Newport Concrete Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 745 (N.L.R.B. 1969)

TOBASCO PRESTRESSED CONCRETE CO. 745
Tobasco Prestressed Concrete Company, a Division
of Newport Concrete Company, Newport Concrete
Company, and The Bethel Supply Company and
Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Case 9-CA-4909
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On April 25, 1969, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the
Respondent had not engaged in certain other alleged
unfair labor practices and recommended dismissal of
those allegations of the complaint. Thereafter, the
Respondent and the General Counsel filed
exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner as modified herein.
The Trial Examiner correctly states that the
record does not show the exact relationship between
J&L Truck Leasing Company and Respondent.
Based on this lack of information the Trial
Examiner did not make any finding with respect to
employee George Taylor's (and Howard Ingram's)
arrangement with J&L. In our opinion, the evidence
establishes that Respondent unilaterally bargained
The Trial Examiner finds that the Respondent violated Sec 8(a)(5) and
(1) by discussing and unilaterally entering into leasing agreements with
individual truckdrivers . We agree.
Our dissenting colleague would not find a violation as to Respondent's
leasing arrangements with individual employees because the employees
involved initiated the negotiations and there is no evidence that the
arrangement was to continue after the strike In our opinion , Respondent
violated the act by engaging in bargaining with individual employees
regardless of who initiated the discussions . Medo Photo Corp v N L.R B
321 U S 678 Also, we note that there is no evidence that the arrangement
was to terminate after the strike was over Inasmuch as the remedy is
unaffected , we do not find it necessary to decide whether the same conduct
establishes that Respondent on and after the date of the signing of these
leases was acting in bad faith at the bargaining table
with employees Taylor and Ingram in violation of
Section 8(a)(5) and (1). In late August 1968, Taylor
was invited to the home of Respondent's chief
stockholder and manager, Walter Kunz, by Kunz's
son-in-law, Larry Dixon. Present were Kunz, Dixon,
Ingram and Taylor. Kunz told Taylor and Ingram
that he had leased trucks to J&L, and Dixon asked
Taylor if Taylor wanted to drive for him. Taylor
said he would. Approximately September 1, 1968,
Taylor went to work for J&L driving a leased truck
and hauling Respondent's products, apparently
under essentially the same conditions as prior to the
strike. Ingram also went to work for J&L.
While an employer may, in order to continue its
business during a strike, subcontract work to
subcontractors without having previously discussed
the subcontracting with the Union,' it cannot then
negotiate with its own employees in an effort to
have its employees go to work for the subcontractor.
A transaction of this type results in the
subcontractor being a mere conduit for the
employer's efforts to unilaterally change the terms
and conditions of employment, and thereby
undermine the Union's objections at the bargaining
table.' In our opinion, Respondent's unilateral
negotiations with Taylor and Ingram, seeking as it
did to have these two employees go to work for an
employer to whom Respondent had subcontracted
its struck work," constituted bargaining with
individual employees at a time when Respondent
was clearly obligated to bargain with the Union, in
violation of Section 8(a)(5) and (1) of the Act.
As noted above, the exact relationship between
Respondent and J&L Truck Leasing is unclear.
Accordingly, we shall not order Respondent to
rescind its leasing agreement with J&L. However,
we shall order Respondent to cease and desist from
negotiating with its striking employees concerning
their employment with the subcontractors
Respondent has hired to perform its struck work.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, Newport Concrete Co.,
and its subdivisions, Newport Concrete Company
and Bethel Supply Company, its officers, agents,
successors, and assigns, shall take the action set
'Empire Terminal Warehouse Company. 151 NLRB 1359, affd. 355
F.2d 842 (C A D.C.); Shell Oil Company. 149 NLRB 283, 285
'Our opinion would not be different even if the employee was hired
under exactly the same terms and conditions as the employee had worked
under at the time of the strike . A change of employer is a sufficient change
to justify a finding that the employer had negotiated a unilateral change in
the terms and conditions of employment.
'Although the record is not clear , because of what in fact subsequently
happened, we infer that when Respondent leased the trucks to J&L it did
so with at least an implied understanding that the trucks would be used to
transport Respondent 's products
177 NLRB No. 101
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the Trial Examiner's Recommended Order,
as herein modified.
1. Delete paragraph 1(a) and substitute the
following:
"(a) Dealing directly and individually with
employees in the aforesaid appropriate units
concerning leasing of Respondent's trucks to the
said employees, concerning their employment by
subcontractors hired to preserve struck work and
also concerning wages, benefits, and other
conditions of employment."
2. Delete the second indented paragraph of the
Appendix attached to the Trial Examiner's Decision
and substitute the following:
WE WILL NOT deal directly and individually with
employees in the aforesaid appropriate unit
concerning leasing of trucks, concerning
employment with subcontractors hired to preserve
struck work, or concerning wages, benefits, or any
other terms or conditions of employment.
MEMBER ZAGORIA, dissenting in part:
On August 3, 1968, Respondent's employees
commenced an economic strike. Thereafter,
sometime in the latter part of August, Henize, one
of the striking truckdrivers, heard that a company in
another city had leased its mixer trucks to drivers.
He discussed this possibility with several of
Respondent's drivers, because, according to Henize's
testimony, "they was in the same fix I was in, they
was trying to make a living, and we decided we
wanted to work." Thereafter, Henize approached
McElfresh, a dispatcher at Respondent's Bethel
terminal, and also Robinson, manager of the Bethel
Supply division, about the possibility of such an
arrangement . McElfresh, after checking with
Respondent, told Henize that anyone who was
interested should attend a meeting at the Bethel
terminal. At the meeting, held September 6, several
of the drivers signed "lease" arrangements with
Respondent, permitting them to work for the
duration of the strike.' There is no evidence that this
lease arrangement was to be permanent; i.e., that it
was to continue after the strike.
I cannot agree that Respondent's actions, detailed
above, were violative of the Act. It is clear that
employers may attempt to continue operations
during a strike, and that employees have a right,
under Section 7, to refrain from engaging in
concerted activities. In my view, the Respondent and
the returning strikers were within their rights in
entering into the lease arrangement for the duration
of the strike. To say that Respondent solicited the
drivers is to overlook what actually happened: it was
the drivers who approached Respondent about
returning to work. And to say that the lease
arrangement represented a "unilateral change" by
'Though the fact is not determinative , the record indicates that one of
the drivers asked at the meeting about his union status, and was told he
could continue to be a union member, and send his dues directly to the
Union Another of the drivers who accepted the lease arrangement testified
he continued to be a paid -up union member at all times
Respondent is to ignore the fact that, so far as one
can tell from the record, the arrangement was
merely temporary, to last until the strike was over.
I would find no violation as to these arrangements.'
The situation is different, I believe, as to the J&L
Truck Leasing incident. As to that, it was
Respondent who invited strikers Taylor and Ingram
to the home of Walter Kunz, Respondent's chief
stockholder and manager, and stood by while Taylor
was asked whether he might want to drive a truck
which Respondent had leased to J&L, owned by
Kunz' s son-in-law. I would find this to have been
improper solicitation of strikers by Respondent,
and, as found by my colleagues, a violation of
Section 8(a)(5) and (1) of the Act.
Since I find that only two strikers were
improperly solicited by Respondent, I find the
evidence insufficient to establish that the strike,
which began as an economic strike, was converted
to an unfair labor practice strike, and I would not,
therefore, adopt the portion of the Trial Examiner's
Recommended Remedy relating to that finding.
`As the Trial Examiner found , the parties continued negotiations and,
shortly after the hearing in the instant case was over , on March 17, 1969,
executed collective-bargaining agreements for the Respondent's two
divisions.
'Medo Photo Corp. v. N L R B, supra, cited by the majority, seems to
me to involve a totally different set of circumstances . In Medo, which did
not involve a strike , the employer bargained directly with a group of 12
employees for permanent wage increases , after which the employees
disavowed interest in the Union and the employer withdrew recognition.
That conduct by the employer was obviously in violation of its duty to
bargain with the exclusive bargaining representative , and appeared to be an
effort by the employer to undermine the union . There was no necessity in
Medo for the Board or courts to balance, along with the employer's duty
to bargain , its right to continue operations during a strike, and the right of
employees , under Sec. 7, to work during the strike Compare Hawaii Meat
Co v NLRB , 321 F 2d 397 (C.A. 9)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed on October 9, 1968, by Truck Drivers, Chauffeurs
and Helpers Local Union No. 100, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Charging Party
or the Union, the Regional Director for Region 9 of the
National Labor Relations Board, herein called the Board,
issued a complaint on December 26, 1968, on behalf of
the General Counsel of the Board against Tobasco
Prestressed Concrete Company, a Division of Newport
Concrete Company, Newport Concrete Company, and the
Bethel Supply Company, herein collectively called the
Respondent and individually called Tobasco, Newport and
Bethel, alleging violations of Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended (29 U.S.C.,
Sec. 151, et seq.), herein called the Act. In its duly filed
answer to the complaint, the Respondent, while admitting
certain allegations of the complaint, denied the
commission of any unfair labor practices.
Pursuant to notice, the hearing in this case was held
before me in Cincinnati, Ohio, on February 17 and 18,
1969. All parties were represented and were afforded full
opportunity to be heard, to introduce relevant evidence, to
TOBASCO PRESTRESSED CONCRETE CO. 747
present oral argument , and to file briefs . Briefs were filed
by the General Counsel and the Respondent. Upon
consideration of the entire record, including the briefs of
the parties, and upon my observation of each of the
witnesses as they appeared before me, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Newport Concrete Co., is an Ohio corporation with its
office and principal place of business at Cincinnati, Ohio.
It has three main divisions, Tobasco, with its place of
business located at Tobasco, Ohio; Bethel, whose place of
business is located principally at Tobasco, Ohio and
Newport, located at Newport, Kentucky. All three
branches or divisions are engaged in the manufacture and
sale of either precast, prestressed concrete products or
ready-mixed concrete.
Tobasco, Newport and Bethel, all divisions of Newport
Concrete Co., constitute a single-integrated business
enterprise with the board of directors of Newport
Concrete Co., formulating and administering a common
labor relations policy for each of the divisions.
During the 12-month period immediately preceeding the
issuance of the complaint herein, a representative period,
Tobasco, Newport and Bethel, individually and
collectively, in the course and conduct of the integrated
business , had an indirect outflow in interstate commerce
of goods and materials of a value in excess of $50,000,
which they sold and shipped to firms, each of which, in
turn , had a direct outflow of goods and materials in
interstate, valued in excess of $50,000 annually, which
they sold and shipped directly across State lines from their
point of origin.
It is admitted, and I find, that Newport Concrete Co.,
and its divisions, Tobasco, Newport and Bethel constitute
an employer as defined in Section 2(2) of the Act engaged
in commerce and in operations affecting commerce as
defined in Section 2(6) and (7) of the Act.
Il. THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find , that the Union is and has
been a labor organization as defined in Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
In June 1968, the parties began to meet to negotiate for
a new collective -bargaining agreement or agreements,
their old contracts with Newport and Bethel being due to
expire on July 1. The events that occurred thereafter in
the bargaining, an eventual strike and an attempt by the
Respondent to keep its business going by unilaterally
subcontracting unit work to the striking employees
constitute the basis for the charges and the complaint filed
herein.
Essentially the complaint alleges that the Respondent
unlawfully refused to bargain with the Union by
subcontracting unit work to the striking drivers thereby
bypassing and undermining the Union; directly negotiating
with employees regarding a proposed health and welfare
plan and by engaging during negotiations generally in
bad-faith bargaining.
The Respondent's answer denies these charges, claiming
that it was the Union which refused to enter into good
faith negotiations and the Respondent which submitted
four separate contract proposals whereas the Union
remained adamant and refused to make any concessions
regarding its original and only proposal.
Thus the issues shaped by the pleadings are:
1. Did the Respondent's action in unilaterally
negotiating subcontracting leases with individual employee
strikers violative Section 8(a)(5)?
2. Did the Respondent, by unilaterally negotiating with
individual employee strikers concerning a proposed health
and welfare insurance program violate Section 8(a)(5)?
3. Did the Respondent by attempting to have union
representatives submit two so-called separate contract
proposals to the union membership for separate voting
and thereafter by withdrawing its contract proposal and
refusing to offer other proposals engage in bad faith
bargaining violative of Section 8(a)(5)?
4. Did the Respondent's original objection to one of the
individuals who attended the first bargaining meeting on
behalf of the Union constitute a violation of Section
8(a)(5)?
B. The Events
Until December 28, 1967, Newport and Bethel were
separate corporations which were for all intents and
purposes solely owned and managed by Walter Kunz. On
December 28, 1967, an agreement of merger was entered
into between the two corporations. The single corporation
thus formed is known as Newport Concrete Co.
In 1965 the Union entered into two separate bargaining
agreements , one with Bethel and one with Newport for the
truckdrivers of each corporation. The only differences
between the two agreements were the reporting times of
the drivers and the Bethel contract contained a so-called
management rights clause. On July 1, 1968, these
contracts expired.
On June 8, 1968, before the expiration of the contracts,
the members of the Union, who were employed by Bethel
and Newport, met and voted to present to the Respondent
as the Union's proposal, a contract between the Union
and the Greater Cincinnati Ready-Mixed Concrete
Producers to which contract the Respondent has never
been a party.
On June 20, the first meeting to negotiate a new
agreement between the Union and the Respondent was
held. Representing the Union at that meeting were George
Starling , the president of the Union, and Glenn Laws, a
committee man representing the Newport Drivers.
Representing the Respondent, were Joel D. Newman,
assistant to President Walter Kunz and Donald E.
Calhoun, counsel to the Respondent. At the outset of the
meeting , the Respondent's representatives objected to the
presence of Glenn Laws without the attendance of John
Sheets, who was the steward for the Bethel Drivers Union.
When it was explained that Laws had been selected by
both the Bethel and Newport Drivers to represent them at
their negotiations , the objection to Laws was dropped and
the matter was not brought up again. Respondent's
momentary objection to Laws did not in any way hinder
or delay the bargaining process.
When the negotiating began at this meeting, Union
President Starling presented Respondent's representatives
with a proposed contract which was identical to the one
entered into between the Union and Greater Cincinnati
Ready-Mixed Concrete Producers. When presenting this
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposal, Starling made it clear that this was the contract
that the employees wanted and which the Respondent
would have to accept; that there would be no major
variations from it.
The parties then went over the proposed agreement
item by item comparing it with the expiring Bethel
contract. The Respondent's representatives asked that
certain of the old items be included or substituted for
items in the proposed agreement and the Union's
representatives said they would take the matter under
advisement. Nothing was finalized. At the close of the
meeting , the date for the next meeting was fixed for June
28.
On June 28, representatives of both parties met as
planned and Calhoun presented to William O. Wilson, the
Union' s business representative, and Laws, the
Respondent's First proposed agreement for the Bethel
drivers only. There was no discussion of the proposal and
Williams stated it would be taken under consideration. On
July 1, by letter, the Respondent made certain corrections
in its proposal.
On July 2, the Union's members, who were
Respondent's employees, met and after going over the
Respondent's proposal, rejected the same by vote of the
members present.
The next meeting was held on July 16. Present for the
Union were Wilson, Laws, and Sheets, steward for the
Bethel drivers. In attendance for the Respondent were
Calhoun and Newman. The parties discussed the rejected
first Bethel proposal item by item, each of the parties
indicating which items were acceptable and which items
were not acceptable. Among the items discussed were the
filling of bins of aggregate at the Respondent's yards, run
trips, health and welfare, arbitration, which the Union did
not want with regard to violations of the contract, a
no-strike clause which the Union rejected, pensions and
other items. At the close of the session the parties agreed
that if a contract could be settled, the wage provisions
would be retroactive to July 1. A letter agreement to this
effect was executed by Kunz several days later, which
agreement was made subject to the employees not going
on a strike.
On or about July 26, the Respondent sent the Union a
second Bethel proposal and a proposal for Newport.
These proposals differed from each other only with respect
to the drivers' reporting times. On July 30, the union
membership rejected both of these proposals.
On August 3 Respondent's employees at both Newport
and Bethel went out on strike. Around the same time,
Wilson and Calhoun had a telephone conversation in
which Wilson informed Calhoun that the membership had
rejected the second Bethel proposal and the Newport
proposal. Wilson also told Calhoun that it was a shame
the strike had to occur because there was so little
difference between the positions of the parties. Again on
August 12, Wilson called Calhoun and, among other
things, suggested that they get together.
On August 21, Calhoun, by letter delivered to the Union
the third Bethel proposal. In his letter, Calhoun indicated
that he was preparing a second Newport proposal and
when it was completed he would inform the Union.
On August 23, at a meeting conducted by Wilson, the
drivers of both Bethel and Newport, considered the third
Bethel proposal submitted by the Respondent. The
proposal was discussed item by item. After this, Wilson
suggested to the assembled drivers that since Calhoun had
indicated a second Newport proposal was forthcoming,
action on the third Bethel proposal be postponed until the
Newport proposal was received. This suggestion was
adopted by the drivers and voting on the third Bethel
proposal was deferred.
On August 27, Calhoun, by letter, withdrew the third
Bethel proposal stating as his reason that the Union had
refused to allow the drivers to vote on the same.'
On September 4, 1968, a meeting was held between the
parties in the presence of a Federal mediator. Attending
the meeting with the Federal mediator were William O.
Wilson, Glenn Laws, John Sheets, and Mr. Calhoun.
After the discussion had started George Starling came in.
Thereafter Calhoun and Starling and the Federal mediator
had a meeting separate from the other meeting. Starling,
at this submeeting, stated that the men wanted the same
contract that the Greater Cincinnati Ready-Mixed
Concrete Association had signed and that they were not
going to accept anything else. Thus, Starling reiterated the
stand that the Union took at the very first meeting
between the parties on June 20. Calhoun explained to
Starling that the Company had lost money, that they
could not afford to pay the same wages and fringe benefits
as the Association because their equipment was old and
they could only haul 4 or 5 yards of concrete at a load
while the other companies were able with their equipment
to haul 12 to 15 yards at a load. He explained that it costs
as much to haul 4 yards of concrete as it costs to haul 16
yards. Starling answered that Bethel could afford to sign
the Association contract because Bethel charged for
ready-mix concrete as much as did the members of the
Association. The meeting ended with no progress being
made.'
Thereafter on September 9 Calhoun sent a letter to
Starling stating why the Respondent could not accept the
Association contract proposed by the Union. Calhoun said
that because the Union would not accept any contract that
provided less than that which the Union negotiated with
the Association, there was nothing that Bethel or Newport
could offer that would be acceptable to the Union.
The foregoing was the last of the communications
between the parties prior to the filing of the charge in the
instant proceeding. Thereafter several meetings were held
and there was some exchange of letters between the
parties. Some time later, specifically on November 26,
1968, Bethel presented the Union with its fourth contract
proposal. Finally, after further negotiations and meetings,
on March 17, 1969, after the hearing in this proceeding
was completed, the hearing in this proceeding was
completed, the Respondent and the Union entered into
separate bargaining agreements with Bethel and Newport.
Thus, collective bargaining has resulted in contracts
between the parties.'
In August 1968, two of the Bethel drivers expressed to
an official of the Respondent that they were curious to see
the health and welfare plan which was being offered by
the Respondent and which was one of the stumbling
blocks in the negotiations . In accordance with this request,
Newman invited the employees, George Taylor and
Howard Ingram , to meet with the representative of the
insurance company which was to provide the health and
welfare plan. Taylor and Ingram were shown the proposed
health and welfare insurance program and Taylor was
All of the foregoing from credited portions of the testimony of Wilson,
Calhoun , and Newman , and from documentary evidence received
'From the uncontroverted testimony of Calhoun which I credit
'The latter information regarding the ultimate signing of agreements
between the Respondent and the Union has been received by the Trial
Examiner administratively.
TOBASCO PRESTRESSED CONCRETE CO. 749
given a copy which , sometime later, he showed to some of
the other employees . Taylor was asked by Newman what
his opinion of the plan was . So far as the record shows,
there was no attempt by the Company to negotiate this
plan separately with Taylor and Ingram.'
During the latter part of August , employee Bill Henize
who had been a truckdriver for Bethel before the strike,
heard about leasing trucks from a man who worked in
another city for a company that leased mixer-trucks to
drivers. Thereafter, on August 30, the employees who
were on strike met at the Union hall to discuss the third
Bethel proposal made by the Respondent . After it was
decided not to vote on this proposal, Henize spoke to
employees Jim Fannin, Arnold Schirmer, and Charlie
Kunz about the idea of leasing mixer-trucks from Bethel.
These employees approached McElfresh , a dispatcher at
the Bethel plant, and asked the latter whether he thought
the Company would lease them mixer -trucks . Henize also
spoke to Ernie Robinson , a supervisor for the Respondent.
In reply to Henize' request, around September 6,
McElfresh told Henize that if the men were interested in
leasing trucks to meet in the office at Bethel. Other
employees were evidently also invited.
The meeting with the employees with regard to the
leasing of trucks was held on September 5 or 6 at the
offices of Bethel . Present were striking employees
Schirmer , Fannin , Kunz, the two Wedmores , Ronald and
Robert, Gregory, and Meeker . Representing the
Respondent were Joel Newman and Walter Kunz. Also
present were the two Bethel dispatchers , McElfresh and
Boggs . The Union was not represented at this meeting
since it was not notified and none of its representatives
were in attendance . Either Walter Kunz or Joel Newman
explained Respondent' s proposed leasing arrangement.
The drivers were told that a company would be created
that would lease the trucks to the employees who wished
to enter into a leasing arrangement ; that the employees
would then be able to lease vehicles from this concern,
pick up cement from Respondent Bethel and deliver that
cement to customers. There is some dispute as to how the
leasing arrangement was explained to the drivers.
Witnesses Ronald Wedmore and Sam Gregory testified
that they were told that their earnings would be
determined by taking a percentage of the price for which
the cement was sold ; that they would purchase their
cement only from Bethel , or Respondent connected
companies , and sell it to their customers ; and that they
did not have to pay out any monies to Bethel Leasing
Company, the company that was to be formed, and that
the leasing was only a paper arrangement.
Employee Henize testified they were told that they
could lease the trucks from Bethel Leasing and that the
drivers who leased the trucks would buy their concrete
from Bethel at a set price to them and could sell it to
whatever customer they could for a suggested price. Also
he testified that they were to be charged for maintenance
of the truck which included the cost of gas and oil. They
were further told that the amount that they sold the
concrete for over and above the price charged by Bethel
plus the maintenance costs would be given to the drivers
as their profit . At the end of each week the leasing
company would supply them with a written settlement
sheet showing the amount of the total sales and the
amount of total purchases less the maintenance and the
'From the uncontroverted testimony of Taylor and from his admissions
on cross-examination.
balance that was left over for the driver. This would be
paid to them.
I credit the testimony of Henize in this respect because
a reading of the lease which was eventually entered into
between the drivers, who desired to enter into the leasing
arrangement, and Bethel Leasing Company contained the
arrangement described by Henize.
On September 7, 1968, or thereabout, Henize,
Schirmer, Fannin, Meeker, and Robert Wedmore signed
lease agreements.
While there is some contradiction in the record as to
how the leasing arrangement worked in practice, I find
that the employees who signed leasing agreements
purchased the materials for the ready-mix concrete from
Bethel at an f.o.b. price at Bethel's plants, that the
ultimate customers were billed in the names of the drivers;
that this billing was at prices actually fixed by
arrangement between the drivers and Bethel ; that the,
monies collected for the sale of the ready-mix concrete to'
the ultimate customers were given to Bethel and that these
accounts receivable were credited to the lessee's account
for material purchased, gasoline and oil charged and any
cost of maintenance. At the end of each week, Bethel gave
to the lessees a settlement sheet showing what the individual
licensee purchased from Bethel , what receipts were
received by the licensee from the customers and what the
gas, oil, and maintenance fees were that were charged to
the lessees. The difference between the cost to the lessees
of the ready-mix concrete plus the maintenance gas and
oil, were subtracted from the amount the lessees received
from the ultimate customer and the difference was paid to
the lessees.'
However, I also find that the customers to whom the
lessee-drivers sold the ready-mix concrete were, except in
very rare instances , former customers of Bethel. I also
find that except for the manner in which the orders were
sent out , that is the first driver in at night being the first
one out in the morning , the way in which the trucks and
drivers were dispatched to customers jobs was the same as
that which prevailed before the strike. I find further that
the dispatches were made by the very same dispatchers
who dispatched the truckdrivers before the strike. Thus, I
conclude that although the leasing arrangement on paper
showed that the drivers were now independent contractors
and that they were, in fact, responsible for the
maintenance and the upkeep of their trucks and purchased
concrete and resold it, in actual result , the manner of
operation was very much the same before the strike and
after the leasing arrangement commenced.
A somewhat different arrangement was made for
drivers Taylor and Ingram. Toward the end of August
1968, Larry Dixon, the son-in-law of Walter Kunz, and
owner of a truck leasing firm by the name of J & L Truck
Leasing, invited Taylor to Walter Kunz' home. At Kunz'
home Taylor entered into a discussion with Walter' Kunz,
Larry Dixon, and Howard Ingram, another of Bethel's
drivers. Kunz told Taylor and Ingram that if they wanted
to work they could operate ready-mix trucks which had
been leased from Bethel to J & L Truck Leasing . Taylor
accepted the offer. When he went to work for J & L
'Accordingly , I do not credit the testimony of Robert Wedmore that he
was paid wages determined by the yards of concrete he hauled . I do not
credit his testimony that he never paid for gasoline oil or truck repairs
even though the lease required such payments.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck Leasing he was dispatched to customers' jobs in the
same manner as he had been dispatched when he was
working for Bethel before the strike. His dispatchers were
the same individuals working out of the same office of
Bethel as they had been before the strike. It should be
noted in connection herewith, that the Union was never
notified about any proposed leasing arrangements utilizing
vehicles previously operated by the Respondent.'
With regard to the foregoing leasing arrangement, Joel
Newmar .assistant to Walter Kunz, president of the
oe.,t, testified that because of the strike, Bethel
a large volume of its customers upon whom
Be..,el depended to make a profit. He stated that the
leasing of the mixers to Bethel's striking drivers was only
for the purpose of helping the drivers economically and
also to help reduce the loss Bethel was incurring by reason
of the strike.
C. Discussion and Concluding Findings
1. The appropriate units and the majority
It is admitted and I find that all truckdrivers employed
by Bethel, excluding all office clerical employees, guards,
professional employees and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
It is further admitted and I find that all truckdrivers
employed by Newport, excluding all office clerical
employees, guards, professional employees, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
Additionally, it is admitted, and I find, that the Union
is the representative for the purposes of collective
bargaining of the employees of each of the units described
above and has been and is now the exclusive
representative of all the employees in each of the said
units for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment and other
terms and conditions of employment.
2. The objection to the Union' s representative
As heretofore set forth, at the outset of the first
bargaining session held on June 20, 1968, the
Respondent's representatives at first took exception to the
presence of employee Laws because they were under the
impression that he represented only the Newport drivers.
However, once they were informed that the union
membership had selected Laws as its representatives for
both Newport and Bethel drivers, they immediately
dropped their objections and no delay in bargaining was
caused by this momentary objection.
The General Counsel contends that such an objection,
however momentary, constitutes a violation of Section
8(a)(5) of the Act. I do not agree in the circumstances of
this case. The objection was but a fleeting one which was
withdrawn immediately upon the explanation that Laws
was authorized to represent both units of employees. Since
there were two bargaining units involved, the
Respondent's hesitancy with regard to Laws was
reasonable and justified. Accordingly, I shall dismiss the
allegation of the complaint which alleges that Respondent
`All of the foregoing from the credited , uncontroverted testimony of
Taylor.
violated the Act by objecting to the Union's
representative.'
3. The discussion of the health and welfare plan with
employees
As above detailed, sometime in August, George Taylor
and Howard Ingram , both Bethel drivers, desired to learn
the details of the health and welfare plan proposed by
Bethel. In consequence of this request, Newman took
Taylor and Ingram to the insurance agent for the
company which was to insure the health and welfare plan
and the details were explained to them. Additionally, a
copy of this plan was given to Taylor. However, there is
nothing in the record to show that any negotiations with
regard to this plan were carried on between Ingram and
Taylor on the one hand and the Respondent's
representatives on the other. Indeed, if anything could be
established by the facts presented it was that this meeting
was for the purposes of information only and the mere
fact that Newman or the insurance agent asked Taylor for
his opinion did not constitute bargaining in any accepted
sense of the word.
Accordingly, I find and conclude that by discussing the
health and welfare plan with Taylor and Ingram,
Respondent did not enter into any bargaining relationship
with them and did not, thereby, circumvent the Union in
any way. I therefore find that this action on the part of
the Respondent's representatives did not constitute a
violation of Section 8(a)(5) and shall dismiss that portion
of the complaint which alleges a violation with relation
thereto.
4. The leasing arrangement
The issue regarding the leasing of the trucks to the
striking Bethel drivers, the facts of which arrangement are
heretofore recited, is whether the unilateral subcontracting
constituted a violation of Section 8(a)(5) of the Act. That
the subcontracting was carried out unilaterally there is no
doubt. There is no evidence that Respondent's
representatives made any attempt, at any time, to discuss
the contemplated subcontracting plan with the Union.
The General Counsel contends that the foregoing
Respondent activity is violative of the Act, but the
Respondent contends that the measures it took merely
constituted lawful subcontracting of the type the Board
and the Courts have sanctioned where an employer takes
such action to protect and continue his business during an
economic strike.
The Board has held that an employer is not under a
duty to bargain over temporary subcontracts necessitated
by a strike, which subcontracting does not transcend the
reasonable measures an employee may take to maintain
operations during a strike.' However, in those cases the
employers let subcontracts to independent contractors not
in any way connected with the employers' operations.
Such subcontracting, taken only for the purpose of
continuing the employer's business during the strike was
undertaken in a context free from any attempts to
undercut the union involved.
However, in the case at bar, the subcontracting, if
indeed it was such, was undertaken with the individual
'Cf. Sears Roebuck and Co, Inc, 139 NLRB 471 , 475, Westinghouse
Electric Corporation , 132 NLRB 406, 407
'Empire Terminal Warehouse Company, 151 NLRB 1359 , affil. 355
F.2d 842 (C.A.D C.), Shell Oil Company, 149 NLRB 283, 285
TOBASCO PRESTRESSED CONCRETE CO. 751
strikers whose union was bargaining with the Respondent.
These individuals can hardly be classified as private,
independent contractors. The effect of the Respondent's
leasing arrangement with the striking drivers was to
bypass the Union, create dissension within the Union and
among the strikers, some of whom either refused to enter
into the leasing arrangement or were not asked , thereby
dissipating in a coercive manner the concerted activities of
the strikers and seriously undermining concerted union
objectives at the bargaining table. Also, in discussing and
entering into the leasing arrangement the Respondent
bargained with individual employees at a time when the
Respondent was clearly obligated to bargain with the
Union. Such conduct violates the Act.'
Accordingly, I find and conclude that by unilaterally
entering into leasing agreements with individual truck
driver-strikers, the Respondent violated Section 8(a)(5)
and (1) of the Act.
With regard to the arrangement between the J & L
Truck Leasing Company and George Taylor who was
hired by J & L but was dispatched by the dispatchers of
Bethel , although the circumstances give rise to a suspicion
that J & L was merely a bookkeeping arrangement by
which the Respondent managed to operate with former
Bethel employees, there is no showing on the record as to
just what J & L's arrangement with the Respondent
actually was. Under these circumstances, it cannot be
determined whether Taylor actually worked for an
independent contractor or continued to work for the
Respondent or, at least, a partnership dominated by
Walter Kunz , the present and chief stockholder of the
Respondent. Accordingly, I make no finding with regard
to Taylor' s arrangement with J & L Truck Leasing
Company.
5. Conclusions as to the course of conduct of the
bargaining
As noted above, the Union, at the outset of the
bargaining on June 20 , in no uncertain terms, demanded
of the Respondent that the contract to be negotiated
would have to conform to that entered into between the
Union and the Greater Cincinnati Ready-Mix Concrete
producers. Despite this demand, the Respondent made not
one, but four separate complete contract proposals with
regard to Bethel and another proposal with regard to
Newport. Nor did the Respondent, at any time, ever
refuse to sit down and bargain with the Union. On the
Union's side, although the Act does not require
concessions by either Party, the Union's attitude can best
be described as adament. The Union's representatives
never moved far from their original demands and certainly
the Union exhibited no spirit of compromise. Under the
circumstances, therefore, the course of bargaining, at least
insofar as the meetings between the Parties and the
conduct at the meetings was concerned, evidenced no bad
faith on the part of the Respondent.
However, other circumstances must be considered in
evaluating the Respondent's attitude and in ascertaining
whether the Respondent at all times approached the
bargaining table in good faith. It can be readily concluded
that at least up until the time that the Respondent
withdrew its third Bethel offer in August upon the Union's
advice to the employees not to vote on that proposal until
'N L R B v Tulsa Sheet Metal Works, Inc, 367 F.2d 55, 59, enfg 149
NLRB 1487 Cf. Shamrock Dairy, Inc, 124 NLRB 494, 500 , enfd 280
F 2d 665
the second Newport proposal was received, the
Respondent did, indeed, bargain in good faith. Nor can it
be concluded that the mere withdrawal of the third Bethel
proposal evidences bad faith in view of the Respondent's
assumption that the Union refused to permit the drivers to
vote on the proposal. However, shortly thereafter on or
about September 7, the Respondent entered into the
leasing arrangement with the striking drivers. At that time
Respondent must have known what the consequences of
this action could and would be. For instance, the
Respondent must be charged with knowledge that the
dissension which such a unilateral arrangement would lead
to could undermine the objectives of the Union at the
bargaining table.
Therefore, on the basis of the foregoing, I find and
conclude that on and after September 7, 1968, the
Respondent did not bargain in good faith with the Union.
In this respect the Respondent has failed to comply with
the good-faith bargaining requirements of the Act and
thereby violated Section 8(a)(5) and (1) of the Act.
6. The nature of the strike
On August 3, 1968, when the employees of Bethel and
Newport went out on strike, the Respondent had
committed no unfair labor practices. The strike was
brought about purely by economic considerations. The
nature of the strike continued to be economic until the
time that the Respondent began dealing unilaterally with
the striking drivers. I have heretofore found that this
unilateral action which led to the leasing arrangement
constitutes an unfair labor practice within the meaning of
the Act. Although the economic considerations continued,
nevertheless, the strike at that point became a dual
purpose strike. Upon the subleasing, the commission of
the Respondent's unfair labor practice caused the strike to
take on the additional nature of an unfair labor practice
strike, which unfair labor practices continued up to and
including the time of the hearing herein.
Accordingly, I find and conclude that from the date of
September 7 when the leasing agreements were entered
into, the strike became and continued to be an unfair
labor practice strike and the strikers became and
continued to be unfair labor practice strikers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship 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 the Respondent has engaged in
certain unfair labor practices it will be recommended that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent, by subleasing its
trucks to the striking drivers unilaterally refused to
bargain collectively with the Union as the exclusive
representative of its employees in two appropriate units, I
will recommend that the Respondent, cease and desist
therefrom. It will further be recommended that all
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subleasing agreements entered into between the
Respondent and the former Bethel drivers be rescinded.
However, the Respondent and the Union having entered
into collective-bargaining agreements for Bethel and for
Newport subsequent to the hearing herein, the usual
bargaining order requiring the Respondent to bargain
collectively until an agreement is reached will be omitted.
Having found that the strike, which commenced as an
economic work stoppage on August 3, 1968, was
converted into an unfair labor practice strike on
September 7, 1968, by the Respondent' s unilateral
subleasing of the trucks to the striking Bethel drivers and
the failure of the Respondent to bargain in good faith on
and after that date, and was thereafter prolonged by
Respondent's unfair labor practices, and having found that
the employees who went on strike became unfair labor
practice strikers as a consequence thereof, it will be
recommended that the Respondent, upon application,
offer the strikers reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dismissing if
necessary any person hired after the latter date, and make
these employees whole for any loss of pay they may suffer
as a result of Respondent's refusal to reinstate them upon
such application.
Upon the foregoing findings of fact and upon the entire
record herein I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer 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 truckdrivers employed by Bethel, excluding all
office clerical employees, guards, professional employees
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining,
within the meaning of Section 9(b) of the Act.
4. All truckdrivers employed by Newport, excluding all
office clerical employees, guards, professional employees
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. At all times since June 20, 1968, and before, the
Union has been the representative, for purposes of
collective bargaining , of Respondent's employees in the
units above-described.
6. By unilaterally entering into leasing agreements with
its striking employees, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act and has thereby interfered with,
restrained, and coerced employees in the rights guaranteed
them in Section 7 of the Act, in violation of Section 8(a)
(1) thereof.
7. By failing and refusing to bargain in good faith with
the Union on and after September 7, 1965, Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
8. By engaging in the aforementioned unfair labor
practices, the Respondent converted the Union's economic
strike into an unfair labor practice strike on September 7,
1968, in consequence of which the employees who were on
strike on and after that date retained their status as
employees and have continued to be entitled to
reinstatement on application to their former or
substantially equivalent positions in preference to all
employees hired since that date, if any.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that Newport Concrete Co., and its
subdivisions Newport Concrete Company and Bethel
Supply Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Dealing directly and individually with employees in
the aforesaid appropriate units concerning leasing of
Respondent's trucks to the said employees and also
concerning wages, benefits and other conditions of
employment.
(b) Refusing to bargain collectively with Truckdrivers,
Chauffeurs and Helpers Local Union No. 100,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as exclusive
bargaining representative of its employees in units herein
found appropriate.
(c) In any similar or like manner interfering with,
restraining, or coercing its employees in the exercise of the
right to bargain collectively through representatives of
their own choosing.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Rescind and make void any and all leasing
agreements made between the Respondent and any of the
striking drivers who signed and entered into the leasing
arrangements with the Respondent as hereinabove
described.
(b) Upon an unconditional offer to return to work,
reinstate all employees in the unit who were on strike on
and after September 7, 1968, to their former or
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, discharging
if necessary to effect such reinstatement any persons
employed subsequent to that date, and make each of such
employees whole for any loss of pay he may suffer as a
result of its refusal to reinstate him upon such application.
The backpay, if any, will be computed on a quarterly
basis in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon at 6
percent per annum, as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
(c) Notify any and all employees in the aforesaid unit
who were on strike against it on and after September 7,
1968, and who are now serving in the Armed Forces of
the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports and all other
records necessary to analyze the amount of backpay that
may become due under the terms of this Order.
(e) Post at its plants at Tobasco and Cincinnati, Ohio,
and Newport, Kentucky, copies of the attached notice
marked "Appendix."" Copies of said notice, to be
In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
TOBASCO PRESTRESSED CONCRETE CO. 753
furnished by the Regional Director for Region 9 shall,
after being signed by its representative, be posted 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 to ensure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 9, in
writing, within 20 days from receipt of this Decision, what
steps it has taken to comply herewith."
All allegations of the complaint herein upon which
violations have not been specifically found above are
hereby dismissed.
Recommendations of a Trial Examiner" in the notice In the further event
that the Board ' s Order is enforced by a decree of the 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 is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 9 , in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
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:
Truck Drivers, Chauffeurs and Helpers Local Union
No. 100, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is
the exclusive collective- bargaining representative of our
employees in the units described as follows:
All truckdrivers employed by Bethel , excluding all office
clerical employees, guards, professional employees and
supervisors as defined in the Act.
All truckdrivers employed by Newport, excluding all
office clerical employees , guards, professional
employees and supervisors as defined in the Act.
WE WILL NOT deal directly and individually with
employees in the aforesaid appropriate unit concerning
leasing of trucks or wages , benefits, or any other terms
or conditions of employment.
WE WILL NOT in any like or related 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 the above-named labor
organization or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act, as modified by
the Labor Management Reporting and Disclosure Act
of 1959.
WE WILL upon their unconditional offer to return to
work, reinstate to their former or substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, all our employees in the
said appropriate units who have been on strike on and
after September 7, 1968, and WE WILL, if necessary to
accomplish this, dismiss any persons hired since that
date.
All our employees are free to join or remain members
of Truck Drivers, Chauffeurs, and Helpers Local Union
No. 100, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, or to refrain from joining or
remaining members thereof.
Dated
NEWPORT CONCRETE CO.
(Employer)
By
(Representative) (Title)
Note: Notify any of the above-described employees who
may be presently serving in the Armed Forces of the
United States of his or her right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board ' s Regional Office, Room 2407, Federal Office
Building , 550 Main Street, Cincinnati, Ohio 45202,
Telephone 513-684-3663.