Peerless Distributing Co.

National Labor Relations Board - Board Decisions

Nov 13, 1963

144 N.L.R.B. 1510 (N.L.R.B. 1963)

1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WILL NOT give force or effect to any agreement or any renewal or extension
of any agreement with Southern Labor Union unless and until it is certified as
described above.
I WILL NOT encourage membership in Southern Labor Union, by discharging
or discriminating in regard to their hire and tenure of employment or any term,
or condition of employment of any of my employees.
I WILL NOT in any other manner interfere with, restrain , or coerce my em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union , or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section 7 of the Act, or to,
refrain from any and all such activities , except as authorized in Section 8(a) (3)
of the Act.
I WILL withdraw and withhold all recognition from Southern Labor Union
unless and until , it is certified as described above.
I WILL reimburse my employees for dues and initiation fees illegally exacted
from them.
I WILL offer Lee and Floyd Dotson, Kenny Smith, and Paris Blackburn re-
instatement to their former or equivalent job.
I WILL make whole Lee and Floyd Dotson, Kenny Smith , and Paris Blackburn.
All my employees are free to become or remain , or to refrain from becoming or
remaining, members in good standing of any labor organization.
FRANK B. SMITH D/B/A LITTLE LUMP COAL CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-I will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati, Ohio, Telephone No. 381-1420, if-
they have any question concerning this notice or compliance with its provisions.
Peerless Distributing Company and Frank Murphy and Local
7-389, Oil, Chemical and Atomic Workers International Union,
AFL-CIO. Cases Nos. 7-CA-3975 and 7-CA-3975(0). Novem-
ber 13, 1963
DECISION AND ORDER
On June 19, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the - above-entitled proceeding, finding that
the Respondent _had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the.Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations- Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and-
MembersLeedom and_13rown]. _
144 NLRB No.,,142,,
PEERLESS DISTRIBUTING COMPANY 1511
The Board has reviewed the rulings made by the Trial Examiner
-at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the Respondent's exceptions and brief, and the
,entire record in these cases, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner only to the
extent consistent with this Decision,and Order.
1. The Trial Examiner found, and we agree, that the Respondent
unlawfully interrogated and threatened its employees in violation
of Section 8 (a) (1) of the Act.
2. We also agree with the Trial Examiner's finding that the Re-
spondent further violated Section 8 (a) (1) by reducing the hours,
and, consequently, the pay, of four truckdrivers-Chapman, Duffey,
Murphy, and Pinnell. The Respondent knew in early June 1962
that these were the four drivers who had signed union cards, at which
time the Respondent's president met with them and discussed their
having signed union cards. The president expressed his displeasure
at their having signed the cards and threatened to subcontract the
work being done by them. Thereafter, Dispatcher McColl, u super-
visor who determined the number of hours each employee worked,
threatened employee Pinnell that hours of work would be reduced
if the Union was successful. The Union won a Board-conducted
election in early July by a vote of 4 to 3. The above four drivers
who had averaged approximately 60 hours and $152 a week prior
to the election, thereafter averaged approximately 47 hours, at $101
a, week, from July until December, when the original complaint
herein was issued. The hours and wages of the three other drivers
in the unit who had not signed union cards remained relatively stable
during the same period. The Respondent contends that the reduc-
tions can be explained by the fact that the drivers changed their
method of logging time so as not to show more than the 60-hour
week maximum permitted by the Interstate Commerce Commission,
and, by the unwillingness of the drivers to haul products to a struck
plant. However, the record indicates that only one driver changed
his method of logging time and the incident concerning the struck
plant was of only 2 days' duration in November. These isolated
events, therefore, do not explain- the drastic cut in hours of all four
union men to well under the 60-hour maximum permissible over the
6-month period. Accordingly, we find that the reduction in hours
and pay was in accord with Respondent's expressed intent to retaliate
against these employees because of their union activities.
3. We further agree with the Trial Examiner that employee Pin-
nell did not quit work voluntarily, but was constructively discharged
by the Respondent in violation of Section 8 (a) (3) of the Act. It is
true that the • record substantiates the Respondent's argument that
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pinnell had complained of receiving fewer work hours than other
drivers prior to the advent of the Union; it is equally clear, however,
that the reduction in his hours and salary occurring after the Re-
spondent became aware of his union activities in June, from ^ap-
proximately 62 hours and $165 a week to 49 hours and $115 a week,
was not merely the continuation of a preexisting situation, but the
result of a new effort by the Respondent,to force Pinnell to quit work
because of his support of the Union.
4. We find, contrary to the Trial Examiner, that the disciplinary
layoff of Chapman was not a violation of Section 8(a) (3) of the Act.
On December 21, 1962, while driving one of the Respondent's trucks,
Chapman noticed that the truck's temperature gauge was reaching
the danger point. Instead of stopping, he decided to continue to a
service station. As a result, considerable damage was done to the
truck. On January 2, 1963, Chapman was notified by the Respondent
that he was to be laid off for 2 months as a disciplinary measure. The
Trial Examiner found that Chapman was guilty of an error in judg-
ment, and that some disciplinary action was justifiable. Nevertheless,
because Chapman was not questioned by any representative of the
Respondent immediately after the extent of the damage became known,
and because the Trial Examiner considered a 2-month layoff to be
unduly severe and extended, the Trial Examiner found that the lay-
off was unlawfully motivated by the Respondent's hope that Chap-
man, a known union adherent, would quit. We do not agree. The
record fails to show when, during the 2-week interval between the
damage to the truck and the layoff, the extent of the damage became
known to the Respondent, or that an inqury of Chapman would have
revealed mitigating circumstances, particularly in view of his admis-
sion that he continued to drive the truck after he knew it was danger-
ous to do so. Nor do we agree that a 2-month layoff was so extended
and severe as to show discriminatory motivation. We join in the Trial
Examiner's finding that some disciplinary action was justified, and we
rely on uncontradicted testimony of McColl, not referred to in the
Intermediate Report, that, on at least two occasions prior to the
advent of the Union, other employees had been discharged for causing
damage to trucks of no greater degree than that caused by Chapman.
Under these circumstances, we conclude and find that the General
Counselhas failed to show by a preponderance of the evidence that the
2-month layoff of Chapman was unlawful, and we shall dismiss this
allegation of the complaint.
5. On August' 16, 1962, following a Board-conducted election in a
unit consisting of the Respondent's truckdrivers and dispatchers, the
Union was certified as the bargaining representative of such employees.
Collective-bargaining negotiations began on September 8, and the
parties met thereafter on October 4, 7, and 30, November 8, and Decem-
PEERLESS DISTRIBUTING COMPANY 1513
ber 4. On October 23, the Respondent sent to the Union its proposed
contract, which contained a management-rights clause 1 concerning
the contracting of work to common or contract carriers in the area.
At the October 30 negotiating meeting, the Union stated its objection
to the clause whereupon the Respondent's representative replied, "The
company intended to run the business as they had before in the future,
and that [the clause] certainly was going to be in any contract that
they had." There was never any further discussion of the matter.
The Respondent's president testified gat the hearing, without contradic-
tion, that the Respondent, in the past, had contracted out approxi-
mately 50 percent of its work to common carriers.
At the negotiating meeting of November 8, at which other economic
issues were introduced for the first time, the Respondent's representa-
tive stated that it would not grant any economic benefits not already in
effect, giving as its reason that it "had to stay competitive." At the
next meeting, on December 4, when the Respondent reiterated its re-
fusal to grant any economic benefits, the Union requested that it be
permitted to look at the Respondent's books. The Respondent re-
fused, stating, "Your union or no other union is going to look at these
books."
The Trial Examiner found that the Respondent violated Section
8(a) (5) of the Act by ('a) insisting on the subcontracting clause and
(b) refusing to give the Union pertinent financial information. The
Respondent excepted to these findings on the grounds, as to (a), that
subcontracting is a mandatory subject of bargaining and its proposal
was made in good faith; and, as to (b), that it was not claiming any
financial inbility to grant economic benefits, and was, therefore, not
obliged to give the Union the financial information it requested.
(a) We find merit in the Respondent's contention that its insistence,
in good faith, on the subcontracting clause was not unlawful. The
Respondent presented the Union with a written contract which con-
tained a clause permitting it to continue to subcontract work, as it
had been doing. When the Union objected to this clause, the Re-
spondent reiterated its wish to continue its past practice and insisted
that such a clause be made part of the final agreement. There was
no further discussion of the matter.
It is settled law that subcontracting is a mandatory subject of
bargaining,2 and that an employer may insist upon a management-
The clause states;
The Company has and shall retain . . . the right in all respects to use common
carriers of petroleum or petroleum products and to contract with others for any such
work of any type or nature as it, the Company, shall in good faith determine to be
the Company's best interests whether or not there be employees on layoff or available.
2Fibreboard Paper Products Corporation, 138 NLRB 550 ( Member Rodgers dissenting),
enfd 322 F . 2d 411 (C.A.D.C.). See also Town & Country Manufacturing Company, Inc.,
and Town & Country Sales Company, Inc., 136 NLRB 1022 ( Members Rodgers and Leedom
dissenting on this Issue ), enfd. 316 F . 2d 846 (CA. 5). Although Member Leedom holds
that subcontracting is not a mandatory subject of bargaining , he concurs in the result
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights clause dealing with a mandatory subject of bargaining, if
done in good faith, without violating Section 8 (a) (5) of the Act?
The evidence does not show that the Respondent acted in bad faith in
seeking to maintain its right to subcontract. Accordingly, we find,
under all the circumstances, that the Respondent did not, by the con-
duct in question, violate Section 8(a) (5) of the Act.
(b) We are in agreement with the Trial Examiner, however, that
the Respondent violated Section 8(a) (5) of the Act by its refusal to
furnish the financial information requested by the Union. The Re-
spondent refused to grant the Union any wage increase or other
economic benefit on the ground that it had to remain "competitive,"
and also refused all the Union's requests for financial information.
As the Supreme Court has held, "bargaining lacks good faith when an
employer mechanically repeats a claim of inability to pay without
making the slightest effort to substantiate the claim." 4 The Re-
spondent contends that it was not claiming financial inability to grant
economic concessions, but merely that it could not grant them and
remain competitive, and that it was therefore not obligated to give
the Union data as to its financial status. We do not agree. The
Respondent's argument that it was not pleading inability to pay, but
only that it desired to remain competitive, is self-contradictory.
Thus, if granting economic benefits would, according to the Respond-
ent, have the effect of reducing its competitiveness, it follows that
the Respondent was asserting its financial inability to grant economic
benefits .5 Moreover, if the Respondent had furnished the relevant
data, the Union might have been able to show that the Respondent
could grant a wage increase and still remain competitive, or, in the
alternative, the Union might willingly have reduced its demands.
Any such resolution of the major economic issues was precluded by
the Respondent's intransigence in this matter. Accordingly, we find
that, by refusing to furnish the Union with the pertinent financial
information requested, the Respondent violated Section 8(a) (5) of
the Act.
ORDER
The Board adopts as its Order the Recommended Order 6 of the
Trial Examiner with the following additions and modifications :
reached herein as (1) the Respondent , in proposing the subcontracting clause, was acting
in accord with the decision of a majority of the Board that subcontracting is a mandatory
subject of bargaining , and (2 ) the evidence does not show that the Respondent urged
inclusion of such a clause in bad faith.
3 N.L.R.B. v. American National Insurance Co., 343 U.S. 395.
N L R .B. v. Truitt Mfg Company , 351 II S. 149.
Cincinnati Cordage and Paper Company, 141 NLRB 72.
The Recommended Order is hereby amended by substituting for the first paragraph
therein , the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Peerless Distributing Company, its officers, agents , successors, and
assigns; shall:
PEERLESS DISTRIBUTING COMPANY 1515
1. In paragraph 1(b) substitute `constructively discharging, or re-
ducing the working hours of" for "discharging , causing to quit, or
laying off." 7
2. Add the following as the last paragraph of the Recommended
Order :
"IT IS HEREBY ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations of the Act not specifically found
herein."
7 The following will be Inserted as the second full indented paragraph in the notice :
We WILL NOT discourage membership in or activity on behalf of Local 7-389, 011,
Chemical and Atomic Workers International Union, AFL-CIO , or any other labor
organization , by constructively discharging , or reducing the working hours of, our
employees because of their union membership , or in any other manner discriminating
against them in regard to their hire or tenure of employment or any term or condi-
tion of employment.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
An original and an amended charge were filed respectively on October 26 and
December 21, 1962, in Case No. 7-CA-3975, by Frank Murphy , an individual.
On December 28, 1962 , a complaint and notice of hearing in that case was issued by
the General Counsel of the National Labor Relations Board . The Respondent's
answer was duly filed. On January 11, 1963, a charge in Case No. 7-CA-3975(2)
was filed by the above-named labor organization . On March 25, 1963, General
Counsel issued an order consolidating the two cases , a consolidated complaint, and
a notice of hearing thereon . The Respondent thereafter filed its answer to the con-
solidated complaint . The complaint alleges and the answer denies that the Re-
spondent has engaged in unfair labor practices in violation of Section 8(a) (1), (3),
and (5 ) of the National Labor Relations Act, as amended. Pursuant to notice, a
hearing was held in Detroit , Michigan , on May 14 and 15 , 1963, before Trial Ex-
aminer C. W. Whittemore.
At the hearing General Counsel and the Respondent were represented by counsel
and were afforded full opportunity to present evidence pertinent to the issues, to
argue orally , and to file briefs . Briefs have been received from both counsel.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at the conclusion of the hearing, is made by the following find-
ings, conclusions , and recommendations.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Peerless Distributing Company is a Michigan corporation maintaining its prin-
cipal office and place of business in Detroit , Michigan . It is engaged in the sale
and distribution of petroleum and related products.
During the calendar year 1962 , the Respondent purchased and transported pe-
troleum products valued at more than $75,000 from the Sun Oil Refinery at Sarnia,
Ontario, to States of the United States , including Michigan.
The complaint alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
Local 7-389, Oil, Chemical and Atomic Workers International Union, AFL-CIO,
is a labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
All issues here raised by the complaint involve alleged conduct by agents of the
Respondent following efforts begun late in May 1962, by four of the Company's
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seven regular truckdrivers to seek better wages and bargaining through the above-
named labor organization.
In preliminary summary such alleged unlawful conduct includes interference, re-
straint, and coercion, discrimination in regard to tenure and conditions of employ-
ment, and refusal to bargain after the Union had been certified by the Board.
More specifically, the complaint alleges and the answer denies that the Respondent:
(1) through certain agents, during the organizational period, threatened employees
with economic reprisals to discourage such activities; (2) as soon as union activity
became known to management, caused the four known union adherents to suffer re-
duction of working hours and changes in driving assignments; (3) by so reducing
such working hours for one driver, Pinnell, brought about his employment termina-
tion; (4) imposed a discriminatory 2-month layoff upon driver Chapman; (5)
insisted, as a condition precedent to signing an agreement with the Union, that any
contract entered into must permit management to contract out all work then being
performed by the employee drivers in the appropriate unit; and (6) refused to pro-
vide the Union with access to company data to substantiate is refusal, on economic
grounds, to grant any economic benefits.
B. Relevant facts and conclusions
1. Interference, restraint, and coercion
Of the seven regular drivers in an appropriate unit employees Duffey, Pinnell,
Murphy, and Chapman signed union authorization cards in the latter part of May
1962. Duffey was the leader in this move, obtaining cards from a union repre-
sentative and distributing them to his fellow drivers. The four above-named met
at Duffey's home on May 27, and turned their authorization cards over to union
representative.
By letter of June 1, Johnston, a union official, notified E. Fleischman, president
of the Respondent, of the Union's claim of majority status, requested recognition
as bargaining agent, and asked that a meeting date be set for contract negotiations.
Shortly after receipt of this letter Fleischman, through Felton Everett, who has
work-assignment authority over three shop employees, not included in the appropri-
ate unit here involved, arranged for the four drivers to come to his office on a Sunday
morning. It is undisputed that Everett: (1) asked Duffey if he would meet with
Fleischman and tell him why he wanted to join the Union; (2) asked Murphy to
meet with the company president and said he thought they "might get a company
union of some kind"; and (3) told Chapman he would "set up an arrangement to
meet Mr. Fleischman in his office," for the purpose of explaining "our griev-
ances . and as to why we joined the Union." 1
Credible testimony of the four drivers establishes, and it is found, that at this
meeting Fleischman asked why they had joined the Union, and told them he wished
they had consulted him before doing so. He told them that he had an unpleasant
experience with a union in the past. He said he was in the trucking business to
make money, and declared that another company had offered to buy his trucks and
haul cheaper than he could, and also said that he could have "brokers" haul for
him. The drivers explained, upon his inquiry, that they believed they were not
being treated fairly in "getting the right amount of hours." Fleischman agreed
that he would look into this matter.2
1 The Trial Examiner cannot credit Fleischman's claim that he agreed to meet with the
men upon Everett's statement to him that they had joined the Union and wanted to "talk
to me " In the first place it would be slightly short of absurd to believe that four truck-
drivers, each of long service with the Company, would take formal action to authorize the
Union to bargain for them and then approach a shop supervisor who had no authority over
them to arrange a meeting to tell the employer why they had joined In the second place,
as noted, as a witness Everett did not deny having asked the drivers to attend the meet-
ing. And although Everett was on the stand only long enough to say that Fleischman's
testimony as to their conversation before the meeting was "accurate," he did not give
the impression of one so devious as to tell Fleischman one story and the drivers another
in a situation which concerned him not at all.
2 The Trial Examiner cannot credit Fleischman's denial that he said anything at this
meeting about other carriers. At first denying that anything was said about a union, he
changed his testimony to say that they volunteered the information that they had "signed
up to belong to the Union," and that he then told them that it "was their privilege." He
did not specifically deny having opened the meeting by asking the drivers why they had
joined the Union and "What the trouble was"-the obvious purpose of the meeting ar-
ranged by him.
PEERLESS DISTRIBUTING COMPANY 1517
Shortly after the union cards were signed Dispatcher James McColl, conceded
by the Respondent to be a supervisor within the meaning of the Act, called Murphy
into his office, told him he had heard that he and the three others had joined the
Union, and accused him of being the "instigator." He told the driver that they would
lose their Christmas bonus, as well as their Thanksgiving and Christmas turkeys,
and that they would get no more than 40 hours work a week-that other runs would
be contracted out.
McColl also called driver Pinnell to his office and asked him how many had
joined the Union. A few days later Pinnell was again called in by McColl, who
told him that the Company never had had a union and never would have one.
On several occasions thereafter, and before the election on July 10, 1962, McCall
told the same driver that the number of working hours would be cut if the men
"went Union," and some might lose their homes.3
Shortly after the first organizational meeting Respondent Vice President Al Rob-
inson asked driver Chapman if he had joined the Union .4
The Trial Examiner concludes and finds that the Respondent interfered with, re-
strained, and coerced employees in the exercise of rights guaranteed by Section 7 of
the Act by the above-described interrogation of drivers by Fleischman, McColl, and
Robinson; by the explicit threats and clearly implied threats of McCoil and Fleisch-
man of such economic reprisals as contracting out work being done by employees in
the bargaining unit, reducing the number of working hours, and the loss of the cus-
tomary fringe benefits of Christmas bonuses and Thanksgiving and Christmas turkeys.
Also violative of Section 8(a) (1) of the Act was McColl's declaration to the effect
that the Respondent never had dealt with a union and never would .5
2. The discriminatory reduction of hours
The complaint alleges and the answer denies that the Respondent reduced the cus-
tomary number of hours of the four union members in order to discourage union
membership and activity.
Dispatcher McColl is and has been at all material times in charge of assigning the
seven drivers to runs, and controls the number of hours each shall work each week.
According to his own testimony it is his responsibility to try to have each man get
in at least 60 hours a week, averaged over a 2-week period. And as noted in the
subsection above, he threatened the union members with reduction in hours if they
continued with their union activities.
Documents in evidence, showing the number of weekly hours and pay for each
driver, amply supports General Counsel's position as to actual reduction in hours
for the union adherents from June 1962, when company knowledge of union activity
and the identity of those who joined is not disputed, until the end of 1962.6
A summary comparison appears below. The four known union adherents are
Chapman, Duffey, Murphy, and Pinnell. The three nonunion regular drivers in
the unit are Baker, Davidson, and Ferguson (a fact inferred from the official tally
of ballots at the Board election-there being three regular drivers who voted against
the Union).
B The findings as to McColl's interrogations and threats of economic reprisals are based
upon the credible testimony of the employees quoted As a witness McColl claimed that
the only conversation relating to the Union he had with any employee was with Pinnell,
and that he had only asked the driver "if he had," after Pinnell had volunteered the in-
formation that "they had joined the Union " His denial of having evade economic threats
to any employee is not credited Although two nonunion drivers were said by Pinnell to
he present at one of his meetings in McColl's office, neither was called by the Respondent
to support McColl's denials.
4 Chapman's account of this interrogation is not disputed
8 Although it has been found, in effect, that Felton Everett acted as the communicating
agent for Fleischman in arranging the meeting described, it appears unnecessary to make
a specific finding of an unfair labor practice regarding Everett's mere suggestion, in talk-
ing to one driver, that they might "get a company union of some kind." There is no evi-
dence that Fleischman himself made such a proposal at the meeting, and Everett' s remark
seems no more than a mere speculation, idly voiced.
e Such data in evidence extends to the latter part of February 1963 The Trial Ex-
aminer has not attempted to analyze the detailed figures beyond the last of December 1962,
when the original complaint was issued.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1962 Weekly Averages
Three nonunion
drivers
Four union
members
Hours Pay Hours Pay
January------------------------------------------------=------- 70 $182 63 $162
February------------------------------------------------------ 68 181 71 186
March--------------------------------------------------------- 60 150 59 143
April ----------------------------------------------------------- 57 143 54 136
May----------------------------------------------------------- 66 171 63 161
June ----------------------------------------------------------- 57 141 52 126,
July------------------------------------------------------------ 67 171 52 126
August--------------------------------------------------------- 69 183 43 96
September----------------------------------------------------- 65 169 44 99
October-------------------------------------------------------- 57 139 50 112
November----------------------------------------------------- 59 147 44 98
December------------------------------------------------------ 59 149 47 108
The record contains no reasonable explanation for the marked reduction in weekly
hours and pay for the union members. McColl offered some vague reason involving
a "state law" and its requirement that he not work men over "sixty hours" a week
and the fact that some drivers logged city time in addition to their over-the-road
time. The data shows that the nonunion men continued after June to put in well
over 60 hours a week, while the union drivers dropped as low as 43 hours.7
In the absence of reasonable explanation by the Respondent by the obvious dis-
parity in treatment, the Trial Examiner concludes and finds that the reduction in
hours for the union adherents was in implementation of the threat made by McColl
himself, and that such discrimination interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by the Act.
3. The constructive discharge of Pinnell
The complaint alleges and the answer denies that the Respondent constructively
discharged driver Pinnell by so reducing his hours that he was forced to quit, and
that such reduction was brought about by the Respondent's efforts to discourage
union activity.
It has been found above that McColl on several occasions before the July election
told Pinnell that hours would be cut if the men "went union" and that some might
lose their homes.
Company records in evidence establish that while from January through May 1962,
Pinnell had averaged about 62 hours per week, from June through the first week
in September he averaged but about 49 hours per week. The same records show
that before his union activity became known he had averaged about $165 per week,
and that from June until he finally left early in September his average weekly earnings
were about $115.
Pinnell's testimony to the effect that with so marked a reduction in pay he
could not afford to continue his job with the Respondent is clearly not unreasonable.
The $50 weekly of which he was deprived may well have made the difference between
maintaining or losing a home-as McColl had threatened might be the result of con-
tinued union activity.
That McColl's reduction of Pinnell's hour was prompted by his resentment of the
driver's union activity is well established by the latter's undisputed testimony to the
effect that just before he quit he asked McColl why he was getting fewer hours.
In reply McColl told him to take the matter up with the Union.
The Trial Examiner concludes and finds that the preponderance of credible
evidence sustains the allegations of the complaint as to Pinnell, and that he was in fact
unlawfully caused to leave his employment to discourage union activity.8
7 The Trial Examiner has not attempted to deal with fractions and odd cents in his
compilation The figures are in the "round." Allowance has been made in such com-
pilation, of course, for a period of about 2 months when Duffey was out with an injury,
as well as the fact that Pinnell left the Respondent's employ in the first week of September.
8 See Trumbull Asphalt Co of Delaware, 136 NLRB 1461, 1489.
PEERLESS DISTRIBUTING COMPANY 1519
4. The layoff of Chapman
The complaint alleges and the answer denies that driver Chapman was unlawfully
laid off for a period of 2 months in January 1963.
In brief, the circumstances are these.
In the latter part of December 1962, while making a delivery to a service station
and when about a half mile from his destination, Chapman observed that the tem-
perature gauge was reaching the danger point . Being so close to his destination and
being on the main highway he decided to continue to the service station. It was, no
doubt, an error in judgment , for it developed that considerable damage was caused
to the engine and it later had to undergo an overhaul . It appears that the petcock,
for draining the radiator, had become loose and the water level had reached a point
where coolant failed to circulate and cool the engine . It is undisputed that he was
neither reprimanded nor later questioned about the matter. But early in January
he received a letter summarily laying him off for a period of 2 months.
Although no doubt some disciplinary action was justifiable , under the circum-
stances heretofore described of the Respondent 's forcing Pinnell to quit, and the
fact that no company representative even bothered to query him after the extent
of the damage became known , the Trial Examiner is convinced and finds that the
prime motive in bringing about so severe and extended a layoff was to rid the Re-
spondent of a known union adherent. It is reasonable to believe that the Respondent
hoped that, because of the long layoff, Chapman would not return to work, but
would obtain employment elsewhere.
The Trial Examiner concludes and finds that the layoff was unlawful, and in,
tended to discourage union membership and activity, and that such action interfered
with, restrained , and coerced employees in the exercise of rights guaranteed by the
Act.
5. The refusal to bargain
The Respondent's answer admits the allegations of the amended complaint that
following a Board-conducted election in July the Union was certified on August 16 as
the exclusive representative for bargaining purposes of all employees in an appropriate
unit , consisting of all truckdrivers and dispatchers of the Respondent 's Detroit,
Michigan , plant , excluding office clerical employees , professional employees , guards,
and supervisors as defined in the Act.
Negotiations between the parties looking toward a contract thereafter began. On
or about October 23, the Respondent sent to the Union its proposal of a contract.
Under the "Management Rights" clause in this proposal appears this provision:
The Company has and shall retain . . . the right in all respects to use com-
mon carriers of petroleum or petroleum products and to contract with others
for any such work of any type or nature as it, the Company, shall in good
faith determine to be to the Company's best interests whether or not there be
employees on layoff or available.
The union spokesman at the next bargaining session, held on October 30, ob-
jected to this provision, since to have acceded to the proposal would have permitted
the Employer to deprive the employees in that precise unit of any work, if it saw
fit. Counsel for the Respondent, at the hearing, conceded that the Union's repre-
sentative was accurate in his testimony when quoting him as insisting : "that (the
above-quoted provision) had to be in the contract" and "that, certainly was going
to be in any contract that they had." The Respondent declined to retreat from
this adamant position.
Counsel for the Respondent also conceded that the union representative 's account
of the position he took at a meeting on November 8, was accurate-to the effect that
the Company refused to grant , in any contract , any economic benefits above those
already being received by the employees in the unit. As the reason for this position
counsel for the Respondent maintained that the Company "had to stay competitive."
At the next meeting, December 4, counsel for the Respondent again declined to
"move" on any economic item. Since the Respondent had based this position upon
the claim that it had to remain "competitive" the union representative requested
that he be permitted to "look at the books"-a clear request for information within
the Respondent 's possession to substantiate its claimed inability to grant any in-
creases. Respondent 's counsel flatly refused to permit such examination , stating:
"Your union or no other union is going to look at these books."
The foregoing facts amply support , in the opinion of the Trial Examiner , General
Counsel 's contention that both by- insisting , as a condition precedent to entering into
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any agreement, that the Union relinquish its plain right to bargain concerning the
mandatory, subject of subcontracting out work being performed by. employees In
the appropriate unit, and by refusing to provide financial information after basing
refusal to grant any economic benefits upon inability, the Respondent has failed
and refused to bargain in good faith, as required by the Act. General Counsel
properly cites , as authority for the first point, Town & Country Manufacturing Com-
pany, Inc., and Town & Country Sales Company, Inc., 136 NLRB 1022, enfd. 316
F. 2d 846 (C.A. 5), and Fibreboard Paper Products Corporation, 138 NLRB 550,
and for the second point N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, affg. 110
NLRB 856.
By such refusal to bargain in good faith the Respondent has interfered with, re-
strained , and coerced employees in the exercise of rights guaranteed by Section 7
of the Act.
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 the Respondent has engaged in unfair labor practices in
violation of the Act, the Trial Examiner will recommend that it cease and desist
therefrom and take certain affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent , upon request , bargain collectively
in good faith with the Union concerning rates of pay, wages , hours, and other
terms and conditions of employment, and, if an understanding is reached , embody
such understanding in a signed agreement . It is specifically recommended that the
Respondent remove, as a condition precedent for reaching a contractual agreement,
its insistence upon its right , without consulting and negotiating with the Union, to
contract out work customarily assigned to employees in the bargaining unit and
that it furnish the Union with pertinent information , upon request , if in future nego-
tiations it declines to grant economic benefits upon any ground of financial inability.
It will be recommended that the Respondent offer employee Pinnell immediate
and full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges , and make him and em-
ployees Chapman , Duffey, and Murphy whole for any loss of pay suffered by
reason of the unlawful discrimination against them . In view of the conceded
company practice of equalizing hours of work for its drivers, it is recommended
that the four above-named drivers be made whole by paying each of them a sum
of money equal to that which he would have earned , since June 1, 1962, absent the
discrimination against him , using as a standard base for such determination the
average monthly pay of the three nonunion drivers during said period. In the cases
of Pinnell and Chapman, deduction shall be made of net earnings , if any, during the
period of unlawful discharge or layoff, and is to be computed on a quarterly basis
in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289.
In all cases interest at the 6 percent per annum shall be added to the backpay, to
be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 7-389, Oil , Chemical and Atomic Workers International Union, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. All truckdrivers and dispatchers of the Respondent 's Detroit , Michigan , plant.
excluding office employees , professional employees , guards, and supervisors as de-
fined in the Act , constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. By virtue of Section 9(a) of the Act the said labor organization has been since
August 16 , 1962 , and now is , the exclusive representative of all employees in the
said appropriate unit for the purpose of collective " bargaining with respect to rates,
of pay, wages, hours of employment , and other terms and conditions of employment.
PEERLESS DISTRIBUTING COMPANY 1521
4. By refusing, since on or about October 30, 1962, to bargain collectively in
good faith with the said labor organization as the exclusive representative of all'
employees in the said appropriate unit, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
5 By discriminating as to the tenure of employment of employees, thereby dis-
couraging membership in and activity on behalf of the above-named labor organiza-
tion, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean.
ing 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 the case, the Trial Examiner recommends that the Respondent,
Peerless Distributing Company, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with Local 7-389, Oil, Chem-
ical and Atomic Workers International Union , AFL-CIO, as the exclusive repre-
sentative of its employees in the appropriate unit described below:
All truckdrivers and dispatchers at its Detroit, Michigan , plant, excluding
office clerical employees , professional employees , guards, and supervisors as
defined in the Act.
(b) Discouraging membership in and activity on behalf of the above-named or
any other labor organization by discharging , causing to quit , or laying off any
of its employees because of their union membership and activity , or in any other
manner discriminating in regard to hire or tenure of employment , or any term or
condition of employment.
(c) Interrogating employees as to their union adherence in a manner violative
of Section 8 (a)( 1 ) of the Act.
(d) Threatening employees with economic reprisals to discourage union
membership.
(e) In any other manner interfering with, restraining , or coercing employees in
the exercise of their right to self-organization , to form labor organizations , to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choice , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection , or to re-
frain 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 in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above -named labor organization as
the exclusive bargaining representative of the employees in the above-described
appropriate unit, in the manner described above in the section , entitled "The Remedy,"
and embody any understanding reached in a signed agreement.
(b) Offer immediate and full reinstatement to employee Pinnell , to his former
or substantially equivalent position , without prejudice to his seniority and other
rights and privileges , and make him and employees Chapman, Duffey, and Murphy
whole for any loss of pay suffered by them by reason of the discrimination against
them, in the manner described in the section entitled "The Remedy."
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze and
compute the amounts of backpay due.
(d) Post at its Detroit , Michigan , plant copies of the attached notice marked
"Appendix." 9 Copies of said notice , to be furnished by the Regional Director for the
'If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
In the notice. In the further event that the Board's Order is enforced by a decree of a
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seventh Region, shall , after being duly signed by a representative of the Respondent,
be posted by it 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 in-
sure that such notices are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from the date of the
receipt of this Intermediate Report and Recommended Order, what steps the Re-
spondent has taken to comply herewith. 10
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 "
10 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, 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 Re-
lations Act, as amended, we hereby notify you that:
WE WILL bargain collectively, upon request, in good faith with Local 7-389,
Oil, Chemical and Atomic Workers International Union, AFL-CIO, as the
exclusive representative of all employees in the bargaining unit described below,
with respect to rates of pay, wages, hours of employment, or other terms and
conditions of employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The unit is:
All truckdrivers and dispatchers at our Detroit, Michigan, plant, ex-
cluding office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
WE WILL offer A. D. Pinnell immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him and Howard Duffey, Frank Murphy, and
Charles Chapman whole for any loss of pay suffered by them by reason of our
discrimination against them.
WE WILL NOT interrogate employees regarding their union adherence in a
manner violative of Section 8(a) (1) of the Act, and will not threaten them with
economic reprisals to discourage union membership and activity.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of the right to self-organization, to form labor or-
ganizations, to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in other 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 amended.
PEERLESS DISTRIBUTING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above-named employee, if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 500
Book Building, Detroit, Michigan, Telephone No. 963-9330, if they have any
questions concerning this notice or compliance with its provisions.