Transport Inc. of South Dakota

National Labor Relations Board - Board Decisions

Aug 9, 1976

225 N.L.R.B. 854 (N.L.R.B. 1976)

854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transport Inc. of South Dakota and General Drivers
and Helpers Union Local No. 749, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 18-CA-4543
August 9, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On April 27, 1976, Administrative Law Judge John
M. Dyer 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 Transport Inc. of South Da-
kota, Sioux Falls, South Dakota, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: General
Drivers and Helpers Union Local No. 749, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union or Local 749, filed a charge in this case on April 21,
1975,' against Transport Inc of South Dakota, herein
called TISD, the Company or Respondent, alleging that
Respondent had violated Section 8(a)(1) and (3) of the Act.
The Regional Director issued a complaint and notice of
hearing on October 20, 1975, alleging that Respondent's
employees engaged in an unfair labor practice strike on
1 Although the history involved in this case goes back a number of years,
the most recent events occurred during the fall, winter, and spring of 1974-
75 All dates used herein will refer to that period unless specifically noted
otherwise
October 21, 1974, and that the Company and the Union
entered into a formal settlement agreement in the previous
proceeding, Case 18-CA-4291, which concerned a refusal-
to-bargain allegation, on October 30, 1974, which was
thereafter approved by the Board on May 2, 1975, and by
the United States Court of Appeals for the Eighth Circuit
on August 4, 1975. The settlement stipulation stated that
the October 21, 1974, strike was caused by Respondent's
unfair labor practices.
In the present complaint it is alleged that Respondent
did not begin to comply with the settlement agreement at
least until after April 5, 1975, and did not post the required
notices to employees until August 28, 1975. It is second-
arily alleged that such posting is necessary to dissipate the
unfair labor practices and effect compliance with the settle-
ment agreement The unfair labor practice alleged in the
instant case is that Respondent violated Section 8(a)(1) and
(3) of the Act by refusing to fully reinstate nine unfair
labor practice strikers who offered unconditionally on
April 3 to return to work.
Respondent's timely answer admitted the requisite ser-
vice and jurisdictional allegations, the status of the Union
and of its general manager and secretary-treasurer, Ernie
Sifrar, and denied the supervisory status of Frank Dunla-
vy.2 Respondent's answer admitted that it had entered into
the settlement stipulation and agreement as pled by the
General Counsel but said it did not receive the notices
from the Region until August 1975, when it posted them.
Respondent denied that it had failed to comply with the
settlement agreement and took the position that when it
met in a negotiation meeting with the Union it fulfilled the
requirements of the settlement agreement and that the un-
fair labor practice strike was then (on November 5) con-
verted into an economic strike. Respondent admitted the
Union made an unconditional offer for the employees to
return on or about April 3, and claimed that it fully rein-
stated one of the employees on or about April 5 (contrary
to the complaint allegations), and met its obligations to the
other employees by putting them, as economic strikers, on
a preferential hiring list to be called as jobs opened. Re-
spondent further stated that the Union does not represent
a majority of its employees and that it and a group of
employees had each filed representation petitions which
were dismissed by the Regional Office. Moreover, Respon-
dent said it was not able to arrive at a contract because of
the Union's refusal to consider or agree to any contract
that was not for the most part in conformity with the Cen-
tral States area tank truck agreement of the Central Con-
ference of Teamsters
The parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in this matter in Sioux Falls, South
Dakota, on December 17 and 18, 1975. Respondent and
the General Counsel filed briefs which have been fully con-
sidered.
2 In Transport Inc of South Dakota, A-1 Transport, Inc, and Lloyd Ward,
Inc, 181 NLRB 478 (1970), the Board found that Frank Dunlavy was the
assistant general manager and terminal manager for Respondent and was
an agent and supervisor for Respondent Since nothing was introduced to
show any change in his position, I conclude that Frank Dunlavy is a super-
visor within the meaning of the Act
225 NLRB No. 116
TRANSPORT INC. OF SOUTH DAKOTA
The principal question in this case is whether Respon-
dent met and bargained with the Union in good faith prior
to the Union's making an unconditional offer on behalf of
the employees to return to work, so that the strike would
have been converted into an economic strike prior to such
offer. I have concluded that the evidence does not show
that Respondent bargained in good faith with the Union
prior to April 5, 1975, and consequently the strikers were
unfair labor practice strikers who were entitled to their Jobs
when they made the unconditional offer to return to work.
On the entire record in this case, including the back-
ground of this case, exhibits, and testimony, and on my
evaluation of the reliability of the witnesses, based on their
evidence, demeanor, and the inherent plausibility of the
circumstances, I make the following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND THE UNION'S STATUS
Transport Inc. of South Dakota is a South Dakota cor-
poration with its principal office and place of business in
Sioux Falls, South Dakota, where it is engaged in the inter-
state and intrastate truck transportation of petroleum and
related products. During 1974, Respondent received in ex-
cess of $50,000 for the interstate transportation services it
performed between the State of South Dakota and other
States.
Respondent admits and I find that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Respondent admits and I find that General Drivers and
Helpers Union Local No. 749, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A Background and Undisputed Facts
In Transport Inc. of South Dakota, 181 NLRB 478 (1970),
the Board found that Respondent violated Section 8(a)(5)
and (1) of the Act, by refusing to bargain with the Union,
had coercively interrogated its employees concerning their
union activities and sympathies, threatened them with loss
of benefits and with discharge if they supported the Union
or engaged in concerted activities, and violated Section
8(a)(3) by discharging nine unfair labor practice strikers.
The Board found that Respondent's series of coercive Act
violations were such as to have a lingering effect which
would preclude a fair election and ordered Respondent to
bargain with the Union The Board noted that there were
some problems as to the amount of work available when
the dischargees were put back to work because of
Respondent's hiring other employees in the interim, and
determined that this issue should be resolved in the compli-
ance stage of the case. Three of the unfair labor practice
strikers in that case are also unfair labor practice strikers in
the instant case One of the problems in the prior case, and
855
again is a problem in this case, was the offer of a job to a
driver at a terminal distant from the area in which he had
previously worked
The Board's decision was subsequently enforced by the
United States Court of Appeals for the Eighth Circuit on
December 28, 1971, and thereafter the parties commenced
negotiations and negotiated some 14 times through Janu-
ary 1973, but no agreement was reached. The Union filed a
refusal-to-bargain charge which was dismissed or with-
drawn. Following some wage increases by Respondent, the
Union made a request to renew negotiations and its re-
quest was not answered by Respondent, and the Union
filed the charge in Case 18-CA-4291 on August 19, 1974.
During the hearing of that case, on October 22, 1974, the
parties agreed to the formal settlement agreement referred
to above. The Board Order was entered on May 2, 1975,
and the court decree issued on August 4, 1975.
Among other things, the settlement stipulation estab-
lished that the Union was the collective-bargaining agent
of the employees and had been since April 3, 1968, and
that a strike then in existence which had started on Octo-
ber 21, 1974, had been caused by the unfair labor practices
of Respondent. Respondent undertook, under this stipula-
tion, to cease and desist from refusing to bargain collec-
tively in good faith and affirmatively undertook the obliga-
tion to meet upon request at reasonable times and places
and bargain in good faith with the Union, and to post the
notice.
The strike which began on October 21, 1974, was ended
on April 3, 1975, by a letter from Union Secretary-Treasur-
er Weber, to Mr. Sifrar of Respondent, stating that the
nine named strikers were unconditionally offering to return
to work immediately and would appear at the company
office on April 5 for work.
The Union during the strike, in addition to picketing
Respondent also picketed Transport Inc. at locations in
Minnesota and North Dakota, which corporation it felt
was an ally of Respondent by virtue of some common
ownership. Charges were filed and Cases 18-CC-530 and
l8-CC-536 were heard by an Administrative Law Judge,
who in his decision of March 31, 1975, found the corpora-
tions were not allied and recommended that the Union be
found guilty of an unfair labor practice The Board adopt-
ed his decision at 218 NLRB 1330 (1975).
The parties stipulated that, following the October 1974
settlement agreement in Case 18-CA-4291, they met in
Sioux Falls, South Dakota, on November 5, with Mr. Sifrar
and Attorney Fahlgren present for the Company, and
Union Representatives Weber and Larson present for the
Union The next meeting took place with only Attorney
Fahlgren and Union Representative Weber present on De-
cember 4 in St. Paul, Minnesota, and the third meeting in
this series occurred on April 11 in Sioux Falls, South Dako-
ta, with Dunlavy and Fahlgren present for the Company
and Weber and other union representatives present for the
Union. The parties stipulated that a fourth meeting took
place on April 17 in St. Paul, Minnesota, with only Fahl-
gren and Weber present. Respondent offered to stipulate
that other meetings were held on June 4, July 18, and No-
vember 17, but the General Counsel took the position that
only the first four meetings were relevant to the issues in
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case and stipulated no further. It was also stipulated
that Respondent never filed any charges of refusal to bar-
gain against the Union.
Following the Union's offer on behalf of the strikers to
return to work on April 3, the strikers appeared at the com-
pany premises on April 5, and were given the following
memorandum which was initialed by Dunlavy.
MEMORANDUM TO ALL STRIKING DRIVERS:
Transport, Inc. of South Dakota received a letter from
Local Union No. 749 on Thursday, April 3, 1975 at
4:45 P.M., in which it was indicated that the Strikers
at Sioux Falls and at Watertown desire to return to
work. We are pleased at your decision and will make
ever effort to recall each of you to work as soon as
possible. As you are aware the economy, the oil supply
situation and our loss of business in the early weeks of
the strike all have served to reduce our volume of busi-
ness.
In order to keep our customers supplied during the
strike we also had to hire several new drivers. Therefor
at the present time we have a limited need for addi-
tional drivers. All of your names will be placed on a
preferential hiring list and you will be called back to
work in the order of your seniority as needed by our
business volume. As of Monday, April 7th we will
need one additional driver at Sioux Falls. Mr. Gusso
has the most seniority of the striking group and thus
he is requested to report for duty the morning of April
7th at Sioux Falls. If Mr. Gusso chooses to remain in
Watertown, then Mr. Dykstra is requested to report
for duty in Sioux Falls Monday morning April 7th,
1975.
Gusso did not take the offer and Dykstra reported to
Sioux Falls on Monday, April 7. He was not then credited
with his previous seniority and it was not until the present
case was being investigated that a case was cited to
Respondent's counsel and thereafter Dykstra was given his
full seniority As of the time of the hearing, the other em-
ployees had not been recalled and were on a preferential
hiring list.
C. The November 5 Negotiating Meeting and Subsequent
Communications
In the 1972-73 negotiation meetings, the parties had
used, as a basis for negotiation, the then current Central
States area tank truck agreement, which ran from Novem-
ber 15, 1970, to November 14, 1973, and was referred to as
the green book from the color of its cover. In May 1974,
the Union had sought further negotiations with Respon-
dent and had sent it a rough copy of the rider to the Cen-
tral States area tank truck agreement for the period of No-
vember 15, 1973-November 14, 1976, and which is known
herein as the Dugan rider. The newer Central States area
tank agreement which runs from November 15, 1973,
through November 14, 1976, and was known from the col-
or of its cover as the black book was given to Respondent
at the meeting on November 5.
Attorney Fahlgren, who has represented Respondent
from sometime in 1967 or 1968 through all of its dealings
with the Union, was present with Ernie Sifrar at the No-
vember 5 meeting. Weber suggested that the black book
serve as the basis for their negotiations since it had super-
seded the green book. Attorney Fahlgren, who appeared in
this proceeding as both counsel and a witness, testified he
was "flabbergasted" at the introduction of the black book
and told Weber copies should have been sent to him prior
to the meeting so they could have examined it. Fahlgren
said that after this initial discussion they discussed the rid-
er which the Company had received prior to that time, with
Weber pointing out that the rider had been particularized
to Respondent for its grievance procedure and starting
rates and that it incorporated a lesser rate for new drivers
which Respondent would probably want.
Weber pointed out that the rider would keep the wage
structure and the gap between the wages of Respondent
and the other local carrier at the same point but would
equalize the increase
The parties agreed that they then discussed whether
there should be systemwide or terminal seniority. Accord-
ing to Weber, this same discussion had taken place at every
negotiation meeting held up to that time and in practically
all the meetings the question had been resolved with an
agreement that there would be systemwide seniority.
Fahlgren testified that, when the question of systemwide
versus terminal seniority was raised, Weber reminded him
that on May 24, 1972, they had agreed on systemwide se-
niority and Fahlgren said that was right, but raised again
the question of where two men were to be placed on the
seniority roster Weber replied that they had agreed to ask
the NLRB to resolve the question of whether George
Ihnen's seniority dated from his original hiring date as al-
leged by the Union or whether it dated from 1972 when
Ihnen had been laid off according to the Company. They
again agreed to have the NLRB answer the question if it
would. At this hearing, Respondent said it did not care
what seniority was awarded to Ihnen, but did not change
its position.
The Union asked for a seniority list and the Company
said it would provide one. Although this request was re-
peatedly made thereafter, with the Company saying it
would do so, it was not until the following April that the
Union received a seniority list
The parties agreed that the question of checkoff was
raised with the Union saying it wanted it and the Company
stating it would not grant it.
The Union wanted a mileage rate for driving and an
hourly rate for loading and unloading, while the Company
maintained its previous position that it wanted a lower
mileage rate than the Union sought and a flat rate for load-
ing or unloading work.
The question of pensions was discussed, with the Union
stating that it had tried to reach agreement without a pen-
sion in previous negotiations but, with the advancing em-
ployee age, they wanted to at least get started on a pension
in this contract. Fahlgren testified there was discussion
about a low-rate pension plan and its cost, but said Weber
was not sure how much the men wanted a pension plan
and the Company did not take any position on the matter
although it had previously opposed any pension plan. Sif-
TRANSPORT INC. OF SOUTH DAKOTA 857
rar testified that personally he was opposed to any type of
pension plan, did not have one himself, and felt that the
Company's contribution to social security was more than
enough.
According to Weber, either Sifrar or Fahlgren asked
whether, if the Company put together a complete package
which did not follow the black book and rider, the Union
would consider it and Weber said he would submit it to the
employees. Fahlgren testified that to such a question We-
ber replied the boys were pretty well set on coming under
the Central States agreement . Probably both statements
were made.
The parties agreed that Weber said they could make
some adjustments regarding the number of holidays and
weeks of vacation and about that time the parties broke for
lunch. After lunch the Union stated it could probably cut
back from the 5 weeks' vacation established in the black
book to about the 3 weeks the Company had previously
offered. They discussed how vacation pay would be calcu-
lated and whether vacations would be prorated, with the
Company saying it did not want vacations to accumulate
through the year but only to become vested on the anniver-
sary date of the person's employment. The parties agreed
there was some satisfactory middle ground between the 3
holidays the Company had offered and the 10 days called
for in the black book. There remained a question as to
whether holidays would be paid on a flat $25 basis as the
Company proposed or on a percentage of the employees'
salary as the Union suggested. Respondent stated it did not
know whether it would pay any amount for funeral leave.
They then discussed the various insurance policies for
health, accident, life, etc., with the Union giving the Com-
pany leaflets, describing the Union's plans. The Union
agreed that the Company could keep the insurance plan it
had in effect for the employees but wanted it fully paid by
the Company, and the Company saying it wanted the em-
ployees to pay at least part of the cost.
Although according to the Company there had been
some agreement in 1972 about management rights, Re-
spondent said that at this meeting Weber said that the
agreement then was subject to the contract as an entire
package and that it was now an open issue . Fahlgren asked
whether the Union might accept a package which would
exclude weekly guarantees and Weber said he did not be-
lieve it would do so. Fahlgren asked if the strike would be
ended and Weber said he thought the strike would be set-
tled through negotiations.
Several days after the meeting, Fahlgren and Weber had
a telephone conversation in which various positions on
contract issues were discussed. Their testimony as to what
was said is in substantial agreement. Fahlgren said that the
Company was thinking of four holidays, a 2-year contract,
and that it might bend on the question of checkoff if the
Union could go along with the Company's proposals on
grievances and arbitration. They got to the question of
mileage rates and talked about settling on the mileage rates
which the Union had proposed in May 1974, and Fahlgren
said the Company might agree to an hourly rate for load-
ing and unloading rather than hold out for the flat rate it
had sought. The Union again agreed to the Company
maintaining the insurance policies it had in effect on April
1. Fahlgren said the Company would not agree to a weekly
guarantee nor to a pension plan and said that if they got by
without putting a pension in the contract this time he knew
it would have to go into the following contract. According
to Weber, Fahlgren also said they would not "lease-out"
any of the current work but would not agree with the
Union's contract article on subcontracts but would rely on
a proposal it had made earlier. Fahlgren asked Weber
whether, if the Company made such a proposal, the men
would be agreeable to it. Weber replied that they would try
to be flexible and he was going to meet with some of the
men and would get their feelings on this proposal.
Weber testified that in his meeting with the men they
said they had been on strike for quite a while and wanted
the wages that had been proposed last May, a copy of the
current seniority list which they still had not received, some
form of guaranteed workweek, six holidays, and to start a
small pension, but would not insist on the 5-week vacation
and some of the other issues.
Somewhat oppositely Fahlgren states that, when he
talked to Weber again, Weber reported that the only thing
the men wanted was the full black book and Dugan rider
and, when Fahlgren asked about any changes they had
agreed to previously, Weber replied they would not accept
any modifications.
After this telephone conversation Fahlgren sent a letter
to Weber as follows:
As you recall Mr. E.M. Sifrar of Transport Inc. of
South Dakota and I met with you and Ron Anderson,
your assistant, at the Holiday Inn in the morning and
the afternoon of November 5, 1974. We repeatedly
asked for your latest offer and contract positions and
you indicated you did not know the current thinking
of your members. We clarified several open items and
indicated our positions on other items.
Because of the strike which commenced October 21,
1974, T.I.S.D. was most eager to arrive at a contract.
Thus, Mr. E.M. Sifrar instructed me to contact you
and on November 7, you and I had two lengthy tele-
phone conversations at which I implored you to meet
with your members and find out what is their current
thinking on a contract. Also, I indicated agreement or
modification of the position of T.I.S.D. on many open
items which T.I.S.D. had been fundmentally opposed
to in order to try and give you a package that would
be acceptable. In this conversation, you indicated that
due to the modified position of T.I.S.D. on several
open items that we were very close to a final contract.
Therefore, you agreed, at my urging, to call a meeting
of the drivers for that weekend and to submit the
package put together on November 7 and to get their
current thinking. Further, you agreed to let me know
the results of that meeting and the acceptability of the
package given to on November 7.
Since I had not heard from you as to the results of
your meeting with the T.I.S.D. drivers, I telephoned
you on November 12. In that conversation you stated
that the Black Book and Dugan Rider for South Da-
kota was the only acceptable contract you and the
drivers would accept. This was, of course a tremen-
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dous change in position from all of your proposals
given earlier including your May 10, 1974 proposal.
I am writing to inquire when you will be available
for a further negotiating meeting at which you will
clarify your current contract position.
This continuation of the present strike obviously is
not in the best interests of either my client or your
driver members. Thus, I have been instructed by Mr.
Sifrar to solicit your assistance in arriving at a mutual-
ly acceptable contract as soon as possible.
Please advise your thoughts and availability for a
negotiating meeting at your earliest convenience.
Yours very truly,
James W. Fahlgren
To this letter Weber replied as follows:
I am in receipt of your letter dated November 29,
1974.
For the record, I believe it is important that we clar-
ify a few points.
As you point out, we did have a meeting with your-
self, Mr. Sifrar, Ron Larson, and myself on November
5, 1974. I did, at this time, inform you that I was not
completely aware as to the drivers' position on the
terms of a contract at that time. You failed to point
out; however, that the reason for this uncertainty was
the fact that we had proposed an offer based on reach-
ing a settlement by peacefull means and now that the
drivers felt that their only alternative, at this point,
was to participate in strike action, could and did have
a bearing on their desires for a contract.
You say that you indicated agreement or modifica-
tions on your position on November 5, 1974 in an
effort to provide a package that would be acceptable.
My notes reflect that the only changes in your posi-
tion were the following:
I. A year ago (last negotiations) you had agreed
with System Seniority. First you disagreed with that,
and later on in the day you agreed to what you had
previously agreed to.
2. You agreed to provide us with a current seniority
list to see if any disputes were in the offering. You
have not as of this date provided us with that.
3. The age old question on George Ihnen 's Senior-
ity came up again. We discussed this and agreed to
what was agreed to in the last negotiation session.
4. We asked for ten (10) holidays-you proposed
four (4).
5. You did not agree with the following:
a. Check-off of dues
b. Cost of living
c. Weekly guarantee
d. Vacations still in question
e. Wages
f. Numerous other articles which have not been com-
pleted.
If by some method you interpreted that I felt we
were close to any final agreement, I am sure that was
wishful thinking on your part.
I expressed to you time and time again that I was
not in position to determine what exactly it now would
take to satisfy the drivers who were forced to strike in
order to begin negotiations.
Further, in this meeting you stated you were going
to put together a package which was totally different
than our proposal. I told you that I would submit it to
the drivers. As of this date, we have seen no such pro-
posal.
As for your telephone conversation with me on No-
vember 12, 1974, it was my interpretation that you
were going to study our proposal and get back with
me.
Earlier today I sent you a telegram stating that I
would be available any day the remainder of this
week I am quite sure that you are aware that I have a
very busy schedule and can not simply drop other
matters to participate in Transport Inc. negotiations.
So please believe me, it is imperative that a meeting
date be set soon or my schedule will be filled until
January 1, 1975
Prior to finishing this letter, I have placed a call to
your office in an attempt to set a date for negotiations,
and found that your secretary did not know of your
whereabouts. She stated you would be in later today,
and I shall await your call.
Sincerely yours,
Clem Weber
Attorney Fahlgren testified he was confused by Weber's
letter and called Weber on December 3. According to
Fahlgren, Weber said if they got Dugan rates by the end of
the contract or in the next contract he might be able to sell
it to the men and they could bend on the number of holi-
days and vacation pay, but, other than that, the basic
agreement would be the black book and Dugan rider. The
parties agreed to meet the following day. Weber was not
questioned about this telephone conversation.
D. The December 4 Meeting and the Following
Communications
The December 4 meeting took place at Attorney
Fahlgren's office with only Fahlgren and Weber present.
Fahlgren agreed with Weber's testimony as to how the
meeting proceeded, what they discussed, what they agreed
was still open, and basically what their offers were.
Weber testified the first topic was the same old issue of
whether they should have terminal or systemwide seniority,
and, after a good bit of discussion, they again agreed they
would have systemwide seniority and the Company would
provide them with a seniority list which they still had not
received.
The next item was the grievance procedure and the
Union wanted the grievance procedure as outlined in the
black book, but would agree that if a grievance was dead-
locked at the Joint Area Committee they would agree to
arbitration prior to any work stoppage.
Fahlgren and Weber discussed what their differences
TRANSPORT INC OF SOUTH DAKOTA 859
were and agreed to go through the black book and see
which items needed further discussion. There were a num-
ber of minor matters they agreed needed further discussion
but the principal items included checkoff, grievances, vaca-
tions, holidays, insurance, pension plans, cost of living,
funeral leave and subcontracting. Weber then proposed a
wage schedule based on a mileage rate and a mileage hour-
ly rate and hourly radius rate and said he felt they should
have a small pension to get started. Fahlgren left the room
saying he wanted to telephone Ernie Sifrar. After some 10
or 15 minutes Fahlgren returned, saying he had been un-
able to contact Sifrar but that Weber's proposal sounded a
bit strong. Weber said he wanted to settle the matter and
made a further offer which included dismissal of various
suits, would basically consist of the language in the black
book and rider with the exceptions they had noted includ-
ing cutting the mileage rates, cutting to six holidays, 3
weeks' vacation, and elimination of the pension, but insert-
ing in the contract that they would participate in the pen-
sion plan during the next contract.
Fahlgren stated that as far as the minor matters in the
contract were concerned such as veterans preference, etc.,
the parties had agreed to the language in the black book.
Indeed, Fahlgren said that, considering the list of open top-
ics, they had agreed to 75 to 80 percent of the contract
items in the Union's contract. Fahlgren testified that he
proposed a different mileage schedule on the basis that
they were then paying 10 cents a mile, would go to 10-3/4
cents on the signing of the contract with another half cent
in November 1975, and would reach 11-3/4 cents at the
end of the 2-year contract. Fahlgren said he would agree to
the black book and rider as they had discussed and went
through the contract pointing out where they had agree-
ment . Skipping the grievance procedure, Fahlgren pro-
posed a rate of $5.38 an hour, with a radius rate of $5.48 an
hour, which would be increased over the period of the con-
tract, five paid holidays; the Company would continue its
present insurance program and in the next contract would
agree to go into a low-rate pension program. Coming back
to grievances, Fahlgren said they would accept the Union's
grievance procedure except in the event of a deadlock at
the Joint Area Committee and, in such a case, would go to
binding arbitration. He continued that vacations would be
as the Company had proposed for a maximum of 3 weeks'
vacation and Respondent would agree to the checkoff
precedure and funeral leave as spelled out in the black
book and would agree on an emergency reopener of the
contract. Fahlgren wanted to retain the Company's pro-
posal on lease operations and would agree that the balance
of the contract would be in agreement with the master con-
tract. At that point, according to Weber, the only items
open and not discussed were article 20, which refers to
special seats for drivers; article 36, concerning cost-of-liv-
ing increases; article 47, regarding employees' bail; and
article 44, on two-man operations.
The parties acknowledged that they were awfully close,
particularly since there were no two-man operations, and
Weber told Fahlgren they were so close he wanted to nar-
row it further and said that they wanted one more holiday
and a 20-cent instead of 10-cent differential between the
mileage hourly rate and the radius rate and asked Fahlgren
to see if they could not find their way clear to grant these
two things so that they could agree on a contract. Fahlgren
had to leave about that time and Weber continued the dis-
cussion with his (Fahlgren's) partner, Anderson. Later that
evening they met again and Weber asked Fahlgren to see if
they could not give on the 20-cent-an-hour difference and
the one holiday, and if the Company were able to do so
they would have a contract and present it to the employees.
Weber said Fahlgren was to call him the following day
concerning these two items and that that proposal was firm
to present to the employees at a meeting he would schedule
for the weekend.
In effect, agreement with Fahlgren's proposal would
mean that the Union was conceding on the cost-of-living
feature, the seats for the employees, the bail, and the two-
man operation business, as well as the other concessions
previously made. At the conclusion of the meeting, they
discussed the question of striking employees and Weber
said that the employees should go back with full seniority
and Fahlgren agreed.
Fahlgren did not call Weber the following day, so Weber
called Fahlgren. Fahlgren told him he had not heard any-
thing from Sifrar yet. Weber then asked Fahlgren whether
they understood each other that if this contract were
worked out everyone would go back with full seniority and
Fahlgren said that was right.
Fahlgren testified differently, stating that the meeting of
December 4 concluded with Weber going to talk to the
men to see if they could bend and that he was going to talk
to Sifrar to see in what areas Sifrar might bend and then
they were going to get back together by telephone to see
what the final conclusion would be. Fahlgren also stated
that Weber said if they could get I cent more on the mile-
age rate he was sure it would be accepted. This statement
would indicate that they were talking about a rather con-
crete contract proposal and not something nebulous.
Fahlgren said that he later called Weber back and told
him that they could not come across on the extra cent and
that Sifrar was studying the package. He states he had
urged Weber to try the package out on the men and said,
"So the question was, could I get this reviewed and submit-
ted to Mr. Sifrar and get his okay at that point to present
that particular package to the men, for Mr. Weber to pre-
sent it. So I talked with Mr. Sifrar on this and that, and I
made a copy of my notes and sent them to him on the
December 4 meeting." Fahlgren states that after discussing
the matter, Sifrar instructed him to call Weber and say he
was not prepared to present that package to the men. Fahl-
gren said he called Weber on December 6 and advised him
not to present his proposal as a final authorized package,
but urged Weber to discuss with the men where they might
bend. Weber acknowledged that Fahlgren called him on
December 6 and said he was not able to change anything
as of that date, that he had sent the proposal to Sifrar to
study and needed some time.
On December 6 Fahlgren wrote Weber as follows:
This will confirm our telephone conversation of to-
day wherein I indicated that Mr. Sifrar was reviewing
his own package offer to make to you and which hope-
fully can be submitted in writing next week. Also, he is
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
studying the proposals you submitted at our meeting
this Wednesday
He has not had an opportunity to review a copy of
my notes of the meeting which I mailed to him yester-
day, and thus, as I pointed out today, I could not give
you any reading on Mr. Sifrar's reaction to the pack-
age I attempted to put forth on Wednesday.
On December 12, Weber replied to this letter as follows.
I am in receipt of your letter of December 6, 1974,
which relates to our telephone conversation on that
same date.
It seems rather odd that after seven weeks of strike
that Transport Inc. is not prepared to make a definite
and firm offer, and that offers made by their attorney
need to be further analyzed by Mr Sifrar.
I can only state that this appears to be another of
many delays put forth by the Company to avoid com-
ing to an agreement.
I will however, be expecting a written proposal from
you later this week.
On December 23, Ernie Sifrar wrote to Weber as fol-
lows:
As you discussed with our Attorney, Mr. James W.
Fahlgren recently, I am putting together a complete
package which I am hopeful will be acceptable.
Due to the Holidays, and the press of other business
matters this is taking longer than I had hoped it
would. I am writing simply to let you know that I am
working on the package.
In the meantime, if you have a package short of the
full provisions of the "Black Book and the Dugan Rid-
er", I will appreciate receiving it.
On January 2, Weber replied to Sifrar as follows.
I am in receipt of your letter of December 23, 1974,
which has reference to your presenting a complete
package to the Union in an attempt to resolve the
current labor dispute.
Please be advised that this Local is now, and always
has been agreeable to continue to meet for the purpose
of resolving our issues
In the meantime our position has not changed, and
will not change until we have received from you the
materials you and/or your attorney has repeatedly
agreed to present to us.
Sifrar testified that the proposal Fahlgren relayed to
him, he considered to be the black book and Dugan rider
dressed up a little differently and referred to that proposal
as Weber's proposal. The proposal relayed to Sifrar cer-
tainly should have been the Fahlgren proposal with
Weber's comments as to the two items where he sought a
bit more. This raises a question of whether Fahlgren's pro-
posal as a company proposal was made clear to Sifrar
After Sifrar had testified, Fahlgren returned to the wit-
ness stand and, to a leading question, testified that at the
December 4 meeting Weber presented a package proposal
in the sense that he had presented the black book, the Du-
gan rider, and some modifications, which went together
with the dismissal of lawsuits. Fahlgren said he put togeth-
er a proposal at that meeting, too, so that there were two
proposals, but that he told Weber he would convey
Weber's proposal to Sifrar for his acceptance or rejection
and that he did not accept or reject Weber's proposal be-
cause he did not have authority to do so. He stated, "Yes,
I very specifically said on several occasions in that meeting
that I would try to sell this to Mr. Sifrar." Fahlgren did not
define "this," but in the context of his testimony it would
appear he was talking about what he then labeled as
Weber's proposal. He further testified that Sifrar did not
know of the meeting of December 4 before it was held and
"I was obviously under instruction from Mr. Sifrar to try
and settle this contract and see what can be done to resolve
the outstanding issues." He said that in setting up meetings
Weber usually approached him to do so. He testified that
in a sense he felt he was being used by the Union to sell
their position to Sifrar and he was merely reporting what
had happened in these meetings to Sifrar and sometimes
told Sifrar that he thought the Union's position was right.
He stated that his role in the December 4 meeting would be
more accurately described as that of a mediator and that
he told Weber to give him something he could sell to Sifrar.
In the hearing of Cases 18-CC-530 and 18-CC-536,
which took place on January 14 through 17, Sifrar testified
that the decisionmaking authority on negotiations was one
that was limited totally to himself. In this case, Sifrar testi-
fied that the Union should have known this and certainly
that Weber found out about it at that hearing in January
when he (Sifrar) testified while Weber was present. Sifrar
stated that he had retained the sole authority on negotia-
tions from the time they started in 1968 to the present time,
but did not say that he had ever so advised the Union, but
said that the Union should have realized that from the way
negotiations were conducted and that he had never given
Fahlgren authority to make any final decisions either oral-
ly or in writing.
Some attempts were made to set up a meeting during
January, February, and March, but because of the unavail-
ability of Weber on one date and because Sifrar went into
the hospital in February or March no meetings were held
until April 11. At that time the Union still had not received
the package proposal from Sifrar or the seniority list In
confirming the meeting date of April 11, Weber stated in
an April 1 letter that he was ready and willing to meet with
anyone who had authority to negotiate for TISD. Fahlgren
replied on April 4 that he and Dunlavy would meet with
Weber and that "We are, and always have been, author-
ized to negotiate on behalf of Transport, Inc. of South Da-
kota. Of course, the contract terms ultimately are subject to
the approval of Mr. E. M. Sifrar just as any terms you
would agree to are subject to (1) your member-drivers' ap-
proval and (2) the International's approval."
Prior to this meeting Sifrar had sent a letter to Weber on
March 1, stating he would like to retroactively raise the pay
scales of the drivers. Weber replied on March 10 that the
raises proposed by Sifrar were over and above those pre-
vailing at that time and Sifrar was trying to do this without
any discussion concerning the wage scale with the Union.
Weber also noted that the raises would affect only those
who were then working and opposed such unilateral action
TRANSPORT INC. OF SOUTH DAKOTA 861
being taken by Respondent, saying that they had not been
able to meet and discuss the contract for some time.
E. The Negotiation Meeting of April 11 and Subsequent
Communications
On April 11, Fahlgren and Dunlavy met with Weber.
Fahlgren asked how they wished to proceed and Weber
said that the last thing he heard was that Sifrar was study-
ing the proposals and would have something back shortly,
that this occurred in December and he still did not have
anything from the Company. Fahlgren asked what the po-
sition was on it and did they expect the striking employees
to be returned immediately (following the April 3 offer and
Respondent's April 5 reply) and Weber replied that it was
not an economic strike, where such an issue would be ne-
gotiable but that this was an unfair labor practice strike
and the jobs were not negotiable and they wanted the peo-
ple back with seniority and no loss of pay. Weber asked
Fahlgren if he and Dunlavy had the authority to make any
firm commitments or any firm proposals. Fahlgren an-
swered only that they had been given "instructions." Fahl-
gren then said that the grievance issue was open. Weber
asked what had happened to the offer that had been made
at the close of the last meeting, that they had never heard
from the Company whether to present that offer to the
employees to accept or reject. Fahlgren asked if the
Union's position had changed in any way and Weber re-
plied that the position was the same as it had been at the
last meeting, that there were only two issues left open as far
as he was concerned, and they were 10 versus 20 cents on
the hourly rate and radius rate, and whether there would
be five or six holidays. Fahlgren told Weber that he had
not been able to sell Sifrar on the package which he had
proposed to Weber, but did say that there was a number of
articles that were agreed to Weber said that to get the
thing resolved the Union would accept the offer of five
holidays, but needed to know where they stood and what
issues are open and where did they have agreement. Fahl-
gren said that the areas where they had problems were
grievance procedure, vacations, holidays, funeral leave, se-
niority, checkoff, paid time, wages, weekly guarantees,
pension plan, and hourly rate versus flat rate. Weber re-
plied that the Union's position was the same that it was in
the last negotiation meeting, that those items had been
agreed to and that was what they wanted, and they were
not going to change their position. Fahlgren said that, al-
though mileage and wages were a problem, they might be
able to work something out and that seniority was a prob-
lem, and Gusso's refusing to go to Sioux Falls was a prob-
lem and that he was going to leave the meeting and meet
Sifrar and bring a package back after lunch.
Weber got a call about 1:30 p.m. saying that they were
working on a package and as soon as they got it done they
would give him a call. About 5 p.m. Fahlgren called again
and said they were trying to get it together that he had to
leave and asked Weber and Dykstra to come and pick up
the proposal at the airport at 7 p in, which they did. Weber
said it was too dark and he needed time to read it and
asked when they could meet again Sifrar testified he used
what was known as the C and R contract (a union contract
with a concrete hauling firm) as to basis in formulating his
proposal.
After reviewing the proposal, Fahlgren and Weber met
in Fahlgren's office on April 17, and on April 21 Weber
wrote Fahlgren as follows:
During my visit with you in your office on Thurs-
day, April 17, 1975, a number of issues were discussed
concerning the proposal you gave to us on April 11,
1975, some of which I would like to confirm by this
letter.
ARTICLE 9-Seniority
The context of your proposal uses the words "Sys-
tem Seniority," my contention on this was that we
must spell out what and how this would be applied
with reference to layoff, recalls, etc.
Also, you stated that there was some language in
your proposal with reference to guaranteed work that
should be deleted.
With further reference to seniority, you supplied me
with a seniority list that placed only one former strik-
ing employee on the seniority list, and he was listed as
a new employee. At that time, I renewed our uncondi-
tional offer to return all employees to their former po-
sitions.
ARTICLE 26-Holidays
You stated that the language in that article should
be changed to eliminate the hourly language.
ARTICLE 28-Term of Agreement
My understanding on this article was that you were
talking of a one year agreement. There is no reopener
language in this article, and you stated that proper
language could be inserted.
On the rates of pay proposed, you agreed that this
was confusing and conflicting, and that you would try
to get clarification on this.
It was my further understanding that you would
clarify all of the above items, and others not men-
tioned, to me by letter, and if I had any more ques-
tions that I should write you.
I do have a question that seems to be very impor-
tant to the few drivers I have been able to talk to.
What happened to all the articles we had previously
agreed to? Such as:
Scope of Agreement
Operations Covered
Rider Approval
Non-covered Units
Union Shop
Stewards clause
System Seniority-
completely spelled out
Maintenance of
Standards
Grievance Machinery
Protection of Rights
Picket Lines
Discharge or
Suspension
Loss or Damage
Examination and
Identification fees
Uniforms
Compensation Claims
Military Service
Meal Period & Lodging
Safety
Pay Period
Vacation Language
Holiday Language
Pension Language
Posting of Agreement
Sympathetic Action
Language
Separation of Employment
Jurisdictional Disputes
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reciprocity Funeral Leave
Multi-employer Unit Non Discrimination
Union Activities
and many other issues that we agreed to prior to and
on December 4, 1974.
I would appreciate your comments in writing on all
of these issues and your suggestions on a mutually
agreeable meeting date to further our negotiations.
F. The Parties' Positions and Conclusions
It is General Counsel's position that the unfair labor
practice strike, which was in existence in October 1974, was
not converted into an economic strike by Respondent's
meetings with the Union. General Counsel takes the posi-
tion that the undertaking of Respondent was to meet and
bargain in good faith and that Respondent did not do that
prior to April 3, when the employees who were on strike
applied unconditionally to return to theirjobs. Specifically,
the General Counsel claims that Respondent, by not in-
vesting its bargaining representative Fahlgren with suffi-
cient authority to negotiate and by reneging on agreements
that had been made, demonstrated that its meetings with
the Union were not bargaining in good faith. General
Counsel therefore seeks reinstatement of the strikers as of
the time of their application, stating that as they were un-
fair labor practice strikers the Company should have dis-
placed any recent hires or those with less seniority in order
to give the unfair labor practice strikers their jobs and all
the benefits to which they were entitled including full pay
and seniority.
Respondent takes the position that all it had to do to
convert the unfair labor practice strike to an economic
strike was to meet with the Union in a bargaining meeting
which it did on November 5 and that thereby the strike was
converted into an economic strike and the strikers became
economic strikers and are not entitled to reinstatement by
displacement. Respondent seeks to bolster this position by
stating that in the unfair labor practice hearing in Cases
18-CC-530 and 18-CC-536 counsel for the Union took the
position that the strike which also included the other
Transport Inc. company was to secure a contract for the
employees of Respondent and that therefore the strike was
economic in nature. Respondent also sought to show that
the parties had not been able to reach agreement because
the Union had taken an adamant bargaining position and
was insisting on nothing less than the black book and Du-
gan rider. It sought to justify its position by saying it would
not accede to the Union's bargaining position because it
was too costly and stating that another company which
had that contract had sought relief from the wages paid
and that it could not afford the wages that the Union was
requesting. Respondent offered other arguments that its
view of the economic picture justified its nonacquiesence
with union requests. These arguments do not touch the
main issue of whether Respondent was bargaining in good
faith.
Essentially Respondent's defense does not meet the par-
ticulars of the case against it. A strike for a contract is not
inconsistent with a strike initiated because of Respondent's
refusal to bargain in good faith so that a contract can be
reached.
In considering all the facts and circumstances here, I
come to the conclusion that the unfair labor practice strike
was not converted into an economic strike prior to the time
that the Union made the unconditional offer to return on
behalf of these strikers. The terms of the settlement agree-
ment are specific in that the duty of Respondent was to
meet and bargain in good faith. Certainly mere meeting
and not bargaining in good faith would not convert an
unfair labor practice strike into an economic strike, be-
cause that would be the antithesis of the purpose of the
settlement agreement in that case. The Board does not seek
to prolong unfair labor practices but to prevent them.
Therefore, if Respondent did not bargain in good faith it
makes no difference how many times it met with the
Union. Such action could not convert an unfair labor prac-
tice strike.
In the first meeting Respondent and the Union rehashed
where they were, to determine where they had made some
progress and where they were still apart from their prior
negotiations. Despite Fahlgren's testimony, it seems in-
credible that an attorney would not realize that a Team-
sters contract which had expired a year previously would
not have been replaced by a new agreement. Thus,
Fahlgren's testimony that he was "flabbergasted" that
there was a new contract does not ring true. Despite
Fahlgren's testimony that the placement of Ihnen on the
seniority list was of no moment to the Company and the
Company did not care where Ihnen was placed on the list,
the subject was repeatedly brought up at every meeting,
with the Company taking the position that Ihnen's place
should be governed as of 1972, and not as of his original
date of hire. The subject was brought up again at each
meeting and at each meeting the parties would come to the
same conclusion and agree again. The same thing hap-
pened with the seniority system as to whether it should be
terminal or systemwide. There seems to be no dispute that
the subject was settled at each meeting and at the following
meeting the subject would again be brought up by the
Company as to whether it should be terminal or system-
wide. This continuous rehashing of the same article, debat-
ing it and again coming to the same conclusion, happened
at the meetings whether Sifrar was present or not, as wit-
ness the meetings of November and December 1974.
The events of the November meeting show that Respon-
dent wanted to get an idea of what the employees would
take without making a definite offer. Thus, Weber was
asked to find out if the employees would take such and
such if the Company would offer it. Weber at that time did
consult with the employees and came back and gave the
Respondent an idea of what the employees wanted. Re-
spondent, although promising to give the Union a seniority
list of the employees and a package of the vague offer
made in November and a more definite offer made in De-
cember, never did come up with a complete proposal until
April 11. As may be seen from the testimony concerning
that occasion, it appears that although Sifrar said he was
working on a proposal in December that such a package
was never put together until the afternoon of April 11. Re-
spondent stated that there were mistakes in that proposal
TRANSPORT INC OF SOUTH DAKOTA 863
such as a guaranteed wage, which it did not wish to offer.
It was not until after April 11 that the Union finally was
presented with a seniority list, although it had been prom-
ised some 6 months earlier.
It seems clear from the testimony of Sifrar and Fahlgren
that Sifrar as the principal managing agent of Respondent
did not give Fahlgren and Dunlavy sufficient meaningful
authority to negotiate on the Company's behalf. Sifrar stat-
ed that he held all the authority for the Company and that
nothing could be done without his okay. The most that
Fahlgren asserted for his authority was that he had "in-
structions." Fahlgren's assertions that in the meeting of
December 4 he was acting as a mediator between Weber
and the Company in proposing certain contract terms is
the absolute negation that he was there to negotiate a con-
tract on behalf of Respondent. Certainly the Union was
entitled to feel that the attorney who had represented Re-
spondent in all of its dealings with it for some 6 years, and
who would appear at the negotiating table taking positions
prior to that time, was endowed with authority to negoti-
ate. Fahlgren by his testimony is saying at this point that
he was not negotiating but merely acting as a messenger to
take proposals to Sifrar for Sifrar's acceptance or rejection
even though he himself made a proposal on behalf of the
Company. Certainly the picture of Fahlgren making a spe-
cific concrete proposal for a contract is one of company
authority to do so. To state as he does that he was a media-
tor is to make a mockery of the whole negotiation picture
and acts to make negotiations without Sifrar present a
meaningless charade.
Certainly from what Fahlgren himself said and from
what Weber testified, Fahlgren and Dunlavy were never
given meaningful authority to negotiate. Stating that the
Union should have realized that is no defense when such
was never made clear to the Union. Again after January
when Sifrar made his statement and Weber questioned
what authority Fahlgren and Dunlavy had to negotiate,
they stated that they had been given instructions by Sifrar,
but did not say what authority they had to negotiate on
behalf of Respondent.
The picture as of April 11, as far as the Union was con-
cerned, was that they had negotiated down to two minor
points for a contract and were waiting for the Company to
make a response. The Company made the response that it
could not go along with the proposal that Fahlgren had
made. Sifrar never refers to a proposal made by Fahlgren
but only talks of Weber's proposal as being the black book
and Dugan rider. It is hard to determine from the testimo-
ny of Sifrar whether the proposal Fahlgren made on De-
cember 4 was ever actually given to Sifrar by Fahlgren.
Indeed, Fahlgren's late testimony only serves to obfuscate
the point.
It is obvious from Weber's testimony that he made con-
cessions from the original positions he took in the Decem-
ber 4 meeting and by the close of the meeting was in agree-
ment with Fahlgren's proposal but wanted Respondent to
raise the hourly rate by 10 cents and add one more holiday
to what Fahlgren had proposed. It was these two addition-
al items he wanted company agreement on and he was then
prepared to recommend the Fahlgren proposal to the em-
ployees. Thus, at the close of the meeting there was only
one proposal, not two, and it was Fahlgren's proposal with
Weber's request for two changes which should have been
made clear to Sifrar by Fahlgren.
Certainly if, as he said, Fahlgren was under instructions
from Sifrar "to try and settle this contract and see what can
be done to resolve the outstanding issues," then it must be
conceded that Fahlgren's contract proposal was a legiti-
mate offer by Respondent in resolving the matters. The
retreat from this offer by Respondent subsequently must
be held as reneging on a proposal and as bargaining not in
good faith. If it were to be held that Fahlgren did not make
this offer on behalf of Respondent (contrary to his instruc-
tion statement) then his position at the negotiation table is
a sham and a deception and makes meaningless any meet-
ings held with him since he has no meaningful bargaining
authority.
The circumstances of April 11, where the Company had
not as of that time given a written proposal to the Union
despite the assurances of Sifrar the previous December that
he had been working on it, and the number of hours taken
by Respondent on April 11, to draft a proposal which was
then given to Weber that evening and the fact that the
contract proposal was, according to Sifrar, borrowed heav-
ily from a contract that the Union had with a cement-
carrying firm from the same locality, demonstrate great
laxity on Respondent's part in meeting its obligation to
bargain with the Union and that it was dilatory in making
this response. The extent to which Sifrar's April proposal
retreated from the Fahlgren proposal and the previous
agreements is shown by Weber's letter to Fahlgren of April
21. According to Fahlgren's testimony concerning the ne-
gotiating on December 4 and where he agreed with the
number of the open subjects remaining to be negotiated, he
stated that some 75 to 80 percent of the black book had
been agreed to. This April proposal from Sifrar and Fahl-
gren would seem to negate most of that.
Respondent's conduct from November through April 11
demonstrates that it was not bargaining in a good-faith
attempt to reach a contract, but appears to have been de-
signed to avoid reaching a contract.
I therefore conclude and find that Respondent by refus-
ing to endow its negotiators with meaningful authority to
negotiate and by reneging on agreements previously
reached did not bargain with the Union in good faith, and
therefore the unfair labor practice strike which commenced
in October 1974 was not converted into an economic strike
prior to the time that the strikers made an unconditional
offer to return to Respondent.
Based on this conclusion, I further find that
Respondent's refusal to reinstate the strikers to their for-
mer positions at their former rates of pay and with their
former seniority and all other benefits to which they are
entitled violated Section 8(a)(1) and (3) of the Act. I will
therefore order that Respondent reinstate the strikers, dis-
missing if necessary any replacement employees hired in
the interim or employees of a lesser seniority status to
make positions for the strikers.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship 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.
IV. THE REMEDY
Having found that Respondent did not comply with the
formal settlement agreement in Case 18-CA-4291, which
had been approved by the Board and enforced in the Unit-
ed States Court of Appeals for the Eighth Circuit, because
Respondent did not bargain in good faith with the Union
at least through April 11, 1975, it follows that the unfair
labor practice strike initiated October 21, 1974, was still an
unfair labor practice strike when the strikers uncondition-
ally offered to return to work on April 3, 1975.
Having further found that Respondent did not reinstate
the strikers to their former positions, with all the rights and
seniority to which they were entitled and that thereby Re-
spondent discriminated against them in violation of Sec-
tion 8(a)(3) and (1) of the Act, I recommend that Respon-
dent reinstate them 3 to their former jobs, or substantially
equivalent positions if their former jobs are no longer in
existence, without prejudice to their seniority and other
rights and privileges, discharging if necessary any replace-
ments hired on and after October 21, 1974. If, after such
discharges, Respondent has insufficient work for all the
strikers, the positions are then to be allocated by seniority,
with those of a lower seniority ranking placed on a prefer-
ential hiring list for recall before any new employees are
hired.
Respondent shall make the striking employees whole for
any loss of earnings they may have suffered by reason of
Respondent's failure to reinstate them on April 5, 1975.
Backpay shall be computed in the manner established by
the Board in F. W Woolworth Company, 90 NLRB 289
(1950), with interest at 6 percent as per Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
I further recommend that Respondent make available to
the Board, upon request, payroll and other records in order
to facilitate checking the amounts of backpay due them
and any other rights they might be entitled to receive.
On the basis of Respondent's persistent history of violat-
ing the Act and on the violations found herein and because
it is a part of the purpose of the Act to prevent the commis-
sion of unfair labor practices, I will recommend that a
broad cease-and-desist order be imposed on Respondent.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act and the Union is a labor
organization within the meaning of the Act.
2. Since 1968, the Union has been the exclusive bargain-
ing representative of Respondent's employees in the unit
set forth at 181 NLRB 478 and reconfirmed by the Board
3 Whether Richard Dykstra was fully reinstated is a matter for compli-
ance in this proceeding
in its Decision and Order in Case 18-CA-4291.
3. Following the settlement agreement in Case 18-CA-
4291, Respondent, at least until April 17, 1975, has not
bargained in good faith with the Union as it agreed to do
in that settlement agreement.
4. The strike in which the employees in that unit en-
gaged in on and after October 21, 1974, until April 3, 1975,
when they made an unconditional offer to Respondent to
return to work, was an unfair labor practice strike as estab-
lished in the settlement agreement in Case 18-CA-4291,
and remained an unfair labor practice strike until after the
strikers made their April 3, 1975, offer to return.
5. By refusing to reinstate the nine strikers on April 5,
1975, following their unconditional offer of April 3, 1975,
Respondent has discriminated against them as to their hire
and tenure of employment in violation of Section 8(a)(3) of
the Act.
6. The above conduct also interferes with, restrains, and
coerces employees in the exercise of their Section 7 rights
and thereby violates Section 8(a)(1) of the Act.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this case, I hereby
issue the following recommended:
ORDER4
Transport Inc. of South Dakota, Sioux Falls, South Da-
kota, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to reinstate unfair labor practice strikers on
their unconditional offer to return to work.
(b) Discouraging membership in the Union by refusing
to reinstate unfair labor practice strikers.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of any of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Offer all strikers full and immediate reinstatement
and make them whole as provided in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security records, timecards, tripcards,
personnel records and reports, and all other records neces-
sary to analyze and compute the backpay and other bene-
fits due the strikers as provided in the section of this Deci-
sion entitled "The Remedy."
(c) Post at its Sioux Falls, South Dakota, terminal and
office and at all of its terminals and offices, copies of the
attached notice marked "Appendix." 5 Copies of said no-
4 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
5In the event that this 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 "
TRANSPORT INC OF SOUTH DAKOTA 865
rice, on forms furnished by the Regional Director for Re-
gion 18, shall , after being duly signed by an authorized
representative of Respondent , be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by Re-
spondent to msure that said notices are not altered, de-
faced , or covered by any other material.
(d) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent 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
WE WILL NOT refuse to promptly and fully reinstate
unfair labor practice strikers on their unconditional
offer to return to work.
WE WILL NOT try to discourage membership in the
Union by refusing to promptly and fully reinstate un-
fair labor practice strikers upon their unconditional
offer to return to work
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL offer full reinstatement to John Deneui, Ed
Gusso, George Ihnen, Jim Irwin , Gerald Nolte, Le-
land Olson , William Sandermeyer , John Verdoorn,
and Richard Dykstra to their former Jobs, or, if those
jobs no longer exist , to substantially equivalent posi-
tions , with all the seniority and other benefits to which
they are entitled and WE WILL make them whole for any
loss of pay or benefits they may have suffered by rea-
son of our discrimination against them.
All our employees are free to become members of the
Union.
TRANSPORT INC. OF SOUTH DAKOTA