Sioux City Bottling Works

National Labor Relations Board - Board Decisions

Dec 27, 1965

156 N.L.R.B. 379 (N.L.R.B. 1965)

SIOUX CITY BOTTLING WORKS 379
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 Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT unilaterally change seniority rights, rates, of pay, wages, hours
of employment, or other terms or conditions of employment without first giving
notice to, and bargaining with respect thereto with, Textile Workers Union of
America, AFL-CIO, as the exclusive representative of all our employees in the
appropriate bargaining unit.
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 Textile Workers Union of America, AFL-CIO,
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 Sec-
tion 7 of the Act, and will refrain from any and all such activities.
WE WILL make Estelle Dunn whole for any loss she may have suffered as a
result of our failure to accord her superseniority.
CONE MILLS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 1831 Nissen
Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone No.
723-2302.
Reuben R . Miller, and Reuben R. Miller and Philip L. Miller,
Trustees of Morris Miller, d/b/a Sioux City Bottling Works
and General Drivers, Warehousemen & Helpers Union Local
No. 383, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case No. 18-CA-1980.
December 27,1965
DECISION AND ORDER
On October 25, 1965, Trial Examiner Robert E. Mullin issued his
Decision in the above -entitled case, finding that Reuben R. Miller,
individually, and Reuben R. Miller and Philip L. Miller, Trustees of
Morris Miller, as copartners doing business under the trade name Sioux
City Bottling Works, together herein called the Respondent, had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner 's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision , and a plea in bar.
156 NLRB No. 41.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 [Chairman McCulloch and Members Brown and Zagoria].
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,' and the plea in bar,2 and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner .3
[The Board adopted the Trial Examiner's Recommended Order.]
i The Trial Examiner found, among other things, that, as of the time when the Re-
spondent made the unilateral changes in terms and conditions in employment which
are in issue in this case , the Union represented a majority of the Respondent ' s employ-
ees in an appropriate unit, that the Union had not abandoned and waived Its right to
represent the employees, that the Respondent had no such doubt as to the Union's
majority as would free the Respondent of any further obligation to meet and bargain
with the Union , and that the Respondent was still obligated to meet and bargain with It,
notwithstanding the fact that a prior collective -bargaining agreement had expired. The
Respondent has filed no exceptions to these findings . Accordingly , we adopt these findings
without further comment.
9 To remedy the unlawful unilateral changes found, the Trial Examiner recommended
that the Respondent be required to restore the status quo ante but that the restoration
order be conditioned upon the desires of the employees in the unit , as expressed through
their collective-bargaining agent. In its plea in bar, the Respondent asserts that "the
matters, Issues and requirements ," set forth in the Trial Examiner 's remedy and that
portion of the Recommended Order based thereon, are now moot because the Union has
rejected an offer of restoration of the status quo ante and the Respondent has gone out
of business As these matters may best be determined in the compliance stage of this
proceeding , we reject the plea In bar.
8 See, particularly , N.L.R.B. v. Crompton -Highland Mills, Inc., 337 U.S. 217 , reversing
and remanding 167 F. 2d 662 ( C.A. 5), setting aside 70 NLRB 206.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge filed on January 6 and February 19, 1965,
respectively, by the Charging Union, herein also called Teamsters, the General
Counsel of the National Labor Relations Board, by the Regional Director for Region
18 (Minneapolis, Minnesota), issued a complaint, dated February 19, 1965, against
the Respondent Employer. The complaint set forth the specific respects in which it is
alleged that the Respondent violated Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended, herein called the Act. The Respondent duly filed an
answer in which it conceded certain facts with respect to its business operations, but
denied all alleged unfair labor practices with which it is charged.
Pursuant to due notice, a hearing was held before Trial Examiner Robert E. Mullin
at Sioux City, Iowa, on April 20, 1965. All parties appeared at the hearing with
counsel and were given full opportunity to examine and cross-examine witnesses, to
introduce relevant evidence, to argue orally after presenting the evidence, and to file
briefs. The parties waived oral argument. Subsequent to the hearing, able and com-
prehensive briefs were submitted to me by the Respondent and the General Counsel.
Upon the entire record in the case, including the briefs of the parties, and from his
observation of the witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Reuben R . Miller, individually , and Reuben R. Miller and Philip L. Miller, Trustees
of Morris Miller , are, and have been at all times material herein , copartners doing
SIOUX CITY BOTTLING WORKS 381
business under the trade name Sioux City Bottling Works, herein called Respondent or
Employer. The Respondent's principal office and place of business is located at Sioux
City, Iowa, where it has been engaged for many years in the mixing, bottling, and dis-
tributing soft drinks. During the calendar year ending December 31, 1964, the
Respondent, in the course and conduct of its business operations, sold and distributed
products valued in excess of $200,000, of which amount approximately $45,000 in
sales and deliveries were to points outside the State of Iowa. During the same period,
the Respondent purchased goods and materials valued at more than $70,000 directly
from points outside the State of Iowa. Upon the foregoing facts, the Respondent
concedes and I find that the Sioux City Bottling Works is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes and I find that the Union is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondent and the Union in this case have had a collective-bargaining relation-
ship for over 20 years. Their last contract expired in June 1963. Subsequent thereto
the parties carried on negotiations over a long period of time, but no agreement ever
materialized. In August 1964 the Respondent discontinued payments to a union-
sponsored health and welfare policy and the Teamsters' pension plan. In October of
that year it instituted a new employee health and accident insurance plan. The
General Counsel and the Union allege that this action was taken unilaterally and in
violation of the Respondent's obligation to bargain. The Respondent, on the other
hand, denies all wrongdoing and contends that in August 1964, after many months of
protracted, but fruitless, bargaining, the parties reached an impasse, that thereafter the
Union abandoned all further bargaining and by such action freed the Employer to take
the action in question.
B. The appropriate unit
The General Counsel contends, the Respondent concedes, and I find that all route
driver salesmen, special delivery drivers, working foremen, inside production employ-
ees, driver helpers and maintenance employees who are employed in and out of the
warehouse of the Employer's Sioux City, Iowa, plant, excluding all office clericals,
guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9(b) of the Act.
C. The alleged refusal to bargain
At all times material herein , the unit defined above contained approximately eight
employees . The Respondent concedes that until about August 6, 1964, the Union
represented a majority of these workers . The issue raised as to majority representation
subsequent to that date will be discussed later herein.
In March 1963, the Union notified the Respondent that it proposed to negotiate a
new contract . Thereafter , pursuant to its terms , the existing agreement expired on
June 1, 1963 . During this period, the Union negotiated a contract with the Lane Bot-
tling Works , a competitor of the Respondent . In its initial proposal to the Employer,
Frank Santi , business agent for the Union , asked that the Respondent execute a con-
tract, identical in its terms with the Lane agreement . Morris Miller , manager of the
Sioux City Bottling Works, declined, on the ground that, for economic reasons, the
Respondent could not meet this demand Collective -bargaining sessions were held
from time to time during the summer and fall of 1963 . Finally, at a meeting with
the Union , held at the union hall and with the employees present, Miller told them that
he could not afford to sign a Lane -type contract but that as a counterproposal the
Employer would offer them a wage raise of 10 cents an hour and an increase of 1 cent
a case on commissions.- The employee -members of the Union , however, voted to
reject this offer.
No further meetings were held until November , when a Federal mediator brought
the parties together again. At this time, the Union renewed its demand for a contract
with the Respondent which would be similar to the one which it had'with Lane.
'The "inside" employees at the warehouse received an hourly wage and the driver
salesmen were paid on a commission basis.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Again, Miller stated that the Respondent was financially unable to enter such an
agreement. At the suggestion of the mediator, however, Miller agreed to put into
effect immediately the wage and commission increases that the Employer had offered
earlier. The Union accepted this offer and thereupon agreed that the Employer could
operate without a written contract for the time being.2
Early in June 1964 Santi called upon Miller and asked that negotiations for a new
contract be resumed. According to Miller, Santi told him at this time that the new
agreement would have to be the same as that which the Teamsters had with Lane "or
nothing." 3 Miller protested both then and later that it was financially impossible for
the Respondent to bind itself to any such contract.
On July 21, 1964, Santi and Miller again discussed the prospect of an agreement,
but there was no change in the type of contract which the Union sought. On July 27
the employees in the unit voted to strike, if no agreement was reached In a letter
dated July 29, the Teamsters notified the Respondent that such action would be
taken if a contract was not arrived at by midnight of August 9. Upon receiving this
letter, Attorney Margolin, counsel for the Respondent, requested that the parties
meet for further negotiations.
On July 31, 1964, the parties met again. The Union was represented by Santi, its
business agent, and James J. Murphy, its secretary-treasurer. The Respondent was
Attorney Margolin, Morris Miller, and Attorney George F. Davis. There was no
substantial conflict as to what occurred at this session. Early in the meeting Santi
complained that the Respondent was behind in making payments to the Union's
health and welfare fund. Attorney Margolin assured him that this matter would be
rectified shortly. Thereafter, the Union renewed its demand that the Respondent
agree to the same type of collective-bargaining agreement as that which it had with
the Lane Bottling Works Miller reiterated that the Respondent was financially
unable to pay any higher wages than those which included the increase granted the
preceding fall. In support of his contention that no further raises were possible, the
Respondent supplied the union representatives with a financial statement for an 18-
month period from January 1, 1963, to June 30, 1964. This set out in detail the
Respondent's income and expenses and reflected a consistent loss. According to this
statement, in the calendar year 1963, the Company lost $2,042.60 and for the 6-month
period ended June 30, 1964, its losses had risen to $2,582.04.4 The Respondent's
representatives invited the Union to have its own accountant examine the Employer's
books and records to verify the financial picture set forth in the statement of profit
and loss, and offered to arrange for such an audit at any date that would be convenient
for the union accountant. Santi, however, declined to accept this invitation and
declared that the Union was not interested in examining the Respondent's books.
According to him, the Union was interested only in a contract which would be equal
to that which the Teamsters had negotiated with Lane. Miller again stated that this
was impossible because of the Respondent's serious financial problems. Shortly
thereafter, no agreement having been reached, the meeting closed
On August 6 the parties met again. This time, the same representatives appeared
for the Union and the Respondent as had met the week before. In addition, W. M.
Hopkins, a Federal mediator, was present. The Union again asked for a Lane-type
contract, and the Respondent once more refused. The mediator then asked if the
The foregoing findings are based on the testimony of Morris Miller The testimony
of the latter was credible and, in substantial measure, was corroborated by that of Frank
Santi.
3 This finding and the quotation are from the credible testimony of Morris Miller.
4 Further evidence of the Respondent 's critical financial situation was reflected by the
testimony of Plant Manager Miller on this issue , all of which was undenied and uncon-
tradicted In 1962 the entire plant had to be relocated because of a condemnation action
brought by the city to acquire right -of-way for a public road . At that time the Respond-
ent sought to sell the business, but was unable to find a purchaser . When its efforts to
liquidate were unsuccessful , the Employer secured a substantial loan through the Small
Business Administration which enabled it to relocate the plant and continue its opera-
tions. However , under the terms of this loan and the related mortgages , until the Em-
ployer eliminated deficits and began to earn a profit, none of the partners was allowed
any remuneration , and the salary of Plant Manager Miller was severely limited. Pursuant
to this arrangement , in 1963 Miller was allowed to draw $7,200 and in 1964 only $5,000.
It is significant that during the latter year , three of the employees in the unit earned
more in wages than Miller himself was paid ( LeRoy Jones received $5 , 535, Neil Gordon
$6,566, and John Lubanski $5,376 ), and three others earned almost as much as the
plant , manager ( Glen Phillips received $4,947, Norman Swanson $4 ,986, and Paul Urbanis
$4,901).
SIOUX CITY BOTTLING WORKS 383
Respondent would execute this type of agreement, provided that its effective date was
postponed for 6 months. Miller refused, on the ground that since the Respondent
was then on the verge of insolvency, it could not hope to be much better off within
6 months. Thereafter, the plant manager told the union representatives that the costs
of the Lane contract were such that even if its effective date were deferred for 6
months, its imposition at that point would force the Company out of business, whereas
if the Respondent continued without any additional labor costs for the time being,
it might be able to survive. Attorney Davis testified that the Respondent then offered
to put in writing the informal agreement on raises which had been made in the fall of
1963, and thereafter continue to make all pension and health and welfare payments
and maintain all fringe benefits which the employees had been getting. According to
Davis, however, the Union's response was that nothing would suffice other than for
the Employer to sign a contract similar to that which it had with Lane.
It was undenied that there was considerable discussion at this session about the
fact that that very night the employees were scheduled to hold a meeting at the union
hall for the purpose of casting a final vote on whether to go on strike. It also was
undemed that during this discussion Miller made the comment that if the employees
went on strike he was prepared to operate as best he could and, if necessary, convert
his operations to a cash-and-carry basis to eliminate the need for drivers. According
to Miller, at one point during the conference, when the mediator asked Santi what
would happen if, at the union meeting that evening, the men voted not to strike, the
Teamsters business agent stated that in such event the men would be "out of the
union." 5 Attorney Davis corroborated this testimony by Miller. Santa denied that
he had made this remark, whereas Murphy testified that he could not recall whether
he or Santi had made such a comment It is my conclusion that, notwithstanding
Santi's denial, he did make the remark which both Miller and Attorney Davis attrib,
uted to him.
That evening six of Respondent's employees met at the union hall and, after an
extended debate, voted 3 to 3 on the question of whether to strike the Respondent's
plant. The next morning the employees reported for work as usual. According to
Miller, as they did so, several of them told him, "Well, we're out of the Union We
voted to work " When questioned as to the identity of any employee who made this
remark, Miller testified that one of them was Glen Phillips and that either employee
Paul Urbanis or Norman Swanson was present at the time. In his rebuttal, the Gen-
eral Counsel called the last three named employees as witnesses. Swanson testified
that he was on vacation on the day in question and Urbanis testified that he had no
recollection as to any conversations which occurred on that day. Phillips conceded
that he had talked with Miller on that morning and that he informed the plant man-
ager that the employees had voted not to strike. He denied, however, that he told
Miller that the employees were "out of the union " On the other hand, on cross-
examination, Phillips conceded that during this period he discussed with Miller the
fact that he had asked Business Agent Santi for a withdrawal card from the Team-
sters. Upon a consideration of the testimony of these witnesses as to the disputed
comment, it is my conclusion that Miller was the more credible and that on the morn-
ing of August 7 when the employees reported for work they told him that they had
voted not to strike and that they were then "out of the union."
Business agent Santi testified that he never mfoimed Miller as to the outcome of
the strike vote because he learned from the employees themselves that they had con-
veyed this information to the plant manager. About August 10 Attorney Margolin
telephoned Santi. According to the latter, counsel for the .Respondent told him that
Miller was of the opinion that the Teamsters no longer represented the employees
and, for that reason, he wanted Santi's views on the question. Santi testified that he
told Margolin that, insofar as he was concerned, the Union still represented the
employees and that, apart from the fact that the men had voted not to strike, there
had been no change in the bargaining relationship. Santi's testimony as to this con-
versation was credible and undenied.
Subsequent to the telephone conversation which Santir'had With Attorney Margolin
there appears to have been no further contact between the, parties. Neither the Union
nor the Respondent requested any more meetings and no further bargaining sessions
were ever held.
Subsequent to the last meeting which the parties had on August 6, 1964, the
Respondent paid its obligation to the Teamsters' pension and health and welfare funds
for the month of July 1964, but made no.further payments thereafter. ^Dufing the
month of August, Plant Manager Miller informed the men of this action, and also
5 The quotation is from Mi11er's testimony. .. r I . , ., ,
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told them that he planned to secure another health and accident insurance policy for
them. Thereafter, on October 6, 1964, the Respondent established a new group health
and accident insurance plan.
Prior to August 1964, the Respondent withheld union dues from the employees'
wages pursuant to checkoff authorizations which the individual employees had exe-
cuted. At some point each month the Respondent routinely mailed a check to the
Union for the total amount of dues withheld. Plant Manager Miller testified that
after the men informed him that they had voted not to strike and that they were out
of the Union, he told them that he would deduct the August dues from their pay that
month, but would discontinue the practice thereafter. When the Union did not receive
a check for the amount of these dues, Business Agent Santi went to the plant and was
given the money which had been withheld. In September, Santi wrote the Respond-
ent to request that the dues money for that month be forwarded. In a subsequent
conversation with Miller, the latter told Santi that he did not intend to withhold dues
from the employees' wages any longer because it was his understanding that the men
had voted at the meeting on August 6 that they no longer wanted the Union to repre-
sent them. Santi stated his disagreement with the position which Miller expressed
and told the plant manager that the vote to which he referred was only on the question
of whether the men wanted to strike and not on whether they would stay in the Team-
sters. Santi was unsuccessful, however, in urging that further dues be withheld.
Although the Respondent did not continue to withhold dues from the employees'
wages, the employees themselves did pay their dues directly to the Teamsters there-
after. In August 1964 there were eight employees in the bargaining unit 6 At the
time of the hearing, seven of these individuals were still employed by the Respondent.
The eighth had retired and a new employee had been hired to fill his place.? The
unit still had only eight members. Murphy, secretary-treasurer of the Union, testi-
fied, credibly and without contradiction, that only two of the original seven employees
had been suspended for nonpayment of dues,8 whereas five of the original number
had continued to pay dues and were still members in good standing at the time of
the hearing in this matter. From this it is clear, and I find, that since five out of the
eight employees in the appropriate unit remained dues-paying members of the Team-
sters, the Union had a majority at all times material during and subsequent to
August 1964.
From the findings set forth above, it is significant that although on August 7, and
after their vote not to strike, the employees told Miller that they were "out of the
union," thereafter the Respondent withheld union dues for the entire month of
August from their wages, and later turned this money over to the Teamsters business
agent. In September when Miller told Santi that no further dues would be withheld
because he assumed that the men were no longer members, Santi contradicted this
statement and, in asking that the Respondent continue to withhold dues, asserted that
the men had never voted themselves out of the Union .9 More significantly, after Plant
Manager Miller told Attorney Margolin that the Union no longer represented the
employees, counsel for the Respondent telephoned Santi on August 10 to inquire as to
his views on the matter. It was uncontradicted and undenied that in his response,
Santi told Margolin that the vote in question had been solely on the issue of whether
or not to strike, that the Teamsters still represented the employees, and that the bar-
gaining relationship between the Union and the Respondent had not been changed
in any way. Moreover, at no time subsequent to August 6 did the Respondent file a
representation petition seeking an election to resolve the question as to whether the
employees had abandoned the Teamsters.10
G These were: Glen Phillips, John Lubanski, Paul Urbanis, Norman Swanson, LeRoy
Jones, Richard Harschfield, Neil Gordon, and Bob Hoefer.
7 Hoefer retired in August 1964 and was replaced by one Paul Becker.
8 Lubanski paid no dues after August 1964 and Gordon paid no dues after October 1964.
Murphy testified that both had been suspended.
9 The General Counsel, in his brief, seeks to attach some significance to the fact that
the employees did not revoke their checkoff authorizations In writing . Miller contended
at the hearing that the oral statements voiced by the employees had been conclusive
enough for him. The withholding authorizations were never offered In evidence. Con-
sequently, It was never established that, by their terms, they could be revoked only in
writing. On the basis of the present record it cannot be held that the provisions of
the authorizations excluded an oral revocation.
19 See Ray Brooks v. N.L.R.B., 348 U.S . 96, 103, where the Court stated, "If an em-
ployer has doubts about his duty to continue bargaining , it is his responsibility to peti-
tion the Board for relief , while continuing to bargain in good faith at least until the
Board has given some indication that his claim has merit."
SIOUX CITY BOTTLING WORKS 385
In view of the facts set forth above, I conclude and find that there is no support in
the record for the Respondent's assertion that subsequent to August 6, 1964, the
Union abandoned and waived its right to represent the employees. Moreover, not-
withstanding the spontaneous remarks of the men who reported for work on the
morning of August 7, the Employer's action thereafter did not indicate that it had
such doubt as to the union membership of the employees as would free the Respond-
ent of any further obligation to meet and bargain with the Teamsters as majority rep-
resentative. Since, as found earlier, the Union did, in fact, maintain its majority in
the appropriate unit, the Respondent was still obligated to meet and bargain with it,
notwithstanding the fact that a prior collective-bargaining agreement had expired.
The Crestline Company, 133 NLRB 256-257; The Celotex Corporation, 146 NLRB
48, 55; cf., Rose Printing Company, Inc., 146 NLRB 638, 639.
The General Counsel contends that the Respondent did not offer any counter-
proposal subsequent to the resumption of negotiations early in July 1964, and that it
met with the Union merely to inform it that the Employer could not and would not
change its position. From this the General Counsel alleges that the Respondent
bargained in bad faith throughout the period from early July to the present The evi-
dence, however, does not support this position. In response to the Union's demand
for a contract identical with that of the Respondent's competitor, the Respondent
offered to reduce to writing the oral agreement on wage raises reached the preceding
November and continue all other terms of the old contract which had expired in 1963.
This proposal met with outright rejection from the Union. Thereafter the adamancy
of the Union in seeking the Lane-type contract, notwithstanding the manifest finan-
cial straits in which the Employer was mired, left the Respondent with little leeway.
In any event, "The fact that respondent did not accede to the Union's proposal but
endeavored to secure a contract which it regarded would be compatible with its
financial condition, does not of itself establish lack of good faith." N L.R.B. v.
Wonder State Mfg. Co., 344 F. 2d 210, 217 (C.A. 8). For this reason, I do not find
that the Respondent bargained in bad faith prior to August 6, 1964.
On the other hand, the Supreme Court has held that even in the absence of sub-
jective bad faith on the pact of any employer, unilateral changes in the terms and
conditions of employment amount to a refusal to negotiate and, of necessity, obstruct
bargaining. N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co.,
369 U S. 736, 742-743. Thus, in the period subsequent to the last meeting of the
parties in August, the Respondent was not free, in view of the Union's continued status
as majority representative, to act unilaterally with respect to such employee benefits
as the Teamsters' health and welfare insurance and pension plan. Whereas the par-
ties had come to an impasse as to the wage issue and the Respondent, for manifest
financial reasons, felt that it could grant no further wage raises, Miller conceded that
he had never discussed with the Union the abolition of the pension plan or the sub-
stitution of another health and accident policy for that which he had with the Union.
The situation here is not comparable to that reflected in those cases where the
parties bargained to an impasse on a wage increase and later the employer put into
effect a wage raise which the parties had discussed thoroughly at some earlier time.
Central Metallic Casket Co., 91 NLRB 572, 573.11 Since the Respondent in the
present instance had not discussed with the Union in any previous bargaining ses-
sions the termination of the Teamsters' health and welfare and pension plans and the
substitution of another type of health and accident insurance, it was not free to
accomplish this action without consulting the majority representative of its employ-
ees Kenneth B. McLean, d/b/a Ken's Building Supplies v. N.L.R.B., 333 F. 2d 84,
87 (C.A. 6); N.L.R.B. v. Wonder State Mfg. Co., 344 F. 2d 210, 215 (C.A. 8);
Montgomery Ward & Co, Incorporated, 90 NLRB 1244, 1247; General Motors Cor-
poration, 81 NLRB 779-780, enfd. 179 F. 2d 221 (C.A. 2); W. W. Cross and Com-
pany, Inc., 77 NLRB 1162, 1163-1164, enfd 74 F. 2d 875 (C.A. 1). Accordingly,
I conclude and find that, in this instance, by unilaterally terminating the union-
sponsored health and welfare policy and the Teamsters' pension plan in August 1964
"In its brief the Respondent cites N.L.R.B. v. Tex-Tan, Inc., 318 F. 2d 472 (C.A. 5),
as support for the unilateral action in question . That case, however, has no applica-
tion to the issue here present . In Tex-Tan, in contrast with the instant situation, a
wage increase there involved had been discussed with the union. Subsequent to an
impasse in the bargaining , the employer put the proposed raise into effect. In holding
that this action was not unlawful , the court stated that "an employer may 'unilaterally'
grant increases no greater than those previously offered." [Emphasis supplied.]
Tex-Tan, ibid., 481. See also N.L R B. v Katz, supra, 369 US. 736, 745.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and thereafter , in October 1964, unilaterally instituting a new group insurance plan,
the Respondent violated Section 8 (a) (5) and ( 1) of the Act . Tide Water Associated
Oil Company , 85 NLRB 1096-1097, and cases cited , supra.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it is recommended that the Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies of the Act.
The Board customarily holds that where an employer effectuates unlawful uni-
lateral action , he must not be permitted to retain the fruits of such unfair labor prac-
tices and must be required to restore the status quo ante. John W. Bolton & Sons,
Inc., 91 NLRB 989, 991, 1001; Herman Sausage Co., Inc., 122 NLRB 168, 172-173,
enfd. 275 F. 2d 229 (C.A. 5); cf, Armstrong Cork Company v. N.L.R.B, 211 F. 2d
843, 847-848 (C.A. 5). On the other hand, in fashioning a remedy here, account
should be taken of the "long and salutary history of harmonious relations that the
parties have enjoyed" (Central Illinois Public Service Company, 139 NLRB 1407,
1419, enfd. 324 F. 2d 916 (C.A 7) ). For this reason and because of the possibility
that subsequent to the hearing the matters involved in the unilateral changes have
been settled through negotiations with the Union , the restoration order in this instance
should be conditioned upon the desires of the employees in the unit , as expressed
through their collective-bargaining agent. Herman Sausage Co., Inc., supra; Beacon
Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 963. Accordingly, the order
will require that if the employees, through their union, desire the restoration of the
status quo ante, the Teamsters' welfare and pension funds should be reimbursed in an
amount equal to the sum of the moneys which would have been paid into such funds
absent the unlawful termination, subsequent to August 6, 1964, of payments into such
funds. Cascade Employers Association, Inc., 126 NLRB 1014, 1016, set aside on
other grounds, 296 F. 2d 42 (C.A 9).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. All route driver-salesmen, special delivery drivers, working foremen, inside pro-
duction employees , driver helpers, and maintenance employees who are employed in
and out of the warehouse of the Respondent's Sioux City, Iowa, plant, excluding
office clericals , guards, watchmen , and supervisors, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
3. At all times material the Union has been the exclusive representative, for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act, of
all the employees in the aforesaid appropriate unit.
4. By refusing, since August 1964, to bargain collectively in good faith with the
Union as to the termination of the union-sponsored health and welfare policy and
pension plan and as to the institution of a new group insurance plan, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
5. By the aforesaid refusal to bargain with the Union , the Respondent has inter-
fered with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record ,' and pursuant
to Section 10(c) of the Act, I recommend that the Respondent , Reuben R. Miller, and
Reuben R. Miller and Philip L. Miller, Trustees of Morris Miller, d/b/a' Sioux City
Bottling Works, their officers, agents , successors , and assigns , shall:
1. Cease and desist from- . 0
(a) Refusing to bargain collectively in-good faith' concerning wages, hours, and
other terms and conditions of employment with ' General Drivers , Warehousemen &
Helpers Union Local No. 383 , International Brothe 'rhood' of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, as the exclusive representative of all employ-
ees in the following 'appropriate unit: All route' driver-salesmen , special deliverydrivers, working foremen , inside production employees , driver helpers, and mainte-
SIOUX CITY BOTTLING WORKS 387
nance employees employed in and out of the warehouse at the Respondent 's Sioux
City, Iowa, plant, excluding office clericals , guards, watchmen , and supervisors as
defined in the Act.
(b) Making any unilateral changes affecting employees in the unit represented
by the Union , with respect to any health and welfare insurance or pension plan without
prior consultation with the Union.
(c) In any like or related manner interfering with, restraining , or coercing employ-
ees in the exercise of their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request , bargain collectively with the above -named Union as the
exclusive representative of all the employees in the appropriate unit, and embody in
a signed agreement any understanding reached.
(b) Revert to the Teamsters ' health and welfare plan and pension fund in effect
immediately prior to August 6, 1964, if the aforesaid Union, as the exclusive repre-
sentative of the employees , so requests.
(c) Pay into the Teamsters ' health and welfare fund and into the Teamsters ' pension
fund such sums as would have been paid into said funds absent the unlawful changes
in working conditions , if the aforesaid Union desires restoration of the working con-
ditions and terms of employment existing immediately prior to August 6, 1964.
(d) Preserve and , upon request , make available to the Board and 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 determine
the amount of the sums to be paid into the aforementioned Teamster's welfare and
pension funds.
(e) Post at its plant in Sioux City, Iowa, copies of the attached notice marked
"Appendix ." 12 Copies of the said notice, to be furnished by the Regional Director
for Region 18, shall , after being duly signed by the Respondent , be posted by the
Respondent immediately upon receipt thereof , and maintained by it for 60 consecutive
days thereafter , in conspicuous places, including places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered , defaced, or covered by any other material.
(f) Notify the Regional Director for Region 18, in writing, within 20 days from
the date of the receipt of this Decision and Recommended Order, what steps the
Respondent has taken to comply herewith 13
"In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order " shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United
States Court of Appeals , Enforcing an Older" shall be substituted for the words "a
Decision and Order "
13 In the event that this Recommended Order is 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 Relations
Act, as amended , we hereby notify our employees that:
WE WILL, upon request, bargain with General Drivers, Warehousemen &
Helpers Union Local No. 383 , International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, as the exclusive representative of
all the employees in the bargaining unit described below, with respect to rates of
pay, wages , hours, and other conditions of employment , and, if an understand-
ing is reached , embody such understanding in a signed agreement . The bar-
gaining unit is:
All route driver-salesmen , special delivery drivers, working foremen ,, inside
production employees , driver helpers , and maintenance employees who are
employed in and out of the warehouse of our Sioux City, Iowa, plant,
excluding office clericals, guards , watchmen , and supervisors.
217-919-66-vol. 15 6-2 6
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT make any unilateral changes with respect to any health and
welfare insurance or pension plan affecting employees in the aforesaid unit with-
out prior consultation with the Union.
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, join, or
assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
WE WILL, if requested by the aforesaid Union, revert to the Teamsters' health
and welfare plan and pension fund that was in effect immediately prior to
August 6, 1964.
WE WILL, if requested by the said Union, pay into the Teamsters' health and
welfare fund and into the Teamsters' pension fund such sums as would have been
contributed to said funds if such payments had not been unilaterally discon-
tinued in August 1964.
REUBEN R. MILLER, AND REUBEN R. MILLER AND PHILIP L. MILLER,
TRUSTEES OF MORRIS MILLER, D/B/A SIOUX CITY BOTTLING WORKS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 316 Federal
Building, 110 South Fourth Street, Mineapolis, Minnesota, Telephone No. 334-2618.
Lumber and Sawmill Workers Local Union No. 2797 and Stoltze
Land & Lumber Company. Case No. 19-CP-84. December 28,
1965
DECISION AND ORDER
On September 22,1965, Trial Examiner James R. Hemingway issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and briefs were filed by the
General Counsel and the Charging Party.
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 Trial Ex-
aminer's Decision, the exceptions, the briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations.
[The Board adopted the Trial Examiner's Recommended Order.]
156 NLRB No. 47.