Federal Dairy Co., Inc.

National Labor Relations Board - Board Decisions

Mar 3, 1961

130 N.L.R.B. 1158 (N.L.R.B. 1961)

1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhoods have engaged in and are engaging in unfair labor-practices within the
meaning of Section 8 (b) (3) of the Act. - . .
5. By failing to continue in full force and effect , without resorting to strike, all
the terms and conditions of the existing .contracts for a period of 60 days after the
giving of the notice required in Section 8(d)(3) as provided by Section 8(d)(4) of
the Act, the Biotherhoods have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (b) (3) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Federal Dairy Company, Inc. and Local Union 64, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Case No. 1-CA-3115. March 3, 1961
DECISION AND ORDER
On August 9, 1960, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report, and supporting briefs.'
The Board 2 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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following additions and modifications.'
1. For the reasons set forth in the Intermediate Report, we agree
that the strike by the Respondent's employees which began at midnight
on February 21, 1960, was from its inception an unfair labor practice
strike. We also agree with the General Counsel's contention that even
if the strike were economic in its inception, it thereafter was converted
to an unfair labor practice strike. The evidence shows that on Febru-
ary 22, 1960, the first day of the strike, and continuing to on or about
' The Respondent 's request for oral argument is denied as the record, including the
exceptions and briefs, adequately sets forth the issues and the positions of the parties.
' 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 Leedom and
Members Rodgers and Jenkins].
' Respondent , among other things , takes exception to the amending of the charges, the
service thereof, the amending of the complaint , the manner of recall of witnesses and their
examination after the complaint was amended , the extent of the participation in the bear-
ing by counsel for the Charging Party, and to the conduct of the hearing, charging the
Trial Examiner with bias and prejudice . We find the various rulings on these issues
made at the hearing by the Trial Examiner to the proper and not prejudicial to Respond-
ent. In regard to the charge of bias and prejudice made against the Trial Examiner in
his conduct of the hearing , we find no support in the record for this charge. To the con-
trary, the record shows Respondent was afforded every reasonable opportunity to present
its case and make its record.
130 NLRB No. 85.
. FEDERAL DAIRY COMPANY, INC. 1159
February 25, Respondent's officers approached the picketing employees
and urged them to abandon the strike and to come back to work, stating
to the employees that the Union was dead and that Respondent would
not negotiate, or sign a contract, with the Union. The Board has held
that a threat by an employer not to recognize its employees' bargain-
ing representative, or not to sign a contract with such representative, is
coercive and violative of Section 8(a) (1) of the Act.' We find, there-
fore, that the threats by Respondent not to negotiate or sign a contract
with the Union were coercive, and, therefore, constituted unfair labor
practices. _ Accordingly, even assuming that the strike was economic
at its inception, it was converted to an unfair labor practice strike on
and after February 22,1960 . 11
2. Respondent excepts to the refusal of the Trial Examiner to admit
evidence at the hearing of alleged strike violence by individual em-
ployees. The Trial Examiner excluded this evidence on the ground
that an issues as to this matter had not been joined in the pleadings or
otherwise.
The record shows that on the second day of the hearing the Charg-
ing Party amended the 8(a) (1) and (5) charge against Respondent to
charge also a violation of Section 8(a) (3) because of Respondent's re-
fusal to reinstate , upon request, striking employees. Thereafter, dur-
ing the cross-examination of a witness, Respondent's counsel asked the
witness if he had not been accused of several acts of violence during
the strike. Upon objection by General Counsel, Respondent' s counsel
stated the matter went directly to the witness' credibility, and also had.
a bearing on his eligibility for employment, or reemployment, by Re-
spondent. The Trial Examiner sustained the General Counsel's objec-
tion. After further remarks on the admissibility of the evidence by
Respondent's counsel , the Trial Examiner advised the counsel that he
had several alternatives insofar as the Trial Examiner's ruling was
concerned, and one of these was to amend his answer and place in issue
the matter of strike violence. Subsequently, the General Counsel
amended the complaint to allege a violation of Section 8 (a) (3) of the
Act by the refusal of Respondent to reinstate striking employees upon
request. The Trial Examiner recessed the hearing for approximately
21/2 weeks to afford Respondent an opportunity to answer the amended
complaint. Respondent's amended answer was duly, filed. It did not
raise as a defense to the alleged refusal to reinstate striking employees
the matter of strike violence, but instead raised the defense that the
strikers were economic strikers and had been replaced or had been
offered reemployment.
A Walton Manufacturing Company, 124 NLRB 1331 ; Waycross Machine Shop, 123
NLRB 1331 ; San Angelo Standard, Inc., 110 NLRB 1091 ; Grunwald-Marx, Inc., 127
NLRB 476.
6 Grunwald-Marx, Inc., supra; Giu8tina Bros . Lumber Co., 116 NLRB 700 , 731; Maurice
Embroidery Works, Inc., 111 NLRB 1143.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, at the resumed hearing, Respondent's counsel, during
the cross-examination of a witness, asked if the witness had solicited
the customers of Respondent while working during the strike for
another dairy. The General Counsel objected to the question. Re-
spondent's counsel then stated, "I may be a• little premature in an-
ticipating that perhaps there will be some issues joined in these
proceedings, which would make this type of interrogation proper.
However, we do not have it at this moment." The Trial Examiner sus-
tained the objection, again pointing out to Respondent's counsel that
no issue had been raised as to whether the witness had been discharged
and/or denied reinstatement because of any misconduct. After fur-
ther discussion Respondent's counsel then closed the matter with the-
remark, "I think you are right."
We find, under the circumstances of this case, the Trial Examiner's
refusal to admit evidence of alleged strike violence or misconduct was
proper. The Trial Examiner gave Respondent's counsel every op-
portunity properly to present the issue of strike violence or miscon-
duct as a defense to the alleged refusal to reinstate striking employees,
even to the extent of advising counsel he could amend his answer to
bring the issue properly before the Trial Examiner. In these circum-
stances, we find no prejudicial error in the Trial Examiner's rulings.
3. The Trial Examiner found that Respondent took the position
during negotiations that it was financially unable to meet the Union's
demands, and that, upon request, it failed to furnish the Union with
information and material to substantiate its position. The Respond-
ent excepts to this finding. We agree with the Trial Examiner.
The record shows that Respondent consistently took the position
that it had operated at a loss during its previous fiscal year, that it
could not afford to meet the Union's proposals, could offer no more
than a health and welfare program, that its Internal Revenue report
for the previous year would show it had operated at a loss, and that
its profit and loss statement for the previous year would show it had
lost money. Like the Trial Examiner, we interpret the Respondent's,
position as constituting a plea of "inability to pay" a wage increase
and to satisfy other economic demands within the meaning of
N.L.R.B. v. Truitt Mfg. C0.6
Respondent contends that it in fact offered adequate information
to support its "inability to pay" plea. The record, however, we find,
does not support this contention. According to the credited evidence,
the record shows only that at a meeting with Federal and State con-
ciliators on January 25, 1960, Respondent's counsel offered to permit a
check of its books by any outside accountant whom the conciliators
chose. The Union declined this offer. Respondent's counsel then
stated to the Union, "We'll not give you the papers, the CPA papers,
0 351 U.S. 149.
FEDERAL DAIRY COMPANY, INC. 1161
and you have no right to them." In these circumstances, like the Trial
Examiner, we find that Respondent did not meet its obligations to
furnish the Union, upon request, and in good faith, with information
to substantiate its plea of "inability to pay."'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Federal Dairy Com-
pany, Inc., Providence, Rhode Island, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local Union 64, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, by failing, upon request, to furnish said Union
with such record information and other probative material as will
tend to substantiate the Respondent's claim of inability to meet the
Union's demands and will enable said Union to discharge its func-
tions as the statutory representative of the Respondent's employees;
by unilaterally withdrawing benefits from its employees; by attempt-
ing to bargain directly with its employees; and by engaging in dila-
tory tactics in scheduling meetings.
(b) In any other manner refusing to bargain collectively in good
faith concerning wages, hours, and other terms and conditions of em-
ployment with Local Union 64, international Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, as the ex-
clusive representative of its employees in the following appropriate
unit : All drivers and plant employees, including route foremen and
tank drivers, but excluding office employees, guards, professional em-
ployees, and supervisors as defined in the Act.
(c) Discouraging membership in the above-named labor organiza-
tion by refusing to reinstate, upon their unconditional request, any of
its employees engaged in concerted activity as unfair labor practice
strikers; or, because of their union membership or activity, by dis-
criminating in any other manner with respect to their hire or tenure
of employment or any term or condition of employment, except to the
extent permitted by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist the above-named labor
organization, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
7 N.L.R.B. v. Truitt Mfg. Co., supra; Tennes8ee Chair Company, Inc., 126 NLRB 1357.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activities for the purposes of collective bargaining or .other
mutual aid and protection, or to refrain from engaging in any or all
such activities, except to the extent that such rights may. be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which. the Board finds will
effectuate the policies of the Act :
(a) Furnish Local Union 64, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, with such
record information and other probative material as will tend to sub-
stantiate the Respondent's claim of financial inability to meet the
Union's demands and will enable said Union to discharge its func-
tions as the statutory representative of the Respondent's employees.
(b) Upon request, bargain collectively with the above-named Union
as the exclusive representative of all the employees in the appropriate
unit, and embody in a signed agreement any understanding reached.
(c) Offer to the employees listed on Appendix A, who were on
strike as of April 4,1960, reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay, in the
manner set forth in the Section of the Intermediate Report entitled
"The Remedy."
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, .all payroll records, social se-
curity payroll records, timecards, personnel records and reports, and
all other records necessary for an analysis of the amounts of backpay
due and the reinstatement rights of employees in accordance with the
terms of this Order.
(e) Post at its plant in Providence, Rhode Island, copies of the
notice attached hereto marked "Appendix B." 8 Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained 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 to insure that
said notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the First Region, in, writing,
within 10 days from the date of this Order, what steps the Respond-
ent has taken to comply herewith.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
FEDERAL DAIRY COMPANY, INC.
. APPENDIX A
1163
Name Street City and State
Aquire, Joseph 319 Atlantic Ave. Warwick,-R.I.
Brown, Wilson 13 Green St. Warwick, R.I.
Bonaventure, Anthony 12 Summer Ave. Central Falls, R.I.
Bouchard, Armand Arrowhead Trail Spragueville, R.I.
Buono, Frank 363 Dyer Ave. Cranston, R.I.
Casino, Pasquale 40 Ansonia.Road -Warwick, R.I.
Coppa., Vito 161 Westcott Ave. Cranston, R.I.
Croce, Lawrence 28 Gainer Ave. No. Prov., R.I.
Cicione, Louis 18 Glenwood Ave. Cranston, R.I.-
Dorney, William 23 Lena St. East Prov., R.I.
DeSandro, Silvio 29 Princess Ave. Cranston, R.I.
Dionne, Edward 20 Boyd St. Providence, R.I.
DiCicco, Pasquale 3 Flora St. Providence, R.I.
Fay, James 200 Courtney Ave. Pawtucket, R.I.
Federico, Vincent 11:Messenger. St. Providence, R.I.
Feuti, Joseph 135 Samuel Ave. Pawtucket, R.I.
Gagne, Armand 55 Ponagansett Ave. Providence, R.I.
Gagne, Joseph 18 Matson Ave. Providence, R.I.
Insana, Peter 59 Second Ave. Cranston, R.I.
Iacono, Louis J. 851/2 Vinton St. Providence, R.I.
Lopez, Carmine 25 Parsonage Drive Warwick, R.I.
Mobilia, Vincent 48 Grove St. Providence, R.I.
Lord, Anthony 86 Home Ave. Providence, R.I.
Loparto, Robert 188 Whitmarsh St. Providence, R.I.
Monti, Frank 20 Winfield Road Johnston, R.I.
Montefusco, Frank 68 Villa. Ave. Warwick, R.I.
Monti, John 18 Dora St. Providence, R.I.
Nero, Anthony 10 Joslin Street Providence, R.I.
Nicini, Armando 175 Maplewood Ave. Cranston, R.I.
Piaciteill, Antonio 42 Oak Street Providence, R.I.
Regine, Frank 21 Angelo Ave. No. Prov., R.I.
Regine, Ralph 168 Laurel Hill Ave. Providence, R.I.
-Regine, Raymond 190 Laban St. Providence, R.I.
Rotondo, Joseph 141 Murray St. Providence, R.I.
Rotondo, Joseph (Jr.) 91 Clarence St. Providence, R.I.
Silvestri, Rocco 38 Abbott St. Providence, R.I.
Saccoccio, Salvatore 23 Cedar St. Cranston, R.I.
Sharp, Maurice 79 Pettis Drive Warwick, R.I.
Savoie, George 183 Manton Ave. Providence, R.I.
Tagliaferri, Vincent 21 Champlain Place Providence, R.I.
.Tomassi, Dante 172 Allston St. Providence, R.I.
Vasseur, Theodore 53 Ponagansett Ave. Providence, R.I.
1164 DECISIONS OF • NATIONAL LABOR RELATIONS BOARD
Name Street City and State
Ward, John 7 Young Ave. Providence, R.I.
Ysenbart, Donald 54 Cromwell St. Providence, R.I.
Guilbeault, Henry 158 Pine St. , Pawtucket, R.I.
APPENDIX B
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order 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 NOT discourage membership in Local Union 64, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, by re-
fusal to reinstate any of our employees because of their union
membership or activity, or by discriminating against them in any
other manner with respect to their hire or employment tenure, or
any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Local
Union 64, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor or-
ganization, to bargain collectively through representatives of
their own free choice, or to engage in other concerted activity for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the
extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL bargain collectively, upon request, with Local Union
64, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as exclusive representative of
the employees in the bargaining unit described below, with re-
spect to rates of pay, hours of employment, and other conditions
of employment, and if an understanding is reached, embody such
understanding in a written and signed agreement.
WE WILL furnish the above-named Union with such record
information and other probative material as will tend to sub-
stantiate our claim of inability to meet the Union's demands.
WE WILL offer all of our employees who were on strike on April
4, 1960, immediate and full reinstatement to their former or sub-
stantially equivalent positions.
FEDERAL DAIRY COMPANY, INC. 1165
WE wiLL make our employees whole for any loss of pay each of
them may have suffered as a result of our discriminatory refusal
to reinstate any of them on April 4, 1960, after their unconditional
offers to return.
The bargaining unit is: All drivers and plant employees, including
route foremen and tank drivers, but excluding office employees,
guards, professional employees, and supervisors.
FEDERAL DAIRY COMPANY, INC.,
Employer.
Dated---------------- By--------------------------------=----
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDATIONS
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly designated
Trial Examiner in Providence , Rhode Island , on various dates beginning April 14
and ending on May 27, 1960. The issues litigated were whether Federal Dairy Com-
pany, Inc., herein called Respondent , violated Section 8(a)(1), (3 ), and (5) of the
National Labor Relations Act, as amended , herein called the Act or the statute.
After the hearing in this matter , counsel for the General Counsel and counsel
for Respondent filed briefs with the Trial Examiner which have been considered
in preparing this report.
Upon the entire record , and from his observations of witnesses , the, Trial Examiner
makes the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a Rhode Island corporation maintaining its principal office and place
of business in Providence ,'Rhode Island , where it engages in the manufacture, sale,
and distribution of dairy products . Annually more than $500,000 worth of milk or
dairy products are shipped directly to Respondent from points and places outside the
State of Rhode Island . There is no issue herein concerning jurisdiction and the Trial
Examiner finds that the evidence adduced satisfies the Board 's requirement for the
assertion of jurisdiction. .
II. -THE LABOR. ORGANIZATION INVOLVED
Local Union 64, International Brotherhood of Teamsters , Chauff eurs , Warehouse
men and Helpers of America, herein called the Union , is a labor organization within
the meaning of Section 2(5),of the Act.
III. 'THE ALLEGED UNFAIR LABOR PRACTICES .
A. Issues
The primary issues herein are: (1 ) Whether Respondent , following certification
of the Union , failed to bargain in good faith ; (2) whether a strike which occurred on
February 22 , 1960 , was an unfair labor practice strike ; ( 3) whether the strikers
are entitled to reinstatement ; and (4 ) whether appeals to the striking employees
to abandon the Union and come back to work were unlawful discharges.
With respect to.the refusal to bargain issue (which - is the core of this matter),
the General Counsel's case has a 14-pronged thrust-that Respondent refused-to
supply pertinent and relevant financial data upon request by the Union, that Re-
spondent unilaterally withdrew benefits while negotiations were pending, that
Respondent attempted to induce its employees to repudiate the'Union ,as their repre-
sentative and to deal directly with Respondent , and that. Respondent engaged in
dilatory tactics in scheduling meetings.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts'
The factual situation involved herein concerns primarily events subsequent to
November 9, 1959-the date the Rhode Island State Labor Relations Board certified
the Union as the bargaining agent for Respondent's drivers and plant employees.
Nevertheless,- some :background appears appropriate.
In October 1959 the Union undertook, for the third time in the past 10 years, to
organize the employees of Respondent. These activities culminated in a strike for
recognition on November 2, 1959, in which most of Respondent's employees par-
ticipated. On that date (November 2), and as a direct result of the strike, the parties
(Respondent and the Union) agreed to a consent-election proceeding before the
Rhode Island State Labor Relations Board (agreed to a comparison of authorization
cards with company records). As noted above, the State Board issued a certifica-
tion of representatives on November 9, 1959. The State Board certified the Union
to be the bargaining agent for "all drivers. and plant employees, including, route
foremen and tank drivers, excluding office employees;-guards, professional. employees,
and supervisors."2
Although the State Board's certification was not issued until November 9, the
parties were aware of the results of the cross-check of authorization cards prior to
that date and, in the light thereof, agreed to enter into discussions looking toward a.
collective-bargaining agreement. On November 2, Paul Hanoian, business agent for
the Union, was informed that Allan Seserman, Respondent's lawyer, would be the
negotiator on behalf of Respondent and (Hanoian) agreed to prepare his demands
and contact Seserman at a future date for the purpose of negotiating a contract.
However, there appears to be an issue herein as to whether there was an oral com-
mitment by the Union (Hanoian ) on November 2 to seek a contract only through
Respondent 's counselor (Seserman ). While there is some evidence in the record
indicating that such a commitment was made, the record as a whole does not clearly
support any such claim . The instructions Seserman gave his client (Respondent) 3
and the events subsequent to November 2 4 indicate that with a possible exception of
Seserman no one was aware of such a commitment , if indeed there was one. On
the basis of observations of witnesses and analysis of the record herein the Trial
Examiner rejects any contention that such a commitment was made by Hanoian.5
1 The Trial Examiner will state in narration what the Trial Examiner believes and
finds to be the facts as revealed by the evidence adduced . The findings of fact are based
upon the Trial Examiner's consideration of the entire record and observations.., of wit-
nesses. All evidence " on disputed points is not described so as not to burden this report
unnecessarily . However, all has `been considered and, where required , resolved. In
determining credibility : in this proceeding , the Trial; Examiner : has, considered inter alia:
the, demeanor and 'conduct of witnesaea; their candor or lack thereof ; their apparent fair-
ness, bias, or prejudices ; their lnterest ,or lack thereof ; their ability to know, comprehend,
and understand the matters about -which they . have testified ; whether they have been
contradicted or otherwise impeached ; and consistency and inherent probability of the
testimony.
2The validity of the State Board certification is not challenged - herein . The. Union by
virtue of the certification swas, and,is, , the exclusive. representative for, the employees in
the above-named unit. See Pehirieula 'Asphalt '& Construction Company, 127 NLRB 136.
$ Seserman 's -testimony reveals' that he . told. his client ,: ".That Hanoian was, the col-
lective bargaining . agent, thatrunquestionably there' may be 'things that might come up in
the plant,; there' might be grievances , might ? be something , that might come , up in the
interim'with respect to working conditions , or things that ' might happen with respect to
a particular employee, and that the, 'Almonte ;brothers should realize : that if Paul Hanoian
wanted to call them or see them in regard to any matters involving a grievance, or a
misunderstanding , perhaps, between a foreman and an employee, that under present condi-
tions they should always meet with him when he wants to, listen to what he has to say,
and if there is a way in which they can straighten out the situation they shouldn' t hesi-
tate to do it. But, if they became,involved in something they didn 't understand they
were to contact me and I ' would `advise them or assist them" ; and "that if Mr. Hanoian
called them in regard to a problem iii, the plant , or that if as a result of any matter that
came up they bad to call him with reference to something , or a complaint between
employees, or grievances , that they should not hesitate to do so, and try to dispose of
it and settle It."
4On several occasions ofhcers'of"Respondent and Hanoian met and discussed terms and
conditions of employment. -
5 Further, such a com mitment and breach thereof, if such occurred , would not excuse a
refusal to bargain , if such a, refusai,oeeurred . See American Vitrified Products Company,
127 NLRB 701, footnote„1:.
FEDERAL DAIRY COMPANY, INC. 1167
On November 20, 1959, Business Agent Hanoian met and conferred with Re-
spondent 's owners .6 This meeting was called to discuss, and the parties did discuss,
a grievance involving an employee by the name of Joseph Rotondo, Sr. After the
discussion involving Rotondo, the meeting became "a get acquainted meeting"
at which working conditions in general-in broad rather than specific terms-were
discussed. During the course of the meeting Hanoian complained about certain
remarks allegedly -made by Respondent's sales manager (Dandanelli), and obtained
Respondent's assurances that such remarks would cease. Hanoian and the Almonte
brothers also discussed the composition of the bargaining unit. The Almontes
sought to exclude from the unit tank drivers and Hanoian insisted on bargaining for
employees in the certified unit, which included tank drivers.
On November 23, 1959, Business Agent Hanoian and Respondent's president,
Henry Almonte, conferred at the Martinique Restaurant in Providence, RhodeIsland.
This was another "get acquainted meeting" and the discussions were general rather
than specific: During the-course of this. meeting the parties reiterated their positions
concerning tank drivers and discussed the type of contract the Union sought from
Respondent . Hanoian orally proposed a contract similar to the one the Union had
with Crandall Dairy or similar to the one in effect at Whiting Dairy. Henry Almonte -
did not accept or reject such proposal. Apparently he took the matter under con-
sideration. In any event, the meeting ended with an understanding that Hanoian
would draft and submit a written proposal. in the near future.
Another meeting between Hanoian and Respondent,7 at the Martinique Restaurant,
took place on November 30, 1959. The parties again stated their positions con-
cerning tank drivers and talked, in general terms, about the applicability of the
provisions of the Crandall and Whiting contracts to Respondent's operations.
During a telephone conversation on or about December 3, 1959, Seserman in-
quired when Hanoian would have the union proposals ready for discussion and
Hanoian told him he would let him know soon. About the same date (perhaps
that evening) Hanoian mailed to Respondent a two-page document outlining the
union proposals. Upon receipt of this document Henry Almonte telephoned Hano-
ian and inquired what was expected of Respondent-whether "we are going to wait
for Mr. Seserman to get in touch with me or what you want me to do?" Hanoian
suggested a meeting in his office between himself and the Almonte brothers. On
December 4, 1959, such a meeting was held.
At the meeting on December 4, which lasted 6 or 7 hours, the parties discussed
the.-Union''s,'proposals;^ reiterated their positions concerning tank drivers, discussed
the'economic issues involved in the Union's proposals, and agreed upon a retro-
active date of December 1, 1959, as the date proposals agreed upon would be effec-
tive.'. At this meeting Respondent claimed that it was operating at a loss-operat-
ing in the red-and could not afford to meet the economic proposals of the Union
and the Union (Hanoian) disputed this contention. The original proposals of the
Union were in outline form and indicated on the face of the proposal that a compre-
hensive collective -bargaining agreement would be submitted at a later date . At this
meeting on December 4 the parties anticipated that the comprehensive proposals
would be forthcoming the next day and, at Respondent's request, Hanoian agreed
to send such proposals to Seserman, which he did on or about December 7, 1959.
Another meeting between the, Almonte brothers and Hanoian was scheduled for
the next day, December 5, 1959'.9.
On December 5, 1959, Business. ' Agent.Hanoian.and the Almonte brothers (Henry,
Angelo, and Alfred) spent some 6 or 7 hours discussing the terms of a comprehen-
sive collective -bargaining agreement ( a 32-page contract proposal ) which Hanoian
8 Henry Almonte , Respondent 's president ; Alfred Almonte, Respondent's vice presi-
dent; and Angelo Almonte, Respondent 's secretary and treasurer . Respondent, for prac-
tical purposes , is a family concern owned and operated by the Almonte brothers just named.
T Henry Almonte and, after the meeting was in progress , Angelo Almonte.
8 It is not clear from the record whether retroactivity was agreed upon at this meeting
or the meeting on December 5. But such an agreement was reached on one of these dates.
The specific date of such agreement is not important herein , except as it affects the
credibility of Hanoian and Henry Almonte and since the Trial Examiner believes and
finds Hanoian - a more reliable witness than ,Henry Almonte, he (the Trial Examiner) has
accepted the date given by Hanoian.
.9 There are sharp conflicts of evidence between Hanoian and Henry Almonte, the only
witnesses giving ' detailed testimony concerning this meeting, and the findings of fact made
above . are based upon the testimony of Hanoian which the Trial Examiner credits. . See
footnote, 1. In making this credibility resolution , the trial Examiner is acutely aware of
the background , the experience, and the acumen of the individuals involved.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presented to the Almontes on that date. Respondent again claimed that it was
operating at a loss-in the red-and could not afford to meet the economic pro-
posals of the Union. This meeting ended with an understanding that there would
be another meeting in the near future at which Seserman would represent Re-
spondent.'0
By letter dated December 7, 1959, Hanoian advised Seserman,
DEAR MR. SESSERMAN: In accordance with our understanding, we are en-
closing herewith for your perusal our proposed Agreement with your client
Federal Dairy Company, Inc.
Very truly yours,
"A few days after December 5" Henry Almonte telephoned Hanoian and advised
him that on advice of counsel Respondent was not willing "to go along with the
December 1, 1959, retroactive date" and that Respondent would leave the final
decision on this matter and collective bargaining generally up to its counsel, Mr.
Seserman.
On December 15 and 19, 1959, Hanoian , the Almonte brothers; and Seserman
met and discussed, inter alia, the Union's contract proposals. Offers and counter-
offers were made as the meetings progressed and tentative agreements were reached
on some, but not on all, items. A considerable portion of these meetings was de-
voted to discussing items in the Union's proposal which would increase Respondent's
operating expenses-the additional costs were estimated by Hanoian to be between
$50,000 and $60,000 and by Respondent to be more than that amount-and agree-
ments were not reached on these items. Prior to this meeting but after the Union
became the bargaining agent (after November 2, 1959), Respondent canceled or
withdrew, without notice to, or consultation with, the Union, certain benefit pro-
grams which had been in effect prior to the advent of the Union 11 and at this meet-
ing (on December 15, 1959) Hanoian complained about this conduct. Respondent's
counsel then advised Respondent to reinstate the benefit programs and restore the
status quo and maintain it at least until the conclusion of the contract negotiations.
Respondent indicated an intention to do so but the record herein reveals that no
steps were taken in this direction. This meeting ended with an understanding that
the parties would meet again sometime after the holidays and with a further under-
standing that Respondent's proposals (in writing) concerning items requiring an
increase in operating expenses (cost items) would be forthcoming soon.12
Hanoian and the three Almonte brothers conferred at Respondent's place of
business on January 7, 1960. At this meeting the parties alluded to the Union's
proposal and Respondent told Hanoian, "We cannot give you any wage, increases,
10 Respondent's brief is highly critical of Hanolan because of -his conduct in meeting as
noted above-with Respondent's officials outside of the presence of Respondent's counsel-
and asserts that Hanolan exploited the "ignorance of the officers of the Company" (who
are foreign born) by trying to make "deals" with them when he (Hanolan) knew they had
not the benefit of counsel. Under the circumstances revealed by this record, the Trial
Examiner is not persuaded that Hanolan should be criticized for meeting with Respond- '
ent's officials outside the presence of Respondent's counsel. It seems to the Trial Examiner
that Respondent's criticism is misplaced. While certain segments of the testimony of.
Henry Almonte indicate an attempt to exploit, his testimony as a whole does-not support
such an assertion and clearly the record as a whole refutes any such contention.
n Prior to November 2, 1959, three separate benefit programs were in effect at Re-
spondent's place of business, namely,' a bonus program for new business, a contest for
new business (which ran from May 30, 1959, to September 30, 1959, but new customers
had to be retained until October 31, 1959, and payments to winners were to be made
after that date), and a safety bonus plan (under which employees without an accident
for 6 months were to receive a $30 bonus-this plan was inaugurated in June 1959).
12 As noted above, five persons attended these meetings. Only two (Hanoian and
Seserman) gave detailed testimony concerning what occurred. Direct and responsive
answers were not the habit of either-Hanoian favored conclusions and Seserman circum-
locution. Further, Seserman's testimony contains equivocation, evasion, and misleading'
inferences which seem to be according to design rather than chance. There are major
differences in the testimony of Hanolan and Seserman and the Trial Examiner has
resolved these differences by crediting the testimony of Hanoian. In' making these
credibility resolutions (and others involving Hanoian and Seserman) the Trial Examiner
has considered the matters just mentioned, the fact that Respondent had available, but
did not. use, corroborative testimony, namely, the testimony of the'Almontes,'and the items
set forth in footnote 1. '
FEDERAL DAIRY COMPANY, INC. 1169
we cannot afford it, we are operating in the red, the only thing we can offer you is
a health and welfare plan which costs $4.20 a week, provided we furnish the carrier,
we have the choice of the carrier of the insurance." Hanoian was further told
that the prevailing terms and conditions would continue-that there would be "no
wage increases" and no improvement on the vacation schedule. Hanoian stated
to the Almonte brothers that the offer was "inadequate, unsatisfactory and we
cannot accept it, I [Hanoian] cannot understand why a large independent dairy
of this size doing the volume of business that they were doing cannot afford to
meet the standards within the industry in this area" and was told "We can't give
you any more."
On January 11, 1960, Hanoian and a union committee met with Seserman and
the three Almonte brothers at Respondent's place of business. Hanoian complained
about Respondent's failure to reinstate the benefit programs previously mentioned
herein and was told Respondent would give further consideration to these matters.
Some of the economic proposals of the Union (guaranteed minimum wages for ice
cream drivers, wholesale drivers, retail drivers, and route foremen, wage increases
for inside employees, and pay for overtime work and paid holidays) were discussed
and Respondent made certain offers which the Union rejected as being inadequate.
The parties agreed to discuss these matters at their next meeting (which was held
on January 14, 1960) at which time Respondent would submit its proposals on these
matters in writing.13
On January 14, 1960, Hanoian and a union committee met with Seserman and
the three Almonte brothers at Respondent's place of business, at which time Re-
spondent presented a proposal outlining Respondent's offer on monetary items. Re-
spondent's proposal reads as follows:
WAGE RATES
[It is agreed that the following wage taxes shall prevail for a five (5) day work week in the designated
classifications of employment)
January 11, 1960
1960 1961 1962
Wholesale driver----- $54.50 plus commission __________________________________ $82 $84 $88
Wholesale foreman--- $5.50 guarantee over average of drivers . Guarantee $84 $87 $90
Retail driver _________ Commission ---------------------------------------------
plus
$24 $25 $26
Guarantee ---------------------------------------------- $74 $75 $76
Retail foreman ------- Average of drivers plus $5.50____________________________ $84 $87 $90
Ice cream driver------ 2 percent commission - ---------- _______________________
plus
$46 $47 $48
Guarantee - ------------------------------------------- $82 $84 $88
Paid holidays -------- ---------------------------------------------------------- 2 4 6
NOTE.-All other employees not covered by above schedule will receive a blanket $2 per week
increase.
The Union claimed that Respondent's proposals were "inadequate" and offered
counterproposals. In its counterproposals the Union sought $1 more than Re-
spondent had proposed in the blanket-increase proposal, $1 more than Respondent
had proposed with respect to drivers, etc., for 1960 together with an understanding
that no one would receive less than he was then receiving, four paid holidays instead
of two during 1960, a retroactive date of December 1, 1959, vacations as proposed
in its original proposals, uniforms at company expense, additional money for em-
ployees working more than 45 hours per week, reinstatement of the benefit programs
previously mentioned in this report, a health and welfare plan, and a written con-
tract incorporating these items and items previously agreed upon. Respondent
claimed it could not afford to meet these union proposals and offered the Union a
18 These findings of fact are based upon the testimony of Hanoian. Again there are
major differences in the testimony of Hanoian and Seserman. For reasons previously
noted the Trial Examiner credits Hanoian's version.
597254-61-vol. 130-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choice of either the proposals submitted by Respondent at this meeting (set forth
above) or a health and welfare program costing $4.20 per man per week and a
1-year contract. The Union rejected this offer stating it was unsatisfactory, un-
realistic, and inadequate. Respondent and the Union did not settle their differences
at this meeting, and no meetings for the future were then scheduled, although the
Union informed Respondent that "a deadline had been set for action against the
Company on January 21 if no agreement had been reached." 14
As a result of a telephone call from Seserman to Hanoian a meeting of the parties
with representatives of the Federal and State Mediation and Counciliation Services
was scheduled for January 25, 1960.
On January 25, 1960, the parties (Hanoian and Seserman and the three Almonte
brothers) met with State and Federal conciliators. The history of this matter and the
positions of the parties (noted earlier herein) were given to the conciliators and it
was noted that there were substantial differences insofar as money items were con-
cerned . Hanoian again questioned Respondent 's claim of financial inability to meet
the union demands and requested that Respondent furnish the Union pertient data
bearing upon its claim of inability to pay. Respondent refused to allow the Union
to examine its books and records but did offer to let a third party (an independent
accountant) see them and report the results of his audit to the Union. The Union
rejected this offer.15
On January 26, 1960, Respondent held a meeting of its employees at the plant at
which Angelo Almonte (Respondent's secretary and treasurer) told the employees
Respondent would curtain operations rather than meet the union demands and sought
to induce the employees to abandon the Union.ls
On January 27, 1960, Hanoian held a meeting at the plant at which he reviewed for
the employees the history of this matter (outlined above).
On February 2, 1960, Hanoian and Seserman and the three Almonte brothers
met again with the conciliators. This meeting was essentially a repetition of the
meeting held on January 25-the Company offered either of its proposals of January
14 and claimed inability to go beyond these proposals and the Union rejected these
proposals and asked for proof of inability to pay and the Company refused to come
forward with such proof except through a third party. Hanoian suggested arbitra-
tion of the matter but Seserman rejected this suggestion. No further meetings were
then scheduled.17
On February 9, 1960, Respondent called a meeting of the employees at the plant
which Hanoian attended at the request of Respondent. Alfred Almonte (Re-
spondent's vice president) opened the meeting with "this meeting was called for the
purpose of reporting to you what has transpired up to date between the Union and
the Company on the contract negotiations if I say anything illegal I would like Paul
Hanoian to stop me." Hanoian stated that such a meeting was illegal but Alfred
".just. laughed and kept on talking." Alfred Almonte said, "We have offered you
people a health and welfare program and that's the best we can do we can't afford
to give you any more. I urge you to accept it, you can't do any better, we are not
making the kind of money to give you any more. In fact, we are losing money,
operating in the red again," and then presented Hanoian. Hanoian then gave his
version of the differences between Respondent and the Union and stated that he could
not understand why a dairy the size of Respondent could not afford more economic
benefits and offered to pay for arbitration if Respondent would. go to arbitration.
Respondent rejected this offer. There followed a question and answer session in
14 The above findings of fact are based upon the testimony of Hanoian which is cor-
roborated in part by Pasquale DiCicco. Here, as in other instances involving conferences
attended by Seserman and Hanoian, there are major differences between the testimony
of these two individuals. For reasons previously indicated, the Trial Examiner credits
Hanolan's version.
"There are major differences between Hanoian and Seserman concerning what took
place at this meeting and the findings of fact made above are based upon the testimony of
Hanoian. See footnote 12. The reference in footnote 12 to equivocation, evasion, and
misleading inferences is based primarily upon Seserman 's testimony concerning Respond-
ent's position regarding its books and records. The Trial' Examiner considers Seserman's
testimony with iespect to this matter considerably less than candid.
is Based upon the testimony of Louis Cicione and Pasquale DiCicco. Angelo Almonte
denied that he said "anything" at this meeting.
1TThe findings of fact made above are based upon testimony of Hanolan. Here again
there are major differences between his testimony and the testimony of Seserman.
FEDERAL DAIRY COMPANY, INC. 1171
which Respondent again offered its proposals of January 14 and claimed inability
to pay for more economic benefits.18
On February 17, 1960, Hanoian telephoned Henry Almonte and requested a
meeting on or about February 25 to discuss further contract terms. Almonte told
Hanoian that he (Almonte) "was going out of town with his wife, his wife was ill,
and he was tired" and that "the best I can do is maybe March 23rd." Hanoiah com-
plained about this long delay and Almonte then suggested March 18. Hanoian com-
plained again and asked for an earlier meeting with the other two Almonte brothers
and Seserman but Henry Almonte refused to honor this request. Sometime between
this date (February 17, 1960) and the date of the strike (February 22, 1960) Henry
Almonte went to Florida.
By letter dated February 18, 1960, from Hanoian to Respondent's employees,
Hanoian complained about Respondent's conduct (noted above) and scheduled a
meeting for February 21, 1960, to discuss the matter.
At a union meeting on February 21, 1960, Hanoian told Respondent's employees
about his efforts to negotiate and about the telephone conversation with Henry
Almonte on February 17 and the employees voted to strike at midnight that date (Feb-
ruary 21, 1960). The strike lasted until April 4, 1960. On the latter date the
Union, on behalf of the striking employees, informed Respondent that the strike "is
terminated" and requested reinstatement to the jobs the strikers held at the commence-
ment of the strike or to substantially equivalent employment. At the same time each
individual striker submitted a similar request for reinstatement. The persons whose
names appear on Appendix A have not been reinstated.19
.During the early days of the strike (and prior to February 25, 1960), Respondent
urged the striking employees to abandon the Union and come back to work. One of
the grounds that Respondent used in appealing to the strikers to abandon the Union
was that the Union was dead insofar as Respondent was concerned and that Re-
spondent would not negotiate with, or sign a contract with, the Union.
By letter dated February 25, 1960, Respondent advised its striking employees;
DEAR SIR: It is indeed unfortunate that the union chose to strike our plant
rather than accept the terms and conditions of employment offered them on
your behalf.
We have strived for the past forty years to build up a business that has given
stable and lasting employment to all, and it is not easy for us to see all our
efforts over the years shattered by demands that could not possibly be' met
without destroying the very company that supports us all.
We certainly would like to have all our former employees return to their jobs,
and at'the same time regret that a suitable agreement with the union could not
-have been worked out.
We also wish to inform you that we hold no bad feeling against you for your
activity on behalf of the union nor do we intend to discriminate against you in
any' form for whatever activity you were or are engaged in on their behalf.
However we must continue to operate our business as best we can under all the
conditions that face us: To -do otherwise would be to abandon those of our
employees who desire to continue working for us. This we shall never do so
long as it is in our power to continue our operations.
If you are desirous of returning to work please do so by February 29, 1960.
After this date we shall assume that,you are not willing to work for us under
present conditions and shall offer your job to others who may be inclined to do so.
'Respondent'held open until February 29, 1960, the jobs of the strikers and there-
after replaced the strikers with permanent replacements. However, Respondent did
thereafter' offer employment to some of the strikers.
Conclusions
On the basis of the foregoing findings of fact, the Trial Examiner concludes that
Respondent has not met the statutory obligation to bargain in good faith. That such
'obligation has not been met is established by Respondent's refusal to supply pertinent
and relevant financial data upon request by the Union, by Respondent's unilateral
18 Based upon the testimony of Hanoian, Pasquale DiCicco, and Frank Buono, which is
'corroborated in part by Henry and Angelo Almonte.
w After the strike ended some of the employees listed in Appendix A were offered lobs
but not reinstatement.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawal of benefits, by Respondent's attempts to bargain directly with its em-
ployees, and by Respondent's dilatory tactics in scheduling meetings.
While Respondent asserts ( in its brief) that Respondent did not take the position
it was financially unable to meet the Union's demands, it is plain from the evidence
adduced that such a plea within the meaning of N.L.R.B. v. Truitt Mfg. Co., 351 U.S.
149, was maintained throughout the negotiations. Such being the situation, it was
Respondent's obligation, upon request, to furnish the union representative record in-
formation and other probative material to substantiate its claim . The offer to furnish
appropriate books and records to a third party does not satisfy this obligation. See
N.L.R.B. v. Truitt Mfg. Co., supra, and Tennessee Chair Company, Inc., 126 NLRB
1357.
As noted above, after the certification of the Union as the bargaining agent and
after the Union had been recognized by Respondent as such agent, Respondent uni-
laterally eliminated three separate benefit programs. While there maybe_some justi-
fication for Respondent's action with respect to the contest for new business since
that contest ended prior to the certification (although any money earned thereunder
was not payable until December) the unilateral cancellations of the other two pro-
grams does not stand in the same position. The unilateral cancellations of these two
programs while negotiations with the Union were pending were incompatible with
the mode of collective bargaining which the statute contemplates. It was an undercut-
tirig of the Union's performance of its function's as the employee's bargaining repre-
sentative. See Leisure Lads, Inc., 124 NLRB 431, and Hensley Equipment Com-
pany Inc., et al., 121 NLRB 556.
Respondent's appeals to its employees to abandon the Union, made at the January
26 and February 9, 1960, meetings and during the early days of the strike, were at-
tempts to go behind the designated representative and negotiate with the employees
themselves and were subversive of the mode of collective bargaining which the statute
has ordained. See Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678;
Squaw Valley Development Corp., 128 NLRB 9; Orange Premium Stamps (Division
of Alfred M. Lewis, Inc.), 127 NLRB 1491; Ralph's Wonder, Inc., 127 NLRB 1280;
and Marlboro Electronic Parts Corp., 127 NLRB 122. Whether the appeals to the
employees to abandon the strike were a tactical maneuver to get the employees to
return to work need not be determined herein because to the extent that the appeals
went beyond soliciting employees to return to work and encouraged them to abandon
the Union they (the appeals), in the light of the entire record herein, were an under-
cutting of the Union as the bargaining agent and an indicia of bad-faith bargaining.:,
,Respondent's refusal to honor the Union's request of February 17, 1960, for an
early meeting, in the light of the circumstances then prevailing, amounted to dilatory
tactics and further reflects a negation of the collective-bargaining obligations im-
posed by the Act.
In view of the foregoing, the Trial Examiner concludes and finds that by the
aforementioned conduct Respondent failed to meet the statutory obligation to
bargain in good faith and thereby violated Section 8(a) (5) and (1) of the Act.
In the light of the record as a whole, and the findings of fact made in this report,
there is little doubt that Respondent's failure to bargain. in good faith was the, basic
cause of the strike which commenced on February 22, 1960; and that te strikingem ,
ployees were unfair labor practice strikers. As unfair labor :practice strikers, the
strikers were entitled to reinstatement upon application 20
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE'
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the 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 the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation of
the Act, the Trial Examiner recommends that Respondent, to effectuate the policies of
20 Whether the appeals to the employees to abandon the strike were a tactical maneuver
or discharges need not be determined herein in view of the findings and conclusions that
the strikers were unfair labor practice strikers entitled to reinstatement and since the
remedy which the Trial Examiner deems appropriate is the same whether the employees
are viewed as dischargees or unfair labor practice strikers or both. See Butler Knitting
Mills, Inc., 127 NLRB 68.
FEDERAL DAIRY COMPANY, INC. 1173
the Act, cease and desist therefrom and take the affirmative action hereinafter
specified.
Having found that Respondent engaged in several distinctive acts constituting viola-
tions of Sections 8 (a) (5) and (1) of the Act and believing that the record discloses
an, attitude of opposition to the statute 's purposes , the Trial Examiner recommends
that Respondent cease and desist from engaging in conduct found violative of the Act
and from in any other manner refusing to bargain.
Having found that Respondent 's striking employees are unfair labor practice
strikers entitled to reinstatement on and after April 4 , 1960, the date of their uncon-
ditional application for reinstatement , the Trial Examiner recommends that Respond-
ent, if it has not already done so, offer the employees listed on Appendix A, full
reinstatement to their former or substantially equivalent positions , dismissing , if nec-
essary, employees hired since February 22 , 1960, to replace them . If, after the dis-
missal of replacement employees , there are not enough positions available for all of
the workers , entitled to reinstatement , available positions should be distributed among
them, without discrimination because of their union membership , activity , or partici-
pation in the strike , on the basis of a seniority system , or any other nondiscriminatory
practice with respect to work assignments previously followed by the Respondent in
the conduct of its business . The employees for whom no work may be immediately
available, after such distribution , should be placed on a preferential hiring list, with
priorities determined on the basis of the seniority system or other nondiscriminatory
system previously followed by the Respondent in the conduct of its business; they
should be offered reinstatement thereafter in accordance with such a list as positions
becomt available and before other persons are hired for the work . Reinstatement, as
recommended in this report, should be effectuated without prejudice to the seniority
of the employees or any of their other rights and privileges . It is also recommended
that Respondent reimburse all of the employees entitled to reinstatement for any
loss of pay they may have suffered by reason of Respondent's discrimination with
respect to them, by payment to each of a sum of money equal to the amount which
each normally would have earned as wages during the period from April 4, 1960, the
date of Respondent's refusal to reinstate the employees upon their unconditional appli-
cation , to the date of the Respondent's offer to reinstate the employees or place them
on a preferential hiring list in the manner described above, less his net earnings during
that period. Such pay losses shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289.
Ultimate Findings and Conclusions
In summary , the Trial Examiner finds and concludes:
1. The evidence adduced in this ,proceeding satisfies the Board 's requirements for
the assertion of jurisdiction herein.
2. Local Union 64, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , is a labor organization within the meaning of the
Act.
3. The following employees of Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of the Act: All drivers and plant
employees , including route foremen and tank drivers , but excluding office employees,
guards, professional employees , and supervisors as defined in the Act.
4. At all times since on or about November 9, 1959, the Union has been the ex-
clusive representative of all employees in the aforementioned unit for the purposes of
collective bargaining with respect to rates of pay, wages , hours of employment, and
other conditions of employment.
5. The evidence adduced establishes that Respondent refused to bargain and thereby
engaged in unfair labor practices within the meaning of Section 8(a) (1) and (5) of
the Act by refusing to supply pertinent and relevant financial data upon request by the
the Union , by unilaterally withdrawing benefits while negotiations with the Union
were pending, by attempting to bargain directly with its employees and by dilatory
tactics in scheduling meetings.
6. The strike which lasted from February 22 to on or about April 4, 1960, was an
unfair labor practice strike.
7. At the conclusion of the strike mentioned in the preceding paragraph the strikers
made unconditional applications for reinstatement which Respondent failed and re-
fused to honor thereby engaging in unfair labor practices within the meaning of Sec-
tion 8 (a)( I) and (3) of the Act.
8. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]