Union 's status as the employees ' exclusive representative
and interfered with, restrained, 'and coerced employees in the exercise of their statu-
tory right to bargain collectively through a representative of their own choosing,
the Respondent also violated Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III, above , occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
its free flow.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, I shall recommend that the Respondent cease
and desist from engaging in the unfair labor practices found and in like and related
21Indeed, the obligation to bargain over splitting a route, such as that here involved,
was specifically recognized in the parties' then current contract. It provided that "In the
event that a route is to be split, the Company agrees to confer and give notice to the
accredited Union representative prior to said split." (Article XVII (I).) Of course, this
explicit provision regarding splitting a route cannot amount to a waiver of the Union's
statutory right to be consulted with respect to leasing of routes as well
m N L R. B. v. Benne Katz d/b/a Williamsburg Steel Products Co., 369 U. S. 736.
29 Town & Country Manufacturing Company, Inc., and Town & Country Sales Company,
Inc, 136 NLRB 1022; Fibreboard Paper Products Corporation, 138 NLRB 550, enfd 322
F. 2d 411 (CA D'C ). As the Board has not acquiesced in court decisions, such as
N.L.R.B. v. Adams Dairy, Inc., 322 F. 2d 553 (C.A. 8), relied on by the Respondent which
held contrariwise, the Board's holdings are binding on the Trial Examiner. Insurance
Agents' International Union, AFL-CIO (The Prudential Insurance Company of America),
119 NLRB 768, 773.
29 Town & Country and Fibreboard, supra.
FAIRBANKS DAIRY, DIVISION OF COOPERDALE DAIRY CO. 903
conduct. I do not believe that the Respondent's conduct betrays a predisposition
to violate generally employees' statutory rights and I therefore shall not recommend
a broad cease-and-desist order.
I also find that affirmative relief is required in order to effectuate the policies of
the Act. As the Respondent had withdrawn at an inappropriate time from the
1963 contract negotiations between.the Union and the dairy employers group with
the manifest intention of not being bound by any agreement concluded as a result
of such bargaining, I shall recommend that the Respondent, upon the Union's
request, execute with the Union a copy of the consummated agreement. To remedy
the Respondent's unlawful unilateral action in converting the employee milk routes
into independent contractor operations, in splitting and dividing up another route,
and in discharging employee Holliday for the purpose of splitting and dividing up
his route, I shall recommend that the Respondent bargain in good faith with the
Union concerning the changes so made, the problems that gave rise to the changes
and the possible methods of resolving these matters. Contrary to the Respondent's
contention, I find that its discussions with the Union subsequent to the filing of
the unfair labor practice charges herein, held as they were at a time when the
Respondent evidently, but erroneously, thought that the Union was wholly un-
concerned with its decision to make the changes in question, do not relieve the
Respondent of its statutory obligation to negotiate in good faith. On the other
hand, I do not believe, as the General Counsel urges, that it would be appropriate
and equitable, under the particular circumstances of this case, to require the Re-
spondent to reestablish the status quo before bargaining is undertaken here, as the
employer in the Town & Country case, supra, was required to do. Unlike the
situation in the cited case, no employee's connection with the Respondent, except
Holliday's, was severed as a result of the Respondent's unlawful action. As indi-
cated above, Phillips and Pigula have continued to service their routes, although
as independent contractors, and Reilly had leased his route several weeks after it
had been vacated by an employee who quit his job. It is also noted that all three
individuals, as lessees, have made significant investments in their business and have
undertaken financial obligations. In addition, Phillips and Pigula now claim to
earn much more money than they did as employees. The Board has time and again
stated that remedies should not be applied mechanically but that they should "be
adapted to the situation which calls for redress." 30 Accordingly, I shall not order
the Respondent to abrogate the leases here involved before negotiations are in-
stituted. However, the Respondent is put on notice that henceforth it must refrain
from entering into any new lease arrangements affecting employee routes without
first notifying the Union and affording it an opportunity to discuss the matter.
With respect to the Respondent's unlawful failure to bargain concerning Holli-
day's layoff, the appropriate remedy would normally be that prescribed in Town &
Country; that is, reinstatement with backpay. However, it is undisputed that about
3 days after Holliday's separation, the Union complained to the Respondent about
its action. Although the Respondent then agreed to reemploy Holliday, Holliday
rejected the offer. Also during this conversation, the Respondent was amenable to
paying a week's wages to Holliday, which Shanahan, the Union's president and
business agent, stated was required by the parties' bargaining agreement. There
is no suggestion that Holliday did not receive the severance pay. In these circum-
stances, I find that effectuation of the policies of the Act does not require Holliday's
reinstatement with backpay.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. All employees of the dairy companies in the Syracuse area who participated in
the negotiations in 1963 for a contract to succeed the agreement which expired on,
April 30, 1963, including the Respondent, constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section 9(b) of the Act. The specific
employees included in the appropriate unit are: route salesmen, route foremen, route
pullers, inspectors, general dairy workers, group heads, regular reliefinen, garage
servicemen, garage service helpers, and garage attendants. Excluded from the unit
are: engineers , solicitors , office help, collectors , superintendents, assistant super-
intendents, and all other supervisors as defined in the Act.
80 N.L.R.B. v. Mackay Radio d. Telegraph Co, 304 U'S. 333, 348.
`.904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. At all times material herein, the Union has been the exclusive bargaining repre-
sentative of the Respondent's employees in the aforesaid appropriate unit within the
meaning of Section 9 ( a) of the Act.
5. By untimely withdrawing from the 1963 negotiations between the Union and the
above-mentioned dairy companies in the Syracuse area and by failing to execute
the agreement consummated as a result of such negotiations , the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
,8(a)(5) of the Act.
6. By negotiating with individual employees with respect to leasing routes serviced
by employees , which affected their tenure and terms and conditions of employment,
in disregard of the employees ' exclusive bargaining representative ; and by unilaterally
converting into independent operations routes previously serviced by employees
covered by the existing collective-bargaining agreement between the Union and the
Respondent and leasing these routes to independent contractors , by -splitting an em-
ployee route and dividing it up among-employees and independent contractors, and
by discharging employee Holliday in order to split and divide up his route , all with-
out advance notice to the Union and affording it an opportunity to bargain concern-
ing such contemplated changes, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (5) of the Act.
7. By engaging in the aforesaid conduct, the Respondent has interfered with, re-
strained , and coerced employees in the exercise of their statutory right to bargain col-
lectively through representatives of their own choosing within the meaning of Sec-
tion 8 (a) (1) of the Act.
8. The aforesaid unfair labor . practices affect commerce within the meaning of
:Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
,record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended , it is ordered that the Respondent , Fairbanks Dairy, Division of
-Cooperdale Dairy Company , Inc., Syracuse , New York, its officers, agents, successors,
.and assigns , shall:
1. Cease and desist from:
(a) Refusing to sign the agreement negotiated in 1963 by the group of dairy com-
panies in the Syracuse area with Dairy and Bakery Salesmen and Dairy Employees
Local No . 316, affiliated with International Brotherhood of Teamsters , Chauffeurs,
Warehousmen and Helpers of America.
(b) Failing and refusing to bargain with the above-named labor organization as
the exclusive representative of all of its employees , including route salesmen, route
foremen, route pullers, inspectors , general dairy workers, group heads, regular relief-
men, garage servicemen , garage service helpers, and garage attendants , but exclud-
ing engineers, solicitors , office help , collectors , superintendents , assistant superintend-
ents, and all other supervisors as defined in the Act, concerning rates of pay, wages,
hours of employment , grievances , and other conditions of employment.
(c) Negotiating with individual employees with respect to the leasing of milk
routes serviced by employees or with respect to other matters affecting employees'
tenure, and terms and conditions of employment , in disregard of the exclusive bar-
gaining representative ; or unilaterally leasing, splitting , or dividing up milk routes
serviced by employees or taking other action affecting any other term or condition
of employment , without first giving notice to, and discussing the matter with, the
above-named Union as the exclusive bargaining representative of its employees in
the appropriate unit.
(d) In any like or related manner interfering with the efforts of the above-named
Union to bargain collectively for the employees in the appropriate unit.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request, execute with the above-named Union as the exclusive repre-
sentative of its employees the collective -bargaining agreement negotiated by the parties
described above to succeed their agreement which expired on April 30, 1963.
(b) Upon request , bargain collectively with the above -named Union as the ex-
clusive representative of all its employees concerning the leasing of routes Nos. 1, 6,
and 11, the splitting and dividing up of route No. 3 and the layoff of Robert Holliday.
FAIRBANKS DAIRY, DIVISION OF COOPERDALE DAIRY CO. 905
{c) Post at its plant in Syracuse, New York, copies of the attached notice marked
"Appendix." 31 Copies of said notice, to be furnished by the Regional Director for
the Third Region, shall, after being duly signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt thereof and maintained by it
for 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 notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Third Region, in writing, within 20 days
from the date of the receipt of this Trial Examiner's Decision and Recommended
Order, as to what steps the Respondent has taken to comply herewith 32
11 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notlee• 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 substituted for the words "A Decision
and Order."
' In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, as to what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL, upon request, execute with Dairy and Bakery Salesmen and Dairy
Employees Local No. 316, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive
representative of our employees, the collective-bargaining agreement which the
said Union had previously negotiated with the dairy companies. in the Syracuse
area of which we are a part, to succeed our bargaining agreement that expired
on April 30, 1963. The employees included in the appropriate unit are:
Route salesmen , route foremen , route pullers, inspectors , general dairy
workers, group heads, regular reliefmen , garage servicemen , garage service
helpers, and garage attendants. Excluded from the unit are engineers,
solicitors , office help , collectors, superintendents , assistant superintendents,
and all other supervisors as defined in the Act.
WE WILL, on request, bargain collectively with the above-named Union as
the exclusive representative of our employees concerning the leasing of routes
Nos. 1, 6, and 11, the splitting and dividing up of route No. 3, and the dis-
,charge of Robert Holliday.
WE WILL NOT, in disregard of our employees' bargaining representative, nego-
tiate with individual employees with respect to the leasing of milk routes serv-
iced by employees or with respect to other matters affecting their tenure, and
terms and conditions of employment; or take unilateral action, without first
notifying the above-named Union and affording it an opportunity to bargain as
the employees ' exclusive bargaining representative , concerning the leasing,
splitting or dividing up of routes serviced by employees, or other matters affect-
ing terms and conditions of employment.
WE WILL NOT in any like- or related manner interfere with the efforts of the
above-named Union to bargain collectively for the employees in the appropriate
unit.
FAIRBANKS DAIRY, DIVISION OF COOPERDALE
DAIRY COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo , New York, Telephone No.
TL 6-1782, if they have any qeustion concerning this notice or compliance with
its provisions.
Southland Cork Company and Construction & General Laborers'
Local Union No. 307, International Hod Carriers , Building &
Common Laborers ' Union of America , AFL-CIO. Case No.
5-CA-2416. April 17, 1964
DECISION AND ORDER
On December 13, 1963, Trial Examiner Louis Libbin issued his De-
cision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommeding that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Decision. He also found
that Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint and recommended dismissal of these al-
legations. Thereafter, the General Counsel, the Charging Party, and
the Respondent filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in the case, including the Decision, the exceptions, and briefs,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following additions and modifications.
1. The Trial Examiner found, and we agree, that Respondent vio-
lated Section 8 (a) (5) and (1) of the Act by failing to meet and confer
with the Union in good faith at reasonable times and intervals during
the period from September 1962 to April 1963; by refusing to make,
and unduly delaying, any good-faith attempts to furnish the Union
pertinent financial information; by insisting on recognizing the Union
as the representative only of those unit employees who had been con-
tinuously employed by Respondent a specified number of calendar
days; and by refusing at all times on and after July 19, 1963, to meet
and bargain with the Union because of the unresolved unfair labor
practice charges in the instant case.
2. Contrary to the Trial Examiner, we find that by touring job ap-
plicants through its plant on March 8, 1963, Respondent violated Sec-
tion 8 (a) (1) of the Act.
146 NLRB No. 119.