Spriggs Distributing Co.

National Labor Relations Board - Board Decisions

Aug 12, 1975

219 N.L.R.B. 1046 (N.L.R.B. 1975)

1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spriggs Distributing Company and Teamsters Local
Union No. 413, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Case 9-CA-8782
August 12, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On March 17, 1975, Administrative Law Judge
Julius Cohn issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.!
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Spriggs Distributing Compa-
ny, Portsmouth, Ohio, its officers; agents, successors,
and assigns, shall take the action set forth in said
recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Admrmstrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case was
heard at Portsmouth, Ohio, on December 4, 1974. The
charge in this proceeding was filed September 16 and
served September 18, 1974. Thereafter on October 31,
1974, the Regional Director for Region 9 issued a com-
plaint alleging that Spriggs Distributing Company , herein
called Respondent or the Company, violated Section
8(a)(1) and (5) of the Act by refusing to bargain in good
faith with Teamsters Local Union No. 413, affiliated with
the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen, and Helpers of America , herein called the
Union, and otherwise independently violated Section
8(aXI) of the Act. Respondent filed an answer denying the
commission of unfair labor practices and affirmatively al-
leging that it has a collective -bargaining agreement with
the Union and that Respondent has instituted an action in
the United States District Court for the Southern District
of Ohio for a declaratory judgment to such effect. At the
hearing the General Counsel was permitted to amend his
complaint to allege a further violation of Section 8(a)(5) in
that Respondent sought to bypass the Union by dealing
directly with its employees.
Issues
Whether the Union and the Company consummated a
collective-bargaining agreement on June 2, 1974.
If not, whether Respondent has refused to bargain with
the Union.
Whether Respondent violated the Act by dealing direct-
ly with its employees thereby bypassing their collective-
bargaining representative.
Whether Respondent violated Section 8(a)(1) of the Act
by threatening employees engaged in protected concerted
activities.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross -examine
witnesses , to argue orally, and to file briefs . The parties
submitted briefs which have been carefully considered.
Upon the entire record of the case , and from my obser-
vation of witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is an Ohio corporation engaged in the
wholesale distribution of malt beverages in Portsmouth,
Ohio. During the 12 months last preceding the issuance of
the complaint, the Company purchased and received goods
valued in excess of $50,000 directly at its Portsmouth ware-
house from points outside the State of Ohio. The complaint
alleges, the answer admits , and I find that the Company is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent has been engaged for many years in the
business of distributing malt beverages from its warehouse
219 NLRB No. 165
SPRIGGS DISTRIBUTING COMPANY
in Portsmouth, Ohio . A. G. Spriggs is its president and
James Pauken its general manager. Since at least 1957, the
Company's employees , now five , have been represented by
the Union ; and, until the expiration of the last collective-
bargaining agreement on June 2, 1974, Respondent and the
Union were parties to agreements in a multi-employer unit.
On April 25 1 at a meeting attended by Business Agent
Monroe Boyd and employee representatives of three com-
panies, Respondent's employees indicated that they wished
to separate and conduct their own negotiations. Subse-
quently, the executive board of the Union agreed to the
separation of the Spriggs' employees from the multi-em-
ployer unit.2
Prior to 1974, negotiations were conducted by the busi-
ness agents with the employers in the presence of represen-
tatives of the employees , usually the stewards . Upon reach-
ing agreement, all employees voted to ratify the agreement
at the union hall.
B. The Facts
The facts and the chronology in this matter are essential-
ly undisputed. At the end of March the Union notified
Respondent of its intention to seek a new collective-bar-
gaining agreement and requested Respondent to bargain.
According to General Manager Pauken, he called the
Union on April 4 and wrote on April 17 to arrange a meet-
ing. During the month of April, the Union, in accordance
with its past custom , met with representatives of the em-
ployees of the distributors which comprised the multi-em-
ployer bargaining unit . The purpose was to discuss various
proposals with the employees before submitting them to
the employers. It was at this meeting that Respondent's
employees requested that the Union engage in separate
bargaining on their behalf. As noted, the Union eventually
agreed to this but not before it transmitted a contract pro-
posal on April 29 to all the employers , including Respon-
dent. In the main the Union sought additional vacations
after 15 and 20 years, two extra holidays, pension contribu-
tion of $4.00 , wage increase of $1.50 per hour for the first
year, and an opening for wages in the second and third
years , plus 20 cents per hour additional wages for the stew-
ard.
General Manager Pauken testified that upon receiving
this proposal he met with the employees at the warehouse
about May 8 and proposed for their consideration a new
method of compensation. This was the so-called "base and
case" proposal . Under this system , the employees who
were being paid on an hourly basis would be converted to
a method of weekly salary plus commission. About May 10
the employees responded by telling Pauken they were not
interested in his "base and case " proposal . It is undisputed
that this proposal and incident was not discussed in any
way with any union representative , nor was the Union no-
1 All dates hereinafter refer to 1974.
2 The complaint alleges , the answer admits, and I find, the following unit
of the Respondent's employees to be appropriate for collective-bargaining:
All transport drivers, driver- salesmen , warehousemen and helpers employed
by Respondent at its Portsmouth warehouse including the head warehouse-
men; but excluding all office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
1047
tified of the submission to the employees.
On May 13, Pauken mailed the Company's counterpro-
posal to the Union. In it the Company-ptoposed to retain
the vacation provisions of the current contract, offered one
extra holiday (Election Day), a pension contribution of $2
a week the first year followed by $3 and $3 in the ensuing
years, a wage increase of 30 cents each year for 3 years,
and no additional pay for stewards.
Both Pauken and Shop Steward Cooley testified that on
May 16 they went to the union hall and met with Business
Agent Haynes. Neither Haynes nor the other business-
agent, Boyd, have any recollection of a meeting on this
date. In any event 3 both Pauken and Cooley state that the
meeting was brief and there was some discussion of the
Company's counterproposal but there was no agreement
on anything.
On May 31 a meeting was held at the union hall, attend-
ed by Boyd for the Union,.Pauken for Respondent, and all
five employees. In the interim the Union had prepared on
May 29 a final proposal in which it sought two additional
holidays, Good Friday and Election Day, $1 increase in
the pension plan for each year, a 50-cent hourly increase in
wages in each of 3 years, 4 weeks' vacation for employees
with 20 years, and 20 cents per hour additional for stew-
ards. It appears that Pauken agreed to the holidays and
vacation subject to approval by Spriggs and rejected the
other terms. The Company's counterproposal was dis-
cussed and rejected by the Union. After Pauken left the
meeting a strike vote was taken among the five employees
who voted to strike in the event an agreement was not
consummated by the expiration date of the previous con-
tract, June 3. The results of this poll were not communicat-
ed to the Company or at least there is no evidence that the
Union in any way indicated to the Company that it would
strike absent a contract.
Returning to the May 31 meeting it is clear that no
agreement was reached. The parties were far apart on wag-
es, and of course, no accord as to steward's pay. According
to Business Agent Boyd there was no agreement on any
items . However Cooley averred that agreement was
reached on pension "probably," and maybe a holiday.
Malone, another employee present at the meeting who tes-
tified for the Respondent, stated that agreement had been
reached on two paid holidays, vacation and pension. How-
ever, on cross-examination he stated that there was no
agreement._Pauken himself claimed that holidays and va-
cation were resolved at this meeting. But Cooley who- also
testified for the Company said that Pauken merely main-
tained that he may be able to go along on one holiday, and
at the conclusion Pauken had said that he would have to go
back to talk to Mr. Spriggs about pensions and holidays.
Pauken also admitted that steward's pay had been an issue
all along, that it continued to be part of the Union' s final
proposals on May 31, and that of course he had not agreed
3 There is some slight discrepancy between the testimony of Pauken and
Cooley. Pauken said that he had mailed his counterproposal on May 13,
whereas Cooley stated that Pauken had contacted him and asked him to go
with him to take the proposal to the union office . In addition Cooley testi-
fied that both Boyd and Haynes were present at this meeting whereas Pauk-
en stated that only Haynes was present . It is not necessary to resolve these
differences , and as the Union witnesses do not deny it, I shall assume the
meeting took place.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to it. As noted I find Pauken tentatively agreed to holidays
and vacation subject to approval by Spriggs.
On Saturday, June 1, Cooley received a telephone can
from Alfred Spriggs, Respondent's president .4 This was the
first time Spriggs had become involved in the negotiations
and he asked Cooley what the problem was. Cooley read
the complete proposal and Spriggs asked what it would
take to settle the contract. Cooley told him that the men
wanted 40, 40 and 30 cent increases in the next 3 years.
Spriggs said he would go to 40, 35 and 30, at which point
Cooley said be would talk to the other drivers. He did this
but the drivers still wanted 40, 40 and 30, and Spriggs said
he would get back to him. During his testimony it was
apparent that Spriggs' recollection of these conversations
to which he was a party was very poor. He stated that he
had agreed on the Union's proposals as to holidays and
pension, but a distillation of Cooley's and Spriggs' testimo-
ny indicates that between them they had agreed on one
holiday:-Spriggs admitted however that his notes indicated
that the Union's demand was for two holidays. Apparently
Cooley was ready to give up one holiday in order to obtain
the wage increase which he and the employees were seek-
ing.
After his telephone conversation with Spriggs, Cooley
called Business Agent Boyd and told him that Spriggs
would go for 40, 35, and 30 on wages, but that the men
were holding out for 40, 40, and 30. Boyd told him that he
was going to Chicago and that Cooley could contact Busi-
ness Agent Haynes with respect to any other problems.
There was no discussion between Cooley and Boyd as to
any of the other terms of the proposal such as vacation,
pension, and holidays.
The following day, June 2, according to Cooley, Pauken
called him and asked what the drivers had agreed upon
and Cooley replied that it had to be 40, 40, and 30. Pauken
then told Cooley he would get in touch with Spriggs and
call him back. Thereafter Pauken called him back-and said
that he was able to obtain 40, 40, and 30 for them and
Cooley said that he would talk it over with the boys and
call back later.
That Sunday afternoon Cooley called Business Agent
Haynes and told him that he had talked to Pauken and
received an offer of 40, 40, and 30 and was going to have a
meeting later that day with the employees and take a vote
on it. In response to a query as to what Haynes replied,
Cooley testified. "Mr. Haynes never said I, couldn't do it,
never said I could do it. You know, he said alright, I imag-
ine." 5 At about 6 p.m. Cooley conducted a meeting among
all the employees in a park in Portsmouth. They discussed
4 Richard Cooley had been employed by Respondent for 22 years and
was its most senior employee . At the time of these negotiations he was shop
steward, having held that position for about 3 years. Cooley had never
negotiated any agreements ; he was present at the prior contract discussions
as a representative of Respondent 's employees but was not active since
those negotiations were conducted on a multi -employer basis . He received
no compensation for acting as a steward and, indeed , stated that he had
never processed any grievances , that he merely attended stewards' meetings
at the Union.
3 Haynes denies receiving this particular call on June 2 and I credit him.
I find it inconceivable that the business agent could have replied in the
manner described by Cooley. Indeed a close reading of Cooley's testimony
would indicate that Haynes said nothing.
the latest proposal Cooley had received from the Company
and agreed to accept the wage offer of 40, 40, and 30. After
the meeting Cooley and his wife went to the home of an-
other employee, Malone. According to him and Malone,
who testified that he listened on the extension, Cooley
called Haynes and told him that they had agreed to a con-
tract so there would not be a strike. They testified that
Haynes said "Well if you are happy, that's all that makes
any difference." Malone, who was listening on the exten-
sion without Haynes' knowledge, stated that during the call
Cooley told Haynes that the men had decided to take 40,
40, and 30, one paid holiday, 4 weeks' vacation after 20
years, and the pension. He avers that Haynes said "What-
ever you boys want, its all right with me." Malone also
stated that he hung up after Haynes said all right and did
not listen to the rest of the conversation.6
Haynes testified that Cooley called him and said that the
employees had a meeting and decided to take what Spriggs
had offered. Haynes said that he told Cooley he could not
accept that, that no agreement can be made without a busi-
ness agent being present. Haynes told him that the only
way an agreement could be reached would be in a meeting
with the Company and a business agent . He said that has
not happened yet and it was not legal . I credit Haynes'
version of this conversation. It is difficult to perceive how
the business agent could have acquiesced to an agreement
when it appears that all that had been discussed were the
wages and not the other proposals. Moreover Cooley ad-
mits that the Union had not authorized him to conduct
final negotiations with the Company. In addition the un-
contradicted testimony shows that prior agreements had
been subject to a ratification vote taken at the union hall in
the presence of business agents . Cooley acknowledges that
this was the procedure. In this context I find that the tele-
phone conversation between Cooley and Haynes amount-
ed to reporting a company offer on wages that had been
transmitted by Respondent through Cooley.
After his conversation with Haynes, Cooley called Pauk-
en and told him that they had a contract . It is undisputed
that effective the following day, June 3, Respondent com-
menced paying the employees at the higher rate, that is, the
40-cent increase.
On June 5 Pauken went to the union hall, met with
Haynes, and had a conversation concerning which there is
no dispute. Pauken stated that we made an agreement and
wanted to know how soon the contract would be ready.
Haynes said that we do not have a contract, and Pauken
replied that all the employees had agreed to it. Haynes
stated there were other things in the contract that have
never been discussed and tried to explain to Pauken that
the way the thing was done was not legal and that there
had never been a meeting to discuss it as a group. Pauken
insisted that there was an agreement , and that the employ-
ees were already receiving the inw'eased wages. Haynes
handed Pauken a document dated June 4 containing the
Union's proposals to settle the contract. He pointed out to
Pauken that there were three issues that had never been
discussed, funeral leave, extra steward's pay, and the dura-
6 1 do not credit Malone 's version of this telephone conversation as it
appears he was undoubtedly gilding the lily. Neither Cooley nor Haynes
testified that there was discussion of anything other than the wages.
SPRIGGS DISTRIBUTING COMPANY 1049
tion of the contract. Haynes then admitted to Pauken that
the 3-day funeral leave in this last proposal had not been
brought up previously and had been omitted from his pre-
vious proposals because his secretary had failed to type it.
In addition while the duration of 3 years had not been
discussed, apparently it was not an issue . Nevertheless it
was undoubtedly true that the Union had been requesting
steward's pay all during the negotiations , a fact Pauken
admitted. Pauken merely said that Cooley had indicated
that he was not interested in steward's pay during their
talks over the weekend. He also said and agreed that no
one from the Union had ever told him or anyone else from
the Company that they did not want the steward' s clause in
the contract.
After this meeting, Pauken wrote the Union on June 6
advising that Spriggs approved the Union's proposals with
respect to 4 weeks' vacation after 20 years, a contribution
to the pension fund of $2 per week the first year, then $3
and $3; one additional holiday (Good Friday), and a wage
increase of 40, 40, and 30. It agreed to a 3-year term of
contract and retention of all other contract language. In his
letter Pauken repeated his rejection of a 3-day funeral leave
and steward's pay.
There have been no further meetings between the Union
and Respondent although the Union has requested bar-
gaining with the Company as late as October 17. The Com-
pany has consistently refused to meet with the Union
maintaining that it has a valid collective- bargaining agree-
ment as of June 2.7 The employees of Respondent struck
on June 25 and immediately Respondent brought suit in
the local courts of Ohio seeking an injunction against the
work stoppage and damages from the Union. This suit was
thereafter removed to the U. S. district court and Respon-
dent served an amended complaint seeking damages under
Section 301 of the Act. In its suit Respondent also petitions
for a declaratory judgment to the effect that a valid agree-
ment existed as of June 2. On August 6 Respondent sent
telegrams to its employees in which it referred to the strike
as illegal, and ordered the employees to return to their jobs
no later than August 7 or be subject to discipline including
discharge. The employees then returned to work.
C. Analysis and Conclusions
The essential issue in this matter is whether a valid col-
lective-bargaining agreement was consummated on June 2.
The Respondent rises and falls with this question and it so
concedes in a letter addressed to the Regional Office an-
nexed to its answer in this proceeding. The last meeting
attended by all of the parties occurred on May 31. There is
no question that no agreement was reached as a result of
that meeting, a fact testified to by all of the witnesses.
While some witnesses testified that agreement had been
reached on subsidiary issues such as vacation or pension or
holidays, all agreed that the parties were still far apart on
the main issue of wages when this meeting was concluded.
Indeed during the ensuing period from May 31 until June
2, the date on which Respondent contends an agreement
was reached, there were no meetings at all. Any discussions
or negotiations, if that is what they can be called, occurred
over the telephone. During this period there were no direct
telephone calls between anyone on behalf of management
and any of the union business agents. In short Respondent
contends that it consummated an agreement with the
Union by dealing with the shop steward, Cooley, thereby
raising the issue of his authority. It is clear that Cooley was
not expressly authorized, as no union official specifically
authorized Cooley to conduct negotiations.
Cooley himself relies on a negative in his testimony. He
says that no one from the Union told him not to discuss
these matters with the Company. Obviously this is an after-
thought on Cooley's part, since there is no evidence in the
past history or even during the recent events that could
have led Cooley to believe that he was authorized to nego-
tiate an agreement. In the past all of the prior contracts
were negotiated by the Union's business agents. While it is
true that those agreements were negotiated on a multiem-
ployer unit basis, Cooley testified that he was present at the
negotiations for the 1971 agreement as merely an onlooker.
With regard to his previous experience as a steward for 4
years, it may also be noted that Cooley said that he had not
even processed any grievances. So there is nothing in the
history or in Cooley's experience to create an impression
that he was authorized to negotiate contracts. In this con-
nection it was not he who took the initiative with regard to
his so-called negotiation. Rather the impetus came from
Respondent, and it was Spriggs, aware that the contract
was about to expire and that he may be faced with a
strike,8 who commenced the "negotiation" by calling Coo-
ley and inquiring what it would take to reach an agree-
ment . Pauken followed through with Cooley after Spriggs
and when Pauken was questioned as to why he did not seek
to talk to the union business agents, he said that he dealt
with Cooley to avoid a strike as he did not think he could
talk to the Union.
It has been long established that it is the - duty of an
employer to bargain solely with the statutory representa-
tive and no other person or group .9 Of course, the bargain-
ing representative may expressly delegate authority to its
agents or by its conduct confer authority upon some per-
son, or bind itself by the ratification of acts of its agent.10
In this case, the Union never clearly delegated authority to
Cooley, and as there was no communication between
union officials and Respondent between May 31 and June
5, there was -no overt conduct on its part from which Re-
spondent could have ascertained that Cooley was in any
way clothed with authority to negotiate. On the other
hand, on the basis of the testimony of both Spriggs and
Pauken, they believed, for reasons best known to them-
selves, that they could avert a strike by negotiating with
Cooley. I find, in the circumstances, that Cooley had no
authority, real or apparent, to negotiate a final agreement.
If we assume for the moment that Cooley in some man-
7 As a result of instructions received from the Ohio Conference of Team- s It.may also be noted that the Union or anybody on behalf of the Union
sters in mid-June , the Union began to seek I-year contracts from the other had not conveyed any strike threat at this point.
distributor employers . There is no evidence in this record that it sought such 9 Medo Photo Supply Corporation v. N.L.R B , 321 U S 678 ( 1944).
a 1-year contract from Respondent. 10 See Independent Stave Company, Inc., 148 NLRB 431 (1964).
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ner was authorized to negotiate with the Company, there is
a question as what was really accomplished in these tele-
phone calls between him and the Company. As already
noted, Spriggs and Pauken were anxious to reach some
accord in order to avert a strike. For his part, Cooley ap-
peared mostly interested in wages so that there were a
number of phone calls back and forth with respect to the
adequacy of Respondent's wage offer which he reported to
the other unit employees. What is not clear from their vari-
ous accounts is whether any agreements were reached as to
union demands other than wages. I have found that tenta-
tive agreement (subject to Spriggs' approval) was reached
on May 31 as to holidays and vacations. Now Cooley
states that he read the Union's final proposals to Spriggs
on the telephone. But there is no clear testimony from any
of the telephone participants during the weekend that they
agreed on anything but wages. Id fact at one point Cooley
testified that all he talked about in his calls with Pauken,
and thereafter with Boyd and Haynes of the Union, were
the various wage packages. He said that Spriggs had agreed
with him on one extra holiday but admitted that the Union
had been asking for two. If a further assumption is made
concerning matters not in the record, that other items were
considered by Cooley in his talks with either Spriggs or
Pauken and that Cooley traded off a holiday or a portion
of the pension demand for an increase in wages, the matter
of steward's pay would be left unresolved. Pauken himself
admitted that the Union had been requesting steward's pay
all during the early negotiations and as part of its final
proposal. There was no agreement on this over the week-
end, nor was it even discussed. Pauken said that it was
because Cooley was not interested in the steward's pay
clause. As there is no indication that anyone on behalf of
the Union, even Cooley, had agreed to drop the steward's
pay clause, I find that no complete, final agreement had
been reached, even assuming authority on the part of Coo-
ley.
There remains for consideration on this issue the ques-
tion as to whether Haynes, in effect, ratified the so-called
agreement which Cooley purports to have negotiated. This
view may have some surface appeal when one looks at the
memorandum dated June 4 which the Union prepared to
settle the contract. In that document the Union has adopt-
ed the wage proposal worked out between Cooley and Re-
spondent. But this memorandum contained other propos-
als such as the steward's pay, on which admittedly there
had been no agreement by anybody. The other area in
which some question of ratification by the business agents
may be raised is the treatment to be accorded the phone
calls made by Cooley to the agents. However, in his testi-
mony, Cooley admitted that his calls to Boyd and Haynes
over the weekend dealt only with the various wage pack-
ages and other items were not discussed." It will be re-
11 In this connection I have discredited Malone 's version of the telephone
call between Cooley and Haynes on June 2 to which Malone listened on an
extension . Malone said that Cooley reported to Haynes with respect to other
terms of the contract to which Cooley and Pauken had agreed . However
Malone admits not hearing :he total conversation and, in any event, neither
Cooley himself or Haynes stated that items other than wages were
discussed.
1= Medo Photo Supply Corporation v. N LR.B., supra
called that Haynes testified that he told Cooley that no
agreement can be made without a business agent present
and that this procedure was not legal. Accepting the tele-
phone conversation as reported by Cooley, Haynes told
him "If that's what you guys want it's OK with me," this
remark by Haynes, in context of the conversation being
limited to wages, may be considered his acquiescence to
the 40, 40, and 30 deal discussed by Cooley and Respon-
dent. And that is probably the reason for that wage rate
being incorporated in the Union's memorandum of June
4th, which set forth the terms upon which a contract could
be settled. But the acquiescence of Haynes to the wage
agreement is a far cry from his having agreed that the en-
tire contract had been negotiated by Cooley.
Accordingly in view of the circumstances and on the
basis of all the evidence, I find that the parties never
agreed upon a collective-bargaining agreement during the
interval from May 31 through June 2. It is clear, and Re-
spondent admits, that it has refused to bargain upon re-
quest with the Union since that time, and I therefore find
that Respondent has violated Section 8(a)(1) and (5) of the
Act.
Early in May, at a time when Respondent was still part
of the multiemployer bargaining unit and the Union had
not as yet agreed to bargain separately for its employees,
Respondent had received the Union's first proposal. On
May 8 Pauken met at the warehouse with the five employ-
ees and outlined to them an offer to institute a so-called
"base and case" method of compensation. This proposal,
which would have the effect of paying the employees on a
salary plus commission rather than an hourly basis, was of
course a great deviation from their normal method of com-
pensation. Admittedly Pauken submitted this for their con-
sideration and within a day or two the employees rejected
it. This discussion or negotiation over a basic condition of
employment clearly constituted direct dealing with em-
ployees and bypassing of their designated collective bar-
gaining representative. The Supreme Court has held that
"by ignoring the Union as the employees' exclusive bar-
gaining representative, by negotiating with its employees
concerning wages at a time when wage negotiations were
pending . . ." an employer violated Section 8(a)(1) of the
Act.12 I find, therefore, by the aforesaid conduct, that Re-
spondent violated Section 8(a)(1) of the Act.
There remains for consideration the allegation that Re-
spondent violated Section 8(a)(l) of the Act by its telegram
of August 6 to the striking employees threatening them
with discharge should they not return to work. There is no
question of the threat which is admitted by Respondent.
The issue is with respect to the legality of the strike. Re-
spondent contends that a valid collective-bargaining agree-
ment was consummated on June 2 and that therefore the
strike was illegal . As I have found that no agreement was
reached, the strike commencing June 26 occurred at a time
when no collective-bargaining agreement was in effect.
Therefore, in striking for a new agreement, Respondent's
employees were engaged in concerted and protected activi-
ty. It follows therefore that by threatening its employees
with discharge or discipline in such circumstances, Re-
spondent interfered with their Section 7 rights and thereby
violated Section 8(aXl) of the Act.
SPRIGGS DISTRIBUTING COMPANY
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above , have a close, inti-
mate , and substantial relation to trade , traffic and com-
merce among the several states and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that Respondent has failed and re-
fused to bargain in good faith , upon request , with the
Union as the exclusive representative of its employees in
the unit found appropriate herein . Further, the Respondent
sought to bypass the Union as the collecive-bargaining
agent by negotiating directly with its employees over wages
and conditions of employment . In addition Respondent
threatened employees with discharge should they fail to
return to work while they were engaged in a valid strike. It
will therefore be recommended that Respondent cease and
desist from bargaining directly with employees and thereby
bypassing their collective- bargaining representative, and,
that it be ordered to bargain collectively, upon request,
with the Union as the exclusive representative of these em-
ployees concerning terms and conditions of employment
and, if an understanding is reached , embody such terms in
a signed agreement . I shall further recommend that Re-
spondent cease threatening its employees with discharge
should they engage in a concerted protected activity.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All transport drivers, driver-salesmen , warehousemen
and helpers employed by Respondent at its Portsmouth,
Ohio , warehouse , including head warehousemen ; but ex-
cluding all office clerical employees , professional employ-
ees, guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purpose of
collective-bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material herein the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5. By its refusal to bargain in good faith with the Union
after May 31, 1974, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By bargaining directly with its employees and disre-
1051
garding the Union and by threatening strikers with disci-
pline and discharge , Respondent has interfered with, re-
strained, and coerced its employees in the exercise of their
rights guaranteed in Section 7 of the Act, thereby violating
Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 13
The Respondent, Spriggs Distributing Company, Ports-
mouth , Ohio, its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good-faith with
Teamsters Local Union No. 413, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive repre-
sentative of all the employees in a unit composed of:
All transport drivers, driver-salesmen , warehouse-
men and helpers employed by Respondent at its Ports-
mouth, Ohio, warehouse, including head warehouse-
men; but excluding all office clerical employees,
professional employees , guards and supervisors as de-
fined in the Act.
(b) Disregarding the Union and bargaining directly with
its employees in the aforementioned bargaining unit in der-
ogation of their bargaining representative.
(c) Threatening its striking employees with discipline
and discharge to induce them to abandon the Union and
return to work.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Bargain collectively, upon request, with Teamsters
Local Union No. 413, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative of
the employees in the appropriate unit and embody any un-
derstanding reached in a signed agreement.
(b) Post at its warehouse in Portsmouth, Ohio, copies of
the attached notice marked "Appendix." 14 Copies of the
notice on forms provided by the Regional Director for Re-
gion 9, after being duly signed by Respondent 's representa-
1I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
14 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this order, what steps Re-
spondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides were represented by their
attorneys and presented evidence, it has been found that
we have violated the National Labor Relations Act in cer-
tain respects. To correct and remedy these violations, we
have been directed to take certain actions and to post this
notice.
WE WILL, upon request, bargain with Teamsters Lo-
cal Union No. 413, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive repre-
sentative of all our employees in the bargaining unit
described below with respect to rates of pay, wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody such un-
derstanding in a signed agreement . The bargaining
unit is:
All transport drivers, driver-salesmen, warehouse-
men and helpers employed by Respondent at its
Portsmouth, Ohio, warehouse, including head ware-
housemen; but excluding all office clerical employ-
ees, professional employees, guards and supervisors
as defined in the Act.
WE WILL NOT disregard the Union and bargain di-
rectly with our employees in derogation of their bar-
gaining representative.
WE WILL NOT threaten our striking employees with
discipline and discharge to induce them to abandon
the Union and return to work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
SPRIGGS DISTRIBUTING COMPANY