Before KNOCH, CASTLE and SWYGERT, Circuit Judges.
KNOCH, C. J.: This case is before us on the petition of the National Labor Relations Board for enforcement of its order against respondent Porter County Farm Bureau Co-operative Association, Incorporated, pursuant to the provisions of Section 10(e) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq . No jurisdictional issue is presented. The Board's decision and order are reported at 133 NLRB (No. 105) page 1019.
The respondent is engaged in retail marketing of farm supplies, grain and related products at its main plant in Valparaiso, Indiana, and at three branches in Malden, Wheeler and McCool, Indiana. During the year 1958, the respondent had about 29 production employees exclusive of supervisors and clerical employees. About 17 were at some time or other members of General Drivers, Warehousemen and Helpers Union Local No. 142, an affiliate of the International Brotherhood of Teamsters, ing party, hereinafter called the "Union." There was no election or certification of the Union as the collective bargaining agent for respondent's employees, nor determination as to the appropriate bargaining unit. However, for some twelve to fifteen years prior to the charges which gave rise to these proceedings, the Union and respondents have had collective bargaining agreements concerning respondent's "truck-driver" employees.
David Cooper, general manager for respondent, called as an adverse witness by the General Counsel for the Board, in the hearing before the Trial Examiner, testified that almost all the above-mentioned twenty-nine employees drove trucks, that some employees who were never members of the Union worked under similar conditions, at the same rates of pay, and drove trucks as much or more than other employees who were members of the Union.
Four of respondent's drivers who were members of the Union are petroleum driver-salesmen. They own their own trucks, make their own sales and collections, and are paid strictly on a commission basis.
The above-mentioned earlier collective bargaining agreements were negotiated between the Union and a multi-employer group, engaged in the lumber, coal, building material, and feed industries. Respondent's type of operation was unique among the group. After joint negotiations, each individual employer firm would sign an individual contract with the Union on the same terms as negotiated by the group. The last agreement provided for automatic extension absent a written 60-day notice.It expired June 30, 1958. That agreement made no provision for checking of dues and contained only one job classification applicable to respondent: truck drivers, with an hourly straight time rate of $2.25, plus for the second year of the two-year contract, an increase of ten cents per hour over the first year's rate. No provisions were made for the four driver-salesmen. One of these testified that some seven or eight years before, these driver-salesmen ceased to pay dues to the Union "until the Union told us we had to."
On April 1, 1957, David Cooper became respondent's general manager in charge of the general administration of respondent's three grain elevators and feed stores, implement, petroleum and store departments. He was responsible to the twelve-man Board of Directors elected by the common stockholders. Any patron or customer whose volume of business with respondent earned sufficient savings to warrant issuance of a share of common stock became a common stockholder. Most of the employees held common stock. Many, including the four driver-salesmen, also owned preferred stock, which common stockholders could buy as an investment.
Kermit Anderson, a member of the Board for ten years, had been Chairman for six years at this time. The new general manager, David Cooper, had no experience in handling union negotiations.
Pursuant to a "re-opener" clause in the contract, Michael Sawochka, who had been the Union's Secretary-Treasurer for more than 20 years, wrote the various employer firms on April 29, 1958, that the Union desired to open negotiations as to the terms of the contracts.
On April 30, 1958, the respondent advised that respondent would conduct its labor relations on an individual basis.
Preparation for joint negotiation continued with the other employers, but the contract with respondent was allowed to expire. At that point, respondent ceased checking off dues. The Trial Examiner found dues were checked off and forwarded quarterly for a period beginning prior to 1955, although the earliest check-off authorization blanks in evidence, to which reference will be made below, were dated July 30, 1958. The Trial Examiner found that dues were checked off for a salaried supervisory office employee and an office manager, each of whom had at one time driven a truck for respondent.
On July 14, 1958, Mr. Sawochka and John Kopach, a business representative of the Union, met with Mr. Cooper and Mr. Anderson. The Trial Examiner found the testimony of Mr. Cooper and Mr. Anderson more convincing where their evidence conflicted with that of Mr. Sawochka who testified after they did as to the events of this meeting. The Trial Examiner found that topics of general interest were discussed; that Mr. Anderson had explained the inability of a co-operative (such as respondent) to pass its costs on to the farmers who dealt with the cooperative, that some of the departments were losing money, that a different contract from that made with the jointly negotiating employers was needed; that Mr. Cooper suggested a rate range through which an employee might advance; that Mr. Kopach suggested that this might be already in process of trial as John Landgrebe had been hired at only $1.35 per hour. The Trial Examiner notes that John Landgrebe was hired on a part-time basis to clean the cob shed and haul cobs a short distance on respondent's property to burn them; that occasionally when respondent was short-handed, he would drive a regular truck. Mr. Sawochka thought a rate range would not work. Mr. Sawochka and Mr. Kopach then left for a meeting with the other employers, promising to get in touch with respondent when the Union knew how the joint negotiations were developing.
Although Mr. Cooper felt that some employees were improperly covered by the Union and had discussed the desirability of an election with respondent's attorney, nothing about an election or definition of the appropriate bargaining unit was stated by the representatives of either respondent or the Union. The Board, as indicated more fully below, considers this omission as reflecting adversely on the existence of respondent's good faith doubts as to representation and bargaining unit. The Trial Examiner did not so construe it, on the basis of his findings on the issue of credibility of the witnesses. This was Mr. Cooper's initiation into handling union negotiations. For the first time, negotiations were to be held on an individual basis. There had been no prior certification of the Union or determination of the appropriate bargaining unit. The Board's reliance on the "historical" unit and failure to dispute it in the past seems unreasonable to us in the light of changes made and contemplated in the negotiation of a new contract. Past history of bargaining, not predicated on a Board certification, is not controlling on the issue of what constitutes an appropriate bargaining unit. J.C. Penney Co ., 86 NLRB 920, 921, 922 (1949); Andrews Industries Inc ., 105 NLRB 946, 949 (1953); General Electric Co. (River Works ), 107 NLRB 70, 72 (1953). The credibility of the witnesses as heard and seen by the Trial Examiner is the vital issue in determining whether a good faith doubt existed in this case.
July 21, 1958, respondent filed a petition for a representation election in which the appropriate unit was described as numbering twenty-nine, including all employees except office clericals, guards, supervisors and professional employees. The Trial Examiner notes that some truck driving is included in the work of all twenty-nine; some drive rarely, but for others, driving is a major part of their work.
July 30, 1958, the Union filed an unfair labor practice charge, charging the respondent with refusing to bargain in good faith. The Union, however, had not requested any meetings with respondent during the period from July 14, 1958, when the Union representatives promised to get in touch with respondent, to July 30, 1958, when the charge was filed. The charge was later withdrawn. Mr. Sawochka, in his testimony, admitted the charge was filed to block the election.
The Union later, on November 10, 1958, filed a second unfair labor charge, which gave rise to the instant proceedings, charging respondent with refusal to bargain in good faith, unilateral installation of an insurance program, interference with employee rights, and coercing of employees by surveillance of a Union meeting, solicitation of employees to abandon a ...