Whiting Milk Co.

National Labor Relations Board - Board Decisions

Feb 3, 1964

145 N.L.R.B. 1458 (N.L.R.B. 1964)

1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To ALL OUR EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT terminate or cause the termination or otherwise discriminate
or cause any discrimination against any employee, including all drivers of taxi-
cabs, whether owners or nonowners, for presenting or voicing any grievance
concerning working conditions or matters affecting the earning opportunities
of persons driving cabs within our System, or threaten to do so.
WE WILL NOT in any other manner interfere with, restrain, or coerce any of
you in the exercise of your right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of your own
choosing, and to engage in other concerted activities for purposes of collective
bargaining or other mutual aid or protection.
WE WILL restore John A. Kurtz to eligibility as a driver within our System,
including eligibility for radio dispatch and loading of cabs, and hiring or reten-
tion by any owner or lessee who wants to do so.
WE WILL notify John A. Shaw, Dominic A. Bruno, Dante Vergilli, Earl E.
Shifflet, and Louis J. Wine, by radio dispatch and also by letter with a copy to
John A. Kurtz that we have taken the above action and also that we withdraw
all objection to their hiring or retaining John A. Kurtz as a driver for them,
and that their doing so will not be a basis for declaring them in default under
their contract or withholding approval of assignment of any such contract to
Shaw, or of any other reprisal.
WE WILL make John A. Kurtz whole for any losses in earnings he sustained
by reason of the discrimination against him, with interest at the rate of 6 percent
per year.
RED Top CAB AND BAGGAGE CO., CHECKER CAB OPERATORS,
INC., YELLOW CAB COMPANY OF MIAMI, B & S TAXI
CORP., SEPARATELY AND AS THE YELLOW CAB SYSTEM,
Employer.
Dated------------------- By------------------ - ----------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If you have any question concerning this notice or compliance with its provisions,
you may inquire by mail, telephone, or in person at the Board's Twelfth Regional
Office at the Ross Building, 112 East Cass Street, Tampa 2, Florida, Telephone
No. 223-4623; or its local suboffice at 1200 SW. First Street, Miami 35, Florida,
Telephone No. Fr. 7-1114.
Whiting Milk Company and District #38, Lodge #264, Inter-
national Association of Machinists , AFL-CIO. Case No. 1-CA-
4044. February 1964
DECISION AND ORDER
On August 22, 1963, Trial Examiner Leo F. Lightner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in any unfair labor practices and
recommending that the complaint be dismissed in its entirety, as
set forth in the attached Intermediate Report. Thereafter, the Gen-
eral Counsel filed exceptions to the Intermediate Report and a sup-
porting brief.
145 NLRB No. 137.
WHITING MILK COMPANY 1459
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report and the entire record in this case, including
the exceptions and brief, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Boston,
Massachusetts, on May 20, 1963, on the complaint of General Counsel and the
answer of Whiting Milk Company, herein called the Respondent.' The issues liti-
gated were whether the Respondent violated Section 8(a)(S) and (1) and Section
2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61
Stat. 136, herein called the Act. The parties waived oral argument and briefs filed
by the General Counsel and Respondent have been carefully considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Massachusetts corporation, maintaining its principal office and
place of business in Boston, Massachusetts, where it is engaged in the production,
sale and distribution of milk and related dairy products. Respondent annually, a
representative period, purchased and transported in interstate commerce, from and
through various States of the United States other than the State of Massachusetts,
milk and related products of a gross value in excess of $50,000, which were deliv-
ered to Respondent in the State of Massachusetts. The complaint alleges, the
answer admits, and I find that the said Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find that District #38, Lodge
#264, International Association of Machinists , AFL-CIO, herein referred to as the
Union, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issue
The principal issue raised by the pleadings and litigated at the hearing is whether
the Respondent, commencing November 8, 1962, and at all times thereafter, refused
and continues to refuse to bargain collectively with the Union as the exclusive
representative of all the employees in the unit described in the complaint by taking
a fixed and inflexible position in its discussion of wages, and by injecting into the
bargaining situation the fact of its agreement with Local 380, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by which
agreement Respondent was required to maintain a 20-cent per hour pay differential
in favor of its automotive maintenance employees over employees such as those
included in the unit described, in derogation of the provisions of Section 8(a) (5)
and (1) of the Act. Respondent denied the commission of any unfair labor
practices.
1 The charge herein was filed January 8 1963, an amended charge was filed on Api Il 9,
1963, and a complaint was issued on April 12, 1963.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Evidence
The facts herein are substantially undisputed? On July 25, 1962, the Board
certified the Union as collective-bargaining representative for a unit engaged in
servicing, repairing, and maintaining plant machinery and equipment, exclusive of
automotive maintenance employees and others.
The parties held five or six meetings between September 14, 1962, and April 11,
1963, culminating in an agreement being signed on the latter date.
At the first meeting on September 14, 1962, after some modifications of the
Union's proposal, agreement was reached on substantially all items, except wages.
The Union requested an increase of 311/z cents per hour, with a resultant rate of
$2.85 per hour, for maintenance mechanic class A, and a similar raise for main-
tenance mechanic class B, with a resultant rate of $2.65 per hour. The Union as-
serted that the rate sought was identical to the rate then in effect at United Farmers
of New England, for a first-class mechanic, as the result of a 20-cent-per-hour
increase which had been negotiated by Local 380 of the Teamsters for the main-
tenance plant men at United Farmers. Walsh, Respondent's representative, re-
sponded that he was prepared to offer an increase of 111/2 cents per hour, and in
addition to add 2 cents for health and welfare programs. Walsh pointed out that
the Union had signed an agreement earlier in the year with United Farmers for
an 111/2-cent increase for garage mechanics. Silvers acknowledged that Walsh
asserted that his position was based on the economic position of the Respondent.
The parties again met on September 21, 1962. The sole issue discussed was
wage rates. Silvers advised Walsh that the Union was willing to accept 111/2 cents
effective August 1, 1962, with an additional 20 cents spread out in the amounts of
7 cents, 7 cents, and 6 cents at possibly 4-month intervals so that the total of 311/2
cents would be received by August 1, 1963. Silvers acknowledged knowing that the
Company had just gone through a reorganization proceeding and recognized the
impact of the 311/2-cent-per-hour increase. Walsh responded that he was only
empowered to offer an 111/2-cent-per-hour increase. . Silvers acknowledged that
Walsh based his offer in part on the economic position of the Company and in part
on anticipated negotiations with Teamsters Local 380 on behalf of garage mechanics
employed by Respondent. Silvers asserted that he inquired as to whether Walsh
had met with the representatives of Local 380. Walsh responded there had been
no demand made by Local 380 up to that time. Thereupon Silvers asserted that he
was certain that Local 380 would attempt to bring the garage mechanics employed
by Respondent into line with the plant maintenance mechanics at United Farmers
and Silvers suggested recessing negotiations until such time as Walsh had met with
Local 380, in order to permit an evaluation of the demands of the two unions,
asserting a possibility that the Company might change its position.
The parties' next meeting was on November 8, 1962. The discussion related to
wages only. Silvers testified that Walsh advised that Respondent had settled its
wage negotiations with Local 380, which was acting on behalf of the auto main-
tenance employees. The auto maintenance employees purportedly were granted
an increase of 111/2 cents per hour effective April 1, 1962, in order to bring them
to the same level as the automotive maintenance employees represented by Local
380, at White Brothers Milk Company, which had been acquired by Respondent in
June 1962. In addition, the automotive maintenance employees of Respondent
were granted a further increase of 20 cents an hour effective as of September 1962
Silvers asserted that Walsh also advised that the written agreement with Local 380
contained a provision "which in effect stated that should any other maintenance
union or any other union representing maintenance employees in the Whiting Milk
Company receive any increase, that their 20 cent differential would be maintained " 3
Silvers asserted that the Union's position at that time was that without regard
to the stipulation entered into with Local 380, the garage employees and plant
maintenance employees of Respondent had traditionally and for a number of years
received exactly the same rates of pay, that if the Respondent had agreed to grant a
2 Walter Silvers, business representative of District 38, was the sole witness
3The particular provision referred to contains the following language:
Beginning with the first Sunday in September , the hourly rate shall be increased
20t per hour over the rate established within the expired vehicle Maintenance Agree-
ment or 20 ¢ per hour over any rate subsequently established thru contract between
the Company and any other union representing maintenance employees of any de-
scription within the same territory.
WHITING MILK COMPANY 1461
311h-cent increase to the automotive maintenance employees then the plant main-
tenance employees should receive the same.4
Silvers asserted that Walsh's position was that he had entered into the agreement
with Local 380 and that if the Union was granted an increase in excess of 111/2.
cents Respondent would be required to grant an amount equal to such excess to
Local 380, in order to maintain the 20-cent differential. Silvers recited that Walsh
said that he was sorry about the whole thing. Silvers denied that Walsh stated, as
he had previously, that the Company could not afford the 311/2 cents per hour the
Union was requesting.
On November 28, 1962, the parties met with State and Federal conciliators. In
the initial joint session, the Union asserted that Respondent's plant and automotive
maintenance employees had always received exactly the same rates, and accordingly,
Respondent should grant the Union's members the same 111/2-cent, 20-cent increase
package given to Local 380. Silvers related that he asserted at the meeting that the
only reason Respondent had advanced for not bringing the plant maintenance em-
ployees to the same level was that they had a stipulation with Local 380, that the
Local 380 automotive maintenance employees would retain a 20-cent differential
over and above anything that was granted to any other maintenance union rep-
resenting employees in the Whiting Milk Company. Silvers asserted that Walsh
made no statement at that time.
The conciliators then met separately with each of the parties. In one such session
with the union committee, the conciliators reported that Walsh's position was that
Respondent could not grant the Union more than an 111h-cent-per-hour increase,
because, if it did, then the automotive maintenance employees would have to be
given a sum equal to the excess, in order to maintain its 20-cent differential. Silvers
asserted that the Union then advised the conciliators that they were willing to reduce
their wage demand to 20 cents per hour effective August 1, 1962, in order to get a
contract and to settle the wage issue. Silvers explained that for some years there had
been a differential of 111/2 cents an hour between the Local 380 mechanics and the
IAM mechanics in the milk industry, which the Union had only learned about
that year or the year before. He asserted the Union was willing to live with this
differential, if they could obtain an agreement, since "knowingly or unknowingly"
they had lived with it for some years.
Silvers asserted that the conciliators then suggested that they (the conciliators)
would meet with the Local 380 representative to ascertain if he would be willing to,
go along with the Union's request for a 20-cent per hour increase, i.e., "not impose
his agreement upon Whiting Milk Company for the difference in order to retain his
20-cent advantage." Silvers related that he (Silvers) indicated he would not
participate in such 'a conference. It was Silvers "best recollection" that Walsh
"merely acquiesced in that he was willing to wait and see what the conciliators came
up with."
There was no further meeting prior to January 8, 1963, when the charge herein
was filed.
In April 1963, a conference took place between Robert B. Friedlander,5 a vice
president of Respondent, and Silvers, at which it was agreed to resume negotiations
even though charges were pending before the Board. Walsh was no longer employed
by Respondent. Friedlander stated that he ". . . wanted to do the right thing for all
of ." his employees. On being shown the, provision in the Local 380 agreement,
Friedlander disclaimed prior knowledge of its existence; and, while acknowledging
the fact that Walsh had signed it, stated that he would "never have agreed to it,"
and expressed a determination to have it removed from the next agreement.
At a conference, inferentially held on approximately April 11, 1963, an agreement
was reached on an 111/2-cent per hour increase, effective August 1, 1962; together
with an increase of $1.75 per week in Respondent's insurance cost, $1 per week in
its retirement cost, a jury duty provision, and other minor changes.6 A written agree-
ment was executed on April 11, 1963.
Contentions of the Parties and Concluding Findings
General Counsel does not contend that Respondent failed to bargain in good faith
during the negotiations which were conducted on September 14 and 21, during which
4 However, at the subsequent meeting, as noted infra, Silvers acknowledged that there
had in fact been an 111/-cent differential in existence
5Incorrectly identified in the transcript as George Freelander.
e These fringe benefits were inferentially a substitute for Walsh's offer to add 2 cents
(per hour) for health and welfare improvements, at the meeting on September 14, 1962.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties were in agreement on substantially all matters except wages . It is undis-
puted that the Company in offering an increase of 111/z cents per hour predicated its
offer in part on its economic position. General Counsel asserts that Respondent
adopted a "fixed and inflexible" position on November 8, 1962, when it injected its
agreement with Local 380 into its negotiations with the Union, with particular
reference to the provision for a 20-cent-per-hour differential. General Counsel
characterizes this conduct as importing an "extraneous " issue into the bargaining
situation? However, General Counsel's principal argument is addressed to an event
which occurred on November 28, i.e., the suggestion of the conciliators that they
would approach Local 380 representatives to ascertain if they would be amenable
to a modification of differential provision.
Finally, General Counsel would distinguish this case from those cases where the
Board has found that once parties had resumed bargaining and arrived at an
agreement it would not effectuate the purposes of the Act to issue a bargaining order.8
General Counsel urges that the Union remains with an hourly rate 20 cents below
that provided in the Local 380 agreement and will so remain "unless it is made clear
by the Board that it is illegal for an employer to bargain with one of two unions
representing its workers concerning matters involving members of both unions,
and then present a fait accompli to the second union on an `I'm sorry we can't do
anything' basis."
The Act is designed to promote industrial peace by encouraging the making of
voluntary agreements governing relations between unions and employers. The Act
does not compel any agreement whatsoever between employees and employers. Nor
does the Act regulate the substantive terms governing wages, hours, and working
conditions which are incorporated in an agreement. (So far as the Act itself is
concerned these conditions may be as bad as the employees will tolerate or be made
as good as they can bargain for. The Act does not fix and does not authorize anyone
to fix generally applicable standards for working conditions.) The theory of the
Act is that the making of voluntary labor agreements is encouraged by protecting
employees' rights to organize for collective bargaining and by imposing on labor and
management the mutual obligation to bargain collectively. N.L.R.B. v. American
National Insurance Co., 343 U.S. 395, 401, and footnote 8.
In determining whether an unfair labor practice has been committed in the
situation that this case presents, the Board must inquire into the "totality of the
employers conduct." To make a determination that an employer has committed an
unfair labor practice on the basis of one action without inquiring into the totality
of the conduct of the negotiations and making a finding concerning the employer's
state of mind is generally termed "applying a per se rule" to determine whether an
unfair labor practice has been committed . While there are some situations where
such conduct could be, without more, a violation of Section 8(a) (5), those cases
have proceeded on the basis that the act in question was a clear manifestation of an
employer's state of mind and showed, therefore, a lack of good faith. Where, as
here, the acts complained of are not such as standing alone will justify such an
inference, the Board must take into account the state of mind of the employer by
investigating the totality of the circumstances. N.L.R.B. v. Cascade Employers
Association, Inc., 296 F. 2d 42, 47 (C.A. 9), and cases cited.
Respondent correctly asserts that General Counsel neither alleged nor sought to
prove any independent violations from which an inference of bad faith might be
drawn and transposed into the wage negotiations. Respondent urges that its conduct
in reaching agreement to every one of the Union's comprehensive demands, except
wages, at the first bargaining session reflects that Respondent was obviously seeking
to reach agreement. It is undisputed that Respondent explicitly based its wage posi-
tion upon purely economic factors of inability to pay more, during the September
meetings. It is also undisputed that in April 1963, Respondent abandoned any re-
liance upon the Local 380 agreement, if reliance thereon existed previously. Re-
spondent contends Friedlander's unequivocal disapproval of the Local 380 provision
could lead to no other conclusion. The quick resolution of the wage disagreement
and execution of a contract, before the complaint issued, are urged as a demonstra-
tion that the statutory objectives were "completely vindicated." Finally, Respondent
7In support of this contention, General Counsel urges the finding of the Board in The
Standard Oil Company (an Ohio corporation), 137 NLRB 690. In that case, the Board
found a violation of Section 8(b) (3) where the union refused to sign an agreement until
the conclusion of negotiations between the company and another local, at another plant.
I find this case inapposite
8 E g, Rene Benvenutti and Bernardo Rivera, Co-partners, d/b/a Fabrica de Ifuebles
Puerto Rico, 107 NLRB 905.
WHITING MILK COMPANY 1463
asserts that the totality of its conduct , including abandonment of reliance of the
Local 380 agreement , amply cured Respondent 's "vanishingly narrow prior violation,
if any."
Adamant insistence upon its demands by one of the parties in collective bargaining
in and of itself does not suffice to prove an unfair labor practice . The statute ex-
pressly so provides .9 A mere proposal of less desirable working condition in nego-
tiations is not in itself sufficient to reach a conclusion of bad faith , but is merely a
factor in evaluating totality of bargaining conduct. McCulloch Corporation, supra,
at 210.
The totality of Respondent's conduct on the entire record as a whole does not
establish that Respondent engaged in bad-faith bargaining . I so find.
The sole remaining question is whether the reference by the Respondent , during
negotiations , to the provisions of its agreement with Local 380 constitutes bad-faith
bargaining per se. This is next considered.
General Counsel urges that Respondent failed to support its position by relevant
and legitimate reasons.
It is undisputed that a differential , albeit only 111/2 cents, previously existed. We
are not here concerned with relative job complexity , or lack of differentiation. Such
an issue was neither alleged nor litigated . However, it does not follow that the rate
of pay of employees represented by Local 380 is not relevant to the negotiations
conducted by parties herein . It is for this reason that I have found , supra, that this
conduct of the Respondent was not equivalent to the importing of an "extraneous"
issue. I do not find insistence upon a differential , without more, per se bad-faith
bargaining.
In any event , after the event complained of, the parties undertook good-faith
bargaining and arrived at a mutually satisfactory agreement. Even were it found
that the acts complained of constituted a per se violation , Respondent's subsequent
conduct provides no substantial basis for inferring any disposition on the Respond-
ent's part to engage in like conduct in the future , even though not ordered to cease
and desist therefrom , but does reflect a willingness on its part to continue harmonious
bargaining relations with the Union. Nocona Boot Company, 116 NLRB 1860, 1875.
Having found that the Respondent has not engaged in any unfair labor practices
in derogation of Section 8(a)(5) and (1) of the Act, I shall recommend that the
complaint be dismissed.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Whiting Milk Company is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District #38, Lodge #264, International Association of Machinists, AFL-CIO,
is a labor organization within the meaning of Section 2 ( 5) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a) (5) and (1) of the Act, as alleged in the complaint.
RECOMMENDATION
Upon the basis of the above findings of fact and conclusions of law, I recommend
that the complaint be dismissed in its entirety.
0 Section 8( d) ; Bethlehem Steel Company ( Shipbuilding Division ), 133 NLRB 1347,
1369; McCulloch Corporation, 132 NLRB 201, 211.
Forest Dodge , Inc. and Local 376, International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America, Ind. Case No. 7-CA-4183. February 4, 1964
DECISION AND ORDER
On October 2, 1963, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
145 NLRB No. 141.