Alco Plating Corp.

National Labor Relations Board - Board Decisions

Oct 14, 1969

179 N.L.R.B. 102 (N.L.R.B. 1969)

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alco Plating Corporation and Metal Polishers,
Buffers , Platers & Helpers International Union,
AFL-CIO. Case 21-CA-7968
October 14, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On June 17, 1969 Trial Examiner Allen
Sinsheimer, Jr., issued his Decision in the
above-entitled proceeding, finding that Respondent
has engaged in and is engaging in certain unfair
labor practices within the meaning of the National
Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that Respondent had not
engaged in certain other unfair labor practices and
recommended that such allegations of the complaint
be dismissed. Thereafter, the Charging Party and
the Respondent each filed exceptions to the Decision
and a supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as herein modified.
We agree with the Trial Examiner's conclusion
that Respondent's unilateral granting of wage
increases to the majority of the unit employees
during the height of the bargaining negotiations
constituted a violation of Section 8(a)(5) and (1) of
the Act. We also agree with his conclusion that
Respondent's insistence on its wage position coupled
with its unilateral wage increases and its evident
unwillingness to discuss the Union's wage proposals
constituted an additional violation of Section 8(a)(1)
and (5) of the Act. We do not disagree with the
Trial Examiner's findings that Respondent did not
initially bargain in bad faith regarding many other
subjects, but we do find that with regard to its
unilateral imposition of wage increases during
negotiations and its adamant refusal to consider
wage proposals other than its own, matters which go
to the heart of the collective-bargaining process,
Respondent did not in fact bargain in good faith
and thereby violated the Act as aforesaid.
Moreover, there is little doubt but that the
Respondent's insistence upon its own wage program
to the extent of not considering the various wage
proposals of the Union, the last of which was made
and refused shortly before the commencement of the
strike, coupled with the earlier unilateral wage
increases the extent of which was only then finally
realized by the Union,' constituted a major
causative factor in precipitating the strike as
indicated by the testimony of the Union witnesses.
Along with other matters, the history of these wage
negotiations, including the unilateral wage increases,
was prominently recited to the negotiating
committee at the time it deliberated and then
determined to call the strike and constituted
together with the Employer's attitude on union
security, a major motivating factor in making that
determination. Accordingly, we find that
Respondent failed to bargain in good faith regarding
wages and in granting unilateral wage increases in
violation of Section 8(a)(5) and (1) of the Act and
that the strike which resulted therefrom was an
unfair labor practice strike.
Moreover, in agreement with the Trial Examiner,
we find that Respondent was precluded from raising
the majority issue in the presence of these serious
and unremedied unfair labor practices. By
unilaterally increasing wage rates, and at the same
time refusing to bargain in good faith regarding
wages, Respondent failed to accord the Union its
statutory role as the collective-bargaining
representative of its employees, all of which
necessarily tended to undermine the Union's
authority among the employees whose interests it
was obligated to represent in such matters. On the
basis of these considerations, we are satisfied that
Respondent was not entitled to question the Union's
majority on the strength of evidence of employee
disaffection which itself emerged from the aftermath
of Respondent's unremedied unfair labor practices.
Accordingly, we find that by withdrawing
recognition on March 19, 1968, and by refusing at
all times thereafter to recognize and bargain with
the Union as the exclusive representative of
employees in the appropriate unit, as well as by
thereafter unilaterally changing vacation benefits,
Respondent violated Section 8(a)(5) and (1) of the
Act.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
'Although it is clear that the majority of the unit employees received
unilateral wage increases in September and October 1967, because of
Respondent ' s denial that the Company had given any general wage
increases when questioned by the Union in this regard during the
negotiating conferences conducted that fall, the actual extent of these wage
increases was not fully appreciated by the Union until January and
February of the next year, just before the strike
'Celanese Corporation of America, 95 NLRB 664, C & C Plywood
Corporation . 163 NLRB 1022 See also Frick Company. 175 NLRB No
39, Terrell Machine, 173 NLRB No 230
179 NLRB No. 20
ALCO PLATING CORP. 103
hereby orders that the Respondent, Alco Plating
Corporation, Los Angeles, California, its officers,
agents , successors , and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order.
Upon the entire record, including consideration of the
briefs filed by the General Counsel, the Charging Party
and the Respondent, and upon my observation of the
witnesses, I hereby make the following: '
FINDINGS OF FACT
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , JR., Trial Examiner: This
proceeding was heard before me in Los Angeles,
California, on January 28 to 31, and February 10 through
14, 1969, upon a complaint of the General Counsel and
answer of Alco Plating Corporation, herein called
Respondent.' The complaint alleged that Respondent
violated Section 8(a)(1) and (5) of the Act, by granting
unilateral wage increases during negotiations without prior
discussion or bargaining with Metal Polishers, Buffers,
Platers & Helpers International Union, Local No. 67,
AFL-CIO, herein called the Union, by insisting to
impasse on unilateral control over merit wage increases,
and by negotiating in bad faith with the Union,
commencing September 1, 1967. It also alleges that
Respondent violated Section 8(a)(1) by promising
employees benefits for abandonment of the Union,
threatening that it would never sign a collective-bargaining
agreement, and threats that it would go out of business
before it would sign an agreement. All of the foregoing
were denied and in addition Respondent filed a motion to
dismiss on the ground that the charges do not support the
complaint.'
'The complaint issued on October 23, 1968 An original charge was filed
March I, first amended charge on April 16, and a second amended charge
on April 24, 1968
'The Respondent 's position is that the charges were filed in the name of
Metal Polishers , Buffers, Platers & Helpers International Union,
AFL-CIO, and refer in the body only to the " Union " They make no
reference to Local 67 of the International Union which Local was the
bargaining representative for the employees in the unit here involved
Respondent ' s position in essence is that the Local and International are
separate entities and that the charges filed in the name of the International
only and referring in the body thereof to the "Union" are not charges
pertinent to the matters alleged in the complaint The General Counsel and
the Charging Party contend that the omission of the Local' s name was
inadvertent or typographical and second that Respondent was well aware
of who was intended as the bargaining agent in the charge since Local No
67 was the only organization that Respondent had been dealing with as
representative of its employees, following the settlement agreement set
forth hereafter , in negotiations and in other bargaining respects The
General Counsel and Charging Party's position in essence , therefore, is
that the Respondent knew who was meant by the charge, that there could
be no doubt in this respect , and they further point out that the letter dated
April 11, 1968, of Respondent 's representative , Henry Becker, in response
to the charge and a request for information respecting it evinced no
question or doubt as to who was covered by the charge The Respondent
contends that the charge is essential and must clearly indicate who is
intended to be covered thereby, Respondent cites cases in which
respondents were named in complaints who were not named in the charges,
and also complaints involving matters not reasonably encompassed by the
charges I do not consider any of these cases to be applicable Actually
charges are not even pleadings and are intended to set in motion the
investigatory mechanism of the Board Precise language or specification is
not necessarily requisite as long as the parties can reasonably be expected
to understand what is charged or involved . Herein, not only could there be
no misunderstanding but as set forth, there was no misunderstanding It is
clear that Respondent was fully apprised from the original charge of what
to expect and that the charge was adequate in all pertinent respects That
such is the law see N L R B v Pecheur Lozenge Co. 209 F 2d 393 (C A
2), Kingston Cake, 191 F 2d 563, 567 (C A 3), Herald Publishing
Company of Bellflower , 114 NLRB 71.
1. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation with its
principal place of business in Los Angeles, California,
where it is engaged in job shop electroplating. In the
course and conduct of the business, Respondent annually
purchases goods, materials and supplies valued in excess
of $50,000 from suppliers in the State of California which
suppliers had received said goods, materials and supplies
directly from points in states other than the State of
California The Respondent admits, and I find, that
Respondent is engaged in commerce within the meaning
of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Respondent stipulated, the record establishes and I
find that Metal Polishers, Buffers, Platers & Helpers
International Union, Local No. 67, AFL-CIO, (herein
called the Union) is a labor organization within the
meaning of the Act. Respondent, however, denied that
Local 67 was a subordinate body of the Charging Party,
namely Metal Polishers, Buffers, Platers & Helpers
International Union. The record establishes, and I find,
that Metal Polishers, Buffers, Platers & Helpers
International Union, AFL-CIO, is a labor organization
within the meaning of the Act, and in addition this is a
matter of which both the Trial Examiner and the Board
could take judicial notice. The record also establishes
through the introduction of the constitution of the
International which is also the constitution of the Local,
and through the undenied testimony of International
Representative and also Local Business Representative
Quentin Paud, which I credit, with respect to the
relationship of the Local and the International that at
least as to certain matters the Local functions as a
subordinate body of the International, and I so find.,
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues involved here are (1) whether certain
statements were made by Company President Fitzgerald
which would constitute a violation of Section 8(a)(1) of
the Act; (2) whether or not the Respondent by granting
'The parties filed a stipulation to correct the record which I hereby
approve with one additional correction, namely item 32 of Appendix A
[Appendix A omitted from publication ] hereto to conform to the preceding
item The record corrections as approved are hereby noted and corrected
Also near the end of the hearing the General Counsel moved to amend
par 12(a) of the complaint to allege that Respondent in the fall of 1968
unilaterally increased the vacation benefits of some of seven employees by
changing its method for computing seniority . No objection was made and
the amendment granted followed by denial by Respondent of said
allegations , except Respondent admitted that in the fall of 1968 it did
change its vacation policy to give consideration to the seniority of the
former Cad -Nickel employees for the purpose of computing vacation pay,
without consulting the Union
'The testimony relative to the relationship of the International and the
Local was taken in connection with the pleadings and particularly
Respondent 's motion to dismiss discussed in In 2
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain wage increases during the course of the
negotiations violated Section 8(a)(1) and (5) of the Act,
(3) in connection therewith, whether it adopted in the
course of negotiations, a position with respect to wages
which either separately or coupled with its conduct in the
granting of wage increases during negotiations would
constitute a violation of Section 8(a)(1) and (5) of the Act,
(4) whether Respondent's entire course of conduct in
negotiations amounted to a failure to bargain in good
faith and, therefore, violated Section 8(a)(1) and (5) of the
Act, (5) whether Respondent by withdrawing recognition
from the Union on March 19, 1968, violated Section
8(a)(1) and (5) of the Act.
The General Counsel and the Charging Party allege the
affirmative of the foregoing Respondent asserts the
negative and in addition that if there were any bad-faith
bargaining, it was on the part of the Union rather than
the Respondent. A few preliminary comments are set
forth with respect to what I consider the evidence will
reflect as to the bargaining which occurred. First, in my
judgment, it appears from an examination of the entire
conduct of the bargaining that it left something to be
desired from both parties. Certainly, the Union was not
following the most expeditious procedure and appeared to
let itself be bogged down over issues that raised a question
as to why, particularly the matter of job classifications
and job descriptions The Respondent, on the other hand,
was evidently not overly anxious to welcome the Union in
a bargaining relationship, but this does not say that it was
acting in "bad faith" within the meaning of the Act.
Undoubtedly it was engaged in hard bargaining and
seeking terms most favorable to it. However, the law does
not require that it agree to whatever the Union asks or
concede any more than it has to.
With that preliminary comment as to the overall
bargaining, there are the questions of the unilateral wage
increases granted during the course of the bargaining and
the Employer's overall position as to wages It is in this
respect that I consider that the Respondent has
misconceived the legal effect of what took place. I will
discuss this in detail subsequently but would note at this
point that the Respondent is relying on a conception as to
past practices that may be applicable as to a past practice
that involves automatic or routine determinations.
However, such would not appear to be applicable to the
situation herein and, in my judgment, could not be
applicable and still preserve the right of the Union to
represent the employees In order to best evaluate the
matter, I will first set forth certain background and then,
without unduly spelling out every item in the negotiations,
set forth sufficiently the course thereof and the agreements
or disagreements therein so that an adequate appraisal
may be had Additionally, the matter of the wage
increases will be considered in detail and the alleged
8(a)(1) violations reviewed.
In addition to the foregoing matters, although not
specifically alleged, there was evidence adduced as to
asserted loss of majority in connection with Respondent's
complete withdrawal of recognition on March 19, 1968,
on the ground that the Union no longer represented a
majority This evidence, assuming that it was covered by
the complaint, would be pertinent and necessary to
consider in the event it were found that the Employer had
not prior to that time engaged in a refusal to bargain
However, since I am finding that Respondent did refuse to
bargain in connection with the matters of the unilateral
wage increases and its wage program, it will be
unnecessary to consider the question of whether
Respondent would have been justified, absent prior unfair
labor practices, in refusing to recognize the Union on or
about March 19 and I shall not do so
B. Background
The plant involved herein was originally owned by
Cadmium and Nickel Plating Division of Great Lakes
Industries, Inc., herein called "Cadmium" or
"Cad-Nickel." Metal Polishers, Buffers, Platers &
Helpers International Union, Local 67, AFL-CIO, was
certified as the representative of the employees at this
plant in 1959 and collective-bargaining agreements were
entered into between Cadmium and the Union, the last
one with expiration date of May 30, 1966. In November
1965, Cadmium sold all of its physical assets at the
location to Respondent and discharged its employees
effective as of the close of business November 4, 1965
The transaction did not involve either the sale of accounts
receivable or the assumption of accounts payable or other
obligations of Cadmium Respondent at the time had its
own operation at a different location. The record indicates
that Respondent's operation was similar but not identical,
that is there were some substantial differences and
Respondent was then much smaller in that its total
employment was approximately 20 percent or less than
that of Cadmium Also Respondent was a nonunion
operation. Respondent interviewed and hired about 40 or
slightly more of the employees who had been employed by
Cadmium at the time it ceased operations These
commenced work for Respondent on Monday, November
8, 1965 In addition, Respondent had a number of
employees of its own who continued to work for
Respondent. The General Counsel states that this number
was six while Respondent sets the number at nine based
on an exhibit in the file. It would appear from this
General Counsel Exhibit that the number was nine but in
any event the difference would not be material herein. The
Respondent's original plant eventually was closed some
time about March or April 1966 At the new location, the
former Cadmium location, all the foremen and the plant
manager, Pappas, were former Cadmium employees.
Upon acquisition of the former Cadmium plant,
Respondent refused to recognize the Union as the
employees' bargaining representative. The Union filed
proceedings in a California Superior Court to compel
arbitration under the contract and also filed unfair labor
practice charges in Case 21-CA-7259 Both cases were
settled by a private settlement agreement under which
Respondent agreed to recognize and bargain with the
Union. Either on that day (July 27 or 28, 1966) or the
next day a decertification petition was filed Based on this
Respondent refused to recognize or'bargain with the Union
The Union there upon filed a charge in Case 21-CA-7306,
on August 24, 1966. Respondent entered into a settlement
agreement with the Regional Director, settling the charge
on December 29, 1966. The Union was dissatisfied with
the terms of the settlement agreement because it did not
provide that the Respondent would honor the previous
contract. It accordingly appealed to the General Counsel
who sustained the Regional Director's approval by letter
dated February 8, 1967 5 It should be noted prior thereto
by letter of March 17, 1966, in view of the Union's
contentions respecting the continuation of the contract
with Cadmium, the Respondent had denied there was such
a contract but had added that if there were such that said
'The unit set forth in the settlement agreement which the parties agreed
ALCO PLATING CORP.
letter was to effect a termination thereof 6 I find based on
said settlement agreement that Local No 67 was at all
material times the exclusive bargaining representative in
the unit specified in footnote 5
C The Negotiations
Following the approval of the settlement agreement, on
February 15, 1967, Herbert Ansell, counsel for the Union,
wrote the Respondent's counsel, David Maddux,
requesting a meeting for bargaining On February 23,
Respondent replied that Henry Becker, labor relations
consultant, was its bargaining representative. No meeting,
however, was arranged until May 10, 1967 During the
interval, it appears that Ansell was busy part of the time
and Becker (or Fitzgerald) part of the time so that no
mutually acceptable date could be arranged until May 10.
Although Ansell indicated that he thought there was
another meeting either in May or in June, it seems clear
from all of the other testimony, the evidence set forth in
letters and documents and the fact that Ansell had no
notes with respect to meetings until August 31 and his
recollection appeared vague, that there was no meeting
between May 10 and August 31. Commencing with the
August 31 meeting, Ansell took some notes at the
meetings and transcribed them shortly thereafter in the
form of letters addressed to Respondent setting forth
Ansell's version of what occurred at the meetings The
purported reasons for these letters and the significance
thereof will be considered hereafter.
On May 10, the first meeting occurred attended by
Becker and Fitzgerald, president of the Company, for
Respondent and Ansell, Naftal, the then business
representative, and Frank James, a member of the
negotiating committee, for the Union Ansell first testified
that only Becker was there but as stated Ansell's
recollection was vague concerning matters in May.
Fitzgerald and Becker took notes of the meeting and I
accept their version as to who was present and what
occurred. This meeting involved requests for information
by the Union, all of which were promptly furnished by
Respondent. These included matters concerning
Respondent's insurance plan, benefits, vacations and
holidays Respondent also subsequently furnished a list of
employees with job rates and classifications Ansell
provided Becker with a copy of the old Cadmium
contract President Fitzgerald explained Respondent's
wage program which will be discussed further hereafter
Ansell also inquired, according to him, whether
Respondent would be prepared to grant union security.
Becker recalled Ansell asking how Respondent felt about
union security and Ansell said he would like to make an
appointment for the union representative and employee
James to go to the plant and inspect the operations
Following the meeting on May 10, there was no meeting
until August 31, 1967. During the period Respondent
sought to arrange a meeting. The delay appears to have
been principally due to various commitments of Ansell
although it was also indicated that Fitzgerald would not
was appropriate is
All production and maintenance employees including shipping and
receiving employees , truckdrivers , j anitors, leadmen , and leadladies,
excluding office clerical employees , professional employees , estimators,
salesmen, guards , watchmen , and supervisors within the meaning of the
Act
'The Union concedes that there is no current contract in effect involving
the Respondent - in essence that the letter of March 17 , 1966, did
constitute a termination of the Cadmium contract if it were applicable to
Respondent
105
be available the latter part of June or early part of July
when Ansell was also busy in trial which lasted
throughout July, following which Ansell was on vacation
in August. Ansell testified that Becker was cooperative
and made himself "available for meetings through that
period It was because of commitments that I couldn't
hold a meeting . "
It should, accordingly, be noted that during the period
from February, when requests for negotiations
commenced, until August 31, approximately 6 months, the
delay was essentially that of the Union's inability to
formulate a position and arrange for negotiations.
Respondent accordingly cannot be blamed for delay
during such period. As set forth, during the initial periods,
Ansell who was principal witness for the Union took no
notes and had a very vague recollection of events. His
recollection of later events was predicated primarily on his
correspondence based on notes taken at meetings which he
transcribed into the form of letters sent shortly thereafter
These were not complete but set forth a substantial part
of what he believed were the pertinent matters occurring
at the meetings. On the other hand, Becker took rather
extensive notes of all meetings and refreshed his
recollection therefrom while testifying A recitation of
occurrences at the meetings and agreements and
disagreements reached will be set forth chronologically in
connection therewith Insofar as there were any major
differences as to what occurred, these will be discussed
and considered, so also the major matters of agreement
The Union appears to have placed most of its emphasis
on the matters of union security and classifications and
job descriptions, particularly those covering some six
individuals Too much time at meetings after August 31
may have been devoted to the issues of union security and
these classifications and job descriptions at the cost of
resolving other matters Respondent's position respecting
its wage program and maintenance thereof also was
undoubtedly a substantial factor in the inability to reach
an agreement The Union at times admittedly agreed to
items that differed substantially from what it would have
desired in an effort to reach agreement. Respondent on
its part was seeking to obtain the most favorable terms
for itself However, the fact that it was bargaining hard
does not reflect an absence of good faith.
Following the meeting of August 31, there were
meetings on November 14 and 30, 1967, on January 15
and 22, and February 9 and 23, 1968, and a brief meeting
on March 19, 1968, after a strike which commenced
March 4
At the August 31 meeting were present Fitzgerald and
Becker for Respondent and Ansell, negotiating committee
members James and Williams and Union Representative
Rex Paud who had succeeded Naftal The parties explored
the Union's contract as a whole and the Respondent
generally agreed to recognition, subparagraphs 1, 2, 5, and
6 of article III concerning hours of work including
overtime pay provisions for over 40 hours per week and 8
hours per day, requiring four hours pay as call-in pay, and
10-cent second and third shift premium; Article VII,
section (1) relating to holidays providing for the six
holidays which Respondent was then granting, section (2)
after discussion and modification providing for eligibility
for holiday pay, section (4) as to celebrating a holiday
falling on a Sunday on a Monday and section (5) with
respect to an extra day's vacation if a holiday fell during a
vacation; article XI provision for rest periods
incorporating Respondent's practice Article VI
concerning promotions was acceptable provided a
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provision was inserted for the employer's judgment to
determine qualifications and ability There was apparently
tentative agreement on article VIII, sections I and 2,
concerning length of vacation after 1 year and 3 years but
the other sections thereof were deferred for a later
meeting. On the subject of union security, Respondent
stated its opposition to the union shop and Ansell inquired
whether Respondent would consider any other type of
union security and in particular asked about maintenance
of membership Becker informed him Respondent would
consider a proposal on a maintenance of membership type
of union security in the context of a package proposal.
The Respondent objected to paying overtime for Saturday
or Sunday work as such but generally accepted as set
forth above the proposals relative to hours of work
Respondent at the time objected to the seniority
provisions offered indicating it did not want to be bound
by straight seniority but did indicate that it was willing to
follow seniority with respect to recall of employees, first
recalling the last employee laid off - which would be the
normal procedure. As for matters such as discipline and
discharge, wages and grievance procedure, etc., the
Respondent said that it would make its own proposals,
but did indicate that it agreed to the principle of
arbitration as to which it would present a proposal.
Respondent provided the Union with information
concerning group insurance and agreed to send copies of
its plan which it did
There was a discussion concerning the Union's request
for Paud to go on the premises to view job operations and
Respondent although conceding the right of the
negotiating committee members to do so, questioned
Paud's right and also what he could determine if he did
so The Union contended he had this right which would
help it take a position as to the job duties relating to job
classifications. At this meeting the Union had raised the
advisability of having job classifications and language
describing each classification as a prerequisite to talking
about the wage rates to be paid to the employees
employed in the respective classification. From sources it
desired, it was agreed the Union would attempt to
formulate a statement of duties to be covered by the
classifications which had been furnished by Respondent.
The Union reserved the right to request permission to
view the job operation if necessary
By letter of September 19, Ansell proposed to Becker
that six named employees be reclassified at a higher wage
rate. By letter of October 3, Becker stated that
Respondent had reviewed these employees in their
classifications and found the Union's proposal to be
unacceptable. Ansell's letter of September 19 also
proposed a flat across-the-board increase for all employees
in the amount of 10 percent. This latter is a subject of a
dispute concerning whether Becker in his letter of October
3 or otherwise flatly rejected the 10-percent wage increase
proposal. Becker testified that he did not do so by the
letter and that the letter referred to the matter of the
classifications In a letter to the Regional Director on
April 11, 1968, Becker had indicated that this letter had
rejected the 10-percent proposal. In view of other
testimony relating to not only the subject of wages but
also other proposals, the fact that Respondent was being
advised legally and that Becker was generally careful to
leave matters open, I am of the view that he did not
intend to flatly reject the 10 percent increase by his letter
of October 3 whatever Ansell may have thought. Ansell
evidently so thought because at the November 30 meeting,
according to him, he mentioned without contradiction that
Respondent had turned down the Union's demands for a
10-percent wage increase. Insofar as the 10-percent wage
increase request is concerned, it should also be noted that
the Union did not renew its request for a wage increase
until 5 months later at the February 9 meeting when it
requested a 15-percent increase.
On November 9, Becker met with Ansell at Ansell's
office and delivered to him Respondent's first written
counterproposal. This affirmed certain agreements which
had been reached at the August 31 meeting, and set forth
Respondent's suggested language on subjects as to which
it believed there was an agreement in principle on August
31 but concerning which the Respondent was to submit a
draft. This proposal also contained a number of new
provisions which the Employer desired, and set forth
Respondent's position on subjects wherein it differed
substantially from the Union. No negotiations took place
on November 9.
The proposal submitted by Becker was sent by Ansell
to Paud in a letter dated November 9 in which he
attached a postscript stating that: "The agreement is open
shop and in many other regards impossible to live with."
Ansell testified that this did not mean an inflexible
attitude on the part of the Union on the union shop or
other issues. On November 14, a meeting was scheduled
to convene at 9 a.m Ansell arrived about 10-15 and
proceeded thereupon to have a conference with his
negotiating committee prior to the commencement of
negotiation about 11.40. He stated that he had heard that
Respondent had given some wage increases. There is
disagreement as to just what was said in this respect.
According to Ansell, he asked if anyone had received
merit wage increases and that Becker said "no" and
anyone who made that statement was a liar, and that he,
Ansell, did not pursue it because he had only the
skimpiest information about such increases According to
Becker, Ansell asked if they had given general
across-the-board increases. Becker answered "no." Ansell
then said that he had been told that such increases had
been given and Becker replied that if he had been told so
Becker thought that it was a lie. Becker said Respondent
had given merit increases in accordance with its wage
program. Actually, the different versions, although
substantial, are, in my opinion, not vital and the matter
will be considered further in connection with the
discussion of the increases actually given ' These
amounted in the preceding month of October to an
increase for 33 employees representing over 50 percent of
the total employment and, in fact, 26 or approximately 50
percent were given an increase on one day, namely,
October 30, 1967.8
'With respect to the subject of merit increases , Ansell said he raised the
question again at the January 15, 1968, meeting , by which time he had
verified that five or six increases had been given , and Becker replied that
these were simply a part of the merit wage program which Respondent had
in effect Ansell said he told Becker this practice without notifying the
Union was unfortunate and he hoped it would not be repeated
The figures here referred to were taken from certain Exhibits -
Respondent 35 and General Counsel 62 (and see also Respondent 16)
Actually a further study of Respondent 35 indicates the total number
employed in October 1967 instead of being 56 less 4 (not in the unit) or 52
should be 59 less 5 (not in unit) or 54 This conclusion stems from the
indication by the compiler of pages III and X of Respondent 35 of only
"additional" employees for a particular month rather than the number
employed therein Also on page 1I the figure for October 1967 is distorted
by an incorrect transcription of the number employed on page V which
was 2 instead of 4 Accordingly, it appears five should be added from III
and X and two subtracted from V for a net addition of three Actually the
difference in number would not affect results or conclusions
ALCO PLATING CORP. 107
The Union evidently again requested that
Representative Paud be allowed to go on Respondent's
premises to examine the work processes and operations
which request was made at the meetings until at the
November 30 meeting, Respondent consented thereto. At
the November 14 meeting, Becker indicated he would give
the Union the position of Respondent on this subject at a
later meeting. Becker at one point had indicated that he
wanted to ascertain from Legal Counsel David Maddux,
Respondent's rights in this respect. It appears that at the
August 31 or November 14 meetings or both Becker had
intimated that Paud wanted to organize when he visited
the plant and that the Company would not permit this.
The matter of classifications and job descriptions was
further discussed on November 14. Although Ansell's
letter of November 17 suggested a rejection with respect
thereto by the Respondent, his testimony fails to support
that conclusion and the subsequent discussions thereof
make it clear that the Respondent did not summarily
reject the union proposals respecting classifications and
job descriptions.,
The meeting of November 30 was scheduled to begin at
Ansell's office at 9 o'clock The Union appeared to
commence the meeting at 10 29 The Union then stated its
position that it would not discuss the wage rates
applicable to particular jobs until the parties reached
agreement on job classifications, descriptions of the duties
for those classifications and the placement of present
employees in those classifications. The Union consistently
took the position during negotiations that this was to be
resolved first,'° and Ansell explained in his testimony that
they could not discuss wages without knowing the
classifications and that the Employer would not be able to
figure out what its wage costs would be unless it knew in
which jobs the Union considered the employees were
classified While this latter is true, it is also evident that
the number of jobs involved in the dispute as to
classifications were small and the differences in cost
between any company and union positions with respect to
these jobs could readily have been computed I make this
observation because, as will be pointed out again later, it
appears that the pursuit of the classifications and the
detail in which they were pursued in the negotiations was
one of the factors in the continuing inability to reach
agreement on the whole contract, although it certainly was
not the only one. I also note that at no time, even after,
the differences concerning classifications and job
descriptions were finally resolved on February 23, 1968,
did the Union ever make a wage proposal which set forth
specific wage rates for fob classifications.
The parties on November 30 agreed that Paud could
tour the premises and view the employees performing their
jobs in order that the Union could prepare its version of
the job descriptions pursuant to its insistence that the job
classifications and descriptions be agreed upon prior to
wage discussions. There is some conflict in testimony as to
whether Paud would be permitted to converse with
employees. Becker testified that he said he did not want
Paud to talk unionism to the employees, which Becker
'Ansell may have been thinking of Becker ' s letter of October 3 rejecting
the proposed classification changes made in Ansell's letter of September
19
' °Ansell testified that it was not until the November 30 meeting that the
Union asserted that disposition of the classification and job description
matters was a prerequisite to resolution of wages, etc While Ansell so
stated , it is evident that from August 31 on the Union had made the
classification -job description matter one of prime importance and the
course of bargaining made it appear to be a sine qua non
said Ansell agreed to, but that he was willing to have
employees discuss their jobs with Paud at their work
stations. Ansell's version was that Paud was not to be
allowed to talk to the employees. Actually, Paud toured
the premises with Fitzgerald but made no effort to talk to
the employees. It should be noted that the others in the
negotiating committee had been free to talk to them at all
times. Whether or not Paud could have talked to the
employees had he made the effort when with Fitzgerald is
not clear, although it is evident that he did not try. In any
event, this, as it developed, did not prevent the ultimate
resolution of the classification job description issue. It
would appear that if Paud were restricted in talking to
employees about such matters it may have been an unfair
practice and a violation." Were it clear and were it also
decisive in resolution of the issue on job descriptions in
the negotiations, I believe that a finding of such violation
should be made However, in the posture presented it does
not appear that anything is to be gained by making a final
resolution thereof or a finding concerning it except the
observation that I consider that the Respondent should
have been willing earlier to have permitted Paud to tour
the plant and, if necessary for the purpose of resolving the
matter of classifications and job descriptions, to talk to
the employees concerning their job duties To this extent,
I consider it may be indicative of improper conduct on the
part of Respondent and a factor in delaying successful
resolution of the issues involved in the negotiations
However, as I have previously indicated, the delays in
negotiating were two-sided and the failure to expedite the
negotiations or reach agreement cannot be laid at the door
of the Respondent without also placing responsibility on
the Union.
By letter of December 8 in addition to recapitulating
his version of what occurred at the November 30 meeting
and his view of the matter involving Paud's admission to
the plant and the extent thereof, Ansell submitted a list of
definitions of job content for the various job titles or
classifications. Ansell also indicated therein that there
remained only four named persons instead of the original
six whose classifications or assignments were in dispute.
Becker responded by letter of December 18 in which he
disputed Ansell's version as to the Paud admission matter
in several respects (adding that Paud had entered the plant
with Fitzgerald), stated that the employees were all
properly assigned and that it was the Company's position
from the beginning that it did not wish to have a formal
job description and job classification program as it did not
believe it fitted the needs of the Company's operations.
Ansell by letter of December 29 to Becker continued the
dispute about whether or not Paud was given permission
to or could have talked to employees about their jobs and
when, etc. Ansell then contested Respondent's position
about not wanting formal job descriptions or
classifications as inconsistent with its position taken at the
November 30 meeting. He asserted the Union had
originally stated at the outset of the negotiations the need
for agreement on proper job content within each
classification and the category in which each employee
belonged. Ansell then stated in his letter that the
Company had agreed with this statement. He further
stated that the Union was not opposed to flexibility in job
assignments and that job classification and descriptions
would not preclude the Company from having an
employee perform as incidental duties, tasks falling
outside the classification "as and when the need arises "
"See Fajnirv N L R B, 362 F 2d 716 (C A 2)
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter of January 8, 1968, Becker replied he did not
intend to become involved in a name calling contest with
Ansell.
over the misstatements of facts and various side
issues you are trying to develop in tactical maneuvering
If you have something you wish to negotiate about,
please put it on the bargaining table. If you think there
are any misunderstandings relative to our respective
positions or matters that are not clear, put them on the
bargaining table so we can clear them up In other
words, if you have something you want to bargain
about, let us put it on the bargaining table
It is suggested that in our next bargaining session we
clear up the matters raised by your letter and go on
from there so we can have meaningful and fruitful
negotiations
On January 15, a meeting was held at Becker's office
and the parties then engaged in extensive discussions on
the subject of job classifications and temporary transfers
The Union suggested language relating thereto.
Respondent asked time to study the language The parties
also discussed the matter of apprenticeship. Respondent
was concerned about its ability to transfer people for
periods of time from one job to another and particularly
wanted to insure that job classifications and descriptions
would not unduly restrict it in the use of employees. The
Union proposed a specific section entitled "temporary
transfers," providing that employees temporarily on
transfer to another classification (higher or lower) retain
their hourly rate It also would define "temporary
transfer" as I of 2 or more days and that thereafter if it
were to a higher classification the employer would have to
pay the rate the job classification called for, on a lower
one he could pay the lower rate, in his discretion, after 2
days According to Ansell's letter of January 15, the
Union had accepted the changes desired by the
Respondent in the name of the title or classification of
seven jobs but said the Respondent's suggested language
in the cases of Tow Motor Operator and Burnishman was
not adequate
On January 22, the parties met again. Respondent
submitted its proposals with respect to the lob descriptions
for the various job classifications There was extensive
discussion of the job descriptions, the temporary
assignment of employees and the job classification
placement of certain employees (apparently four) whose
placement was disputed. Respondent proposed a 5-day
instead of 2-day temporary transfer period before a
change in rate would be required in the case of a higher
rated job. The subject of apprentice training, including
time period and pay, therefore, was also considered
Ansell first testified the meeting was rather stormy and
then later said this referred to another subsequent
meeting. Ansell claimed that the Respondent had
questioned its own language, particularly as to job
descriptions and then later admitted that this applied to
another meeting evidently the one on February 9, post
Ansell also indicated in his letter of January 23 his
conclusion that Respondent had submitted job description
language for some twelve classifications which job content
language the Union accepted As for the classification
Wire and Packer, he indicated that the Union disagreed
because of a reference to establishment of "standards" by
management and suggested a mutual agreement on a time
study It appeared subsequently that there was involved a
misunderstanding as to what was intended by the word
"standards." The Union evidently thought Respondent
was talking about incentives while Respondent (Becker)
testified it was actually talking about work performance.
The next meeting was scheduled for 9 30, February 9 at
Becker's office and lasted to 11 40 a.m., as Ansell had to
leave for a court hearing There was further discussion
about the subject of job classifications Ansell by letter of
February 14, to Becker stated the Respondent advised
that its language re job descriptions previously submitted
was on further study not fully descriptive of the functional
activities involved and that Respondent had stated it
needed additional time to study its own job description
language submitted on January 22 and would advise in the
future According to Ansell's letter, four named
employees' classifications were still in dispute.
Becker by letter of February 21 denied that the
Company at any time stated that it needed additional time
to study its own job descriptions. Becker also asserted that
at the meeting on January 9 [sic], actually February 9
there had been agreement reached on the four persons
named as still in dispute by Ansell.
On February 9, the Union proposed an across-the
board increase of 15 percent for all employees, and
demanded that Respondent either accept its offer, flatly
reject the offer, or present it with a counterproposal
before the end of the day There was some question raised
during the hearing as to what a reply that afternoon by
Becker reading "no answer" meant although Ansell in his
letter of February 14 said he assumed by such message
that the Company "had not yet made up its mind as to
what position to take" as to the wage proposal
Respondent's position, as stated at the hearing, was that it
was unable to give an answer that quickly to the proposal
by Ansell, and that what it intended by the reply that
afternoon was that there was "no answer" at that time. It
might be noted that such a request from the Union would
not ordinarily be expected to lead to an immediate
response The question then would be what was the
purpose of such demand? Apparently, it was an effort to
bring pressure on the Respondent to reach an agreement
If this case involved a situation where bargaining had been
going on steadily and readily with give and take since the
preceding February, it could well be that such demand
and the urgency thereof would be in the normal pattern
However, as set forth, this is not what took place in the
negotiations herein. Respondent ultimately took the
position by letter of February 21 that there were too many
unresolved issues to consider the Union's wage demand. It
also at a meeting on February 23 resubmitted its wage
proposal to continue its merit review program and
proposed to make such subject to the grievance and
arbitration procedure.
The next meeting was scheduled for February 23 and at
that meeting the parties reached a complete agreement
with respect to the controversial issues pertaining to job
classifications, job descriptions and the placement of the
disputed employees within those classifications and
descriptions There had initially been involved some six
employees; this had been reduced in previous meetings to
four employees and these were completely resolved on
February 23. The parties also reached agreement on the
general subject of seniority with the Union essentially
accepting Respondent's initial proposal.
Respondent attempted to have the Union take a
position on a question with respect to seniority of the
employees employed by the Respondent's predecessor and
Respondent's own employees from its former location,
apparently particularly in connection with vacations but
also in other respects The subject was not resolved and
neither party evidently took a firm position on it
ALCO PLATING CORP. 109
At the February 23 meeting, the parties also discussed
the subject of union security with the Union still
requesting either a union shop or a "maintenance of
membership" shop proposal which Respondent claimed it
understood would require new employees to join the
Union but which the Union asserted was simply a
maintenance of membership clause and that Respondent
so understood it.' 2 Respondent took the position it did not
desire to grant such a proposal The subject of wages was
discussed at the meeting, but the Union made no proposal
containing the wage rates it proposed to have paid to the
employees in any particular job. As set forth, Respondent
again submitted its proposal to continue its merit review
system and, in this connection, offered to make its wage
review program in some way subject to the
grievance-arbitration procedure (to be worked out)
According to Becker, although there were some
differences as to the precise provisions of the
grievance-arbitration procedure, he considered that both
the Union and Respondent were in accord in principle and
would have no great difficulty working this out. Assuming
agreement on arbitration and assuming the entire
grievance procedure were agreed to, there would still be a
question concerning what the subjecting of Respondent's
merit wage program to arbitration might or would entail.
During the hearing, the Trial Examiner sought some
information as to this but the matter remains unclear.
The subject of management rights was also discussed
and Respondent agreed to delete the portion crossed off
below from its management rights clause The entire
clause is set forth below."
This management rights provisions and the grievance
and arbitration provisions and their possible relation to
the desired continuation of the merit wage program by
Respondent will be considered hereafter A further
"Based on Becker ' s notes, it would appear that Ansell's version was
correct - Ansell also should know what he intended
"Except as explicitly limited by a specific provision of this Agreement,
the Employer shall continue to have the exclusive right to take any
action it deems appropriate in the management of its plant and direction
of the work force in accordance with its judgment
The Employer specifically reserves the exclusive right in accordance
with its judgment to reprimand , suspend, discharge or otherwise
discipline employees for cause , hire, promote , retire , demote, transfer,
lay-off and recall employees to work , determine the starting and quitting
time and the number of hours and shifts to be worked, maintain the
efficiency of employees, close down its operations or plant or any part
thereof or expand, reduce , alter, combine , transfer, assign or cease any
job, department, operation or service, control and regulate the use of
machines, equipment and other property of the Employer, determine the
number , location and operation of its plants and divisions and
departments thereof, the products to be handled, the schedules of
operations , the assignment of work and the size and composition of the
work force, make or change rules, policies and practices not in conflict
with the provisions of this Agreement, introduce new or improved
services, operations, maintenance and distribution methods, materials,
machinery and equipment , and otherwise generally manage the
operations and plants , direct the work force, and establish terms and
conditions of employment without notice to or bargaining with the
Union, except as expressly modified or restricted by a specific provision
of this Agreement
The Employer's not exercising any function hereby reserved to it, or
its exercising any such function in a particular way, shall not be deemed
a waiver of its rights to exercise such function or preclude the Employer
from exercising the same in some other way not in conflict with the
express provisions of this Agreement
The Respondent agreed, after discussion , to take out the language
commencing in the first paragraph with the work "All inherent and
common law management functions and prerogatives " through the word
"Agreement" at the end of the first paragraph of the above which was
article XVIII of Respondent ' s counterproposal
bargaining meeting was scheduled for March 19, 1968.
Before that meeting was held, the Union called a strike
commencing March 4, 1968 11 At the meeting on March
19, 1968, the Respondent refused to recognize or bargain
with the Union any further on the ground that it
considered the Union no longer represented a majority
The questions as previously set forth to this point are:
(1) Did the Respondent fail to bargain in good faith? And,
(2) was it justified in refusing to recognize the Union on
March 19? In considering the Respondent's bargaining as
a whole, I will consider this with respect to the bargaining
in general without particular reference to the wage
position asserted and the wage actions taken by
Respondent during negotiations. Then, after considering
the propriety of the wage actions taken and their
relationship to the Respondent's wage proposals, I will
seek to resolve first the propriety of the wage actions and
then the propriety of the wage proposals in the light of the
wage actions, and finally, whether or not these would
affect the overall conclusion as to whether or not
Respondent on the whole engaged in bad-faith bargaining.
In connection with the bargaining, the following
resulted with tentative agreements as indicated. (1)
Seniority, although the Union did not obtain a seniority
policy which it considered really provided anything of
substance, it presumably agreed thereto to obtain an
overall agreement. The matter of the dovetailing of
seniority, that is, of the former employees of Cadmium
with those of Alco was not disposed of. (2) There was full
agreement, as of February 23, 1968, on the job
classifications and job descriptions of all employees in the
unit. (3) On the matter of hours of work, a substantial
portion of the Union's original proposal was agreed to by
Respondent at the August 31 meeting It appears that this
was not an issue, although it also appears that the
subject was not completely resolved in the negotiations.
For instance, the matter of paying overtime for Saturday
or Sunday work as such may still have been open. I note
that Respondent's counterproposal does not refer to this
latter. On the subject of holidays, as previously set forth,
a substantial portion of the Union's proposal was agreed
to by Respondent at the August 31 meeting. Respondent's
counterproposal does not appear to raise any substantial
problem Rather there appeared to remain a meshing of
proposals and drafting of appropriate language. I realize,
of course, that agreement is not certain until definitely
reached as appearances of agreement may be deceptive
and differences may be serious although not evident (4)
Vacations - although the subject had not been exhausted,
substantially all of the material portions of the Union's
original proposal were agreed to by Respondent. There
may still have been some open questions since, again, the
matter had not been completely exhausted. (5) The subject
of rest periods was agreed to (6) Although the question of
the grievance procedure was not completely exhausted in
the negotiations, the Respondent agreed to the principle of
arbitration at the meeting of August 31, suggesting it
would draft its own proposed language Respondent
presented a proposal and the Union objected to portions
at the meeting of February 23 Respondent agreed to
certain deletions and changes 15 Here again it appears that
there was substantial agreement, at least on the principle
of arbitration although not necessarily on the scope of its
"There may be some conflict in testimony as to exactly when the Union
definitely decided on a strike and also concerning purported differences as
to the asserted reasons However, I do not consider it necessary to resolve
these since such will not affect my resolution of the issues herein
" i credit Becker's testimony which appears to be undemed in this
respect
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relations to the management rights clause or the
Respondent's wage program It further appears that this
subject, too, was not fully discussed or completely
considered in the negotiations (7) The matter of Paud's
visit to the plant, as previously set forth, was resolved, in
the manner stated. (8) On the question of management
rights, the Respondent deleted a sentence therein pursuant
to the Union's request and so far as appears, there was no
further discussion thereof Ansell, by letter of February
26, claimed that the Company "insisted upon its
management rights clause." His testimony, however, was
not only not definite, but not too clear in this respect.
Again the subject does not appear to have been fully
exhausted in the negotiations It will be considered further
herein in connection with the discussion of the wage
matters. (9) The question of wages, as previously stated,
involved the proposals by the Union of the 10- and
15-percent increases which the Respondent I have
concluded did not specifically reject but rather, in effect,
did so by both continuing to maintain its existing wage
program and asserting a number of times during the
negotiations its desire to continue to do so" (10) The
matter of union security was not agreed to, and the
positions of the parties were set forth at some length.
Since this was one of the matters that the General
Counsel and Respondent particularly contend was part of
the bad faith bargaining, it will be separately considered.
(11) On other subjects as to which there was bargaining,
the record does not indicate any substantial differences
but rather incompleteness
D. Appraisal of the Bargaining as a Whole
The parties ' position as to the bargaining is of course
diametrically opposed The General Counsel and Charging
Party's position is that the Respondent never intended to
negotiate and was simply fencing with the Union. The
Respondent ' s position is that if anyone didn't intend to
negotiate it was the Union , that it became bogged down
by its own proposals , including the job descriptions, that
the writing of the letters by Ansell was an effort to build a
case, and that the Union ' s excessive delays in arranging
meetings with the Respondent and the limited time spent
in some of the negotiating meetings also reflects the
Union's bad faith. Respondent contends that the Union's
absolute insistence upon the contract containing detailed
job descriptions , and placing employees therein, even
before wage rates were discussed , is indicative of the
Union ' s position . Respondent argues that the Union did
not have such descriptions in the Cad -Nickel Contract,
that they are not the normal part of a
collective-bargaining agreement, although admittedly that
they may be contained therein, and that the overemphasis
thereon was unusual and also a cause of the course the
bargaining took Respondent claims that the letters by
Ansell, which he admitted were not part of his usual
practice and also were not part of normal bargaining,
were an effort to create a case. Ansell ' s position on these
was that he simply wanted to put down his version of
what occurred to see if they were in accord with
Respondent - essentially to avoid misunderstandings and
see whether in agreement or not and what remained to
resolve.
"See further discussion of the wage matters post
The contentions, in essence, of the General Counsel and
the Charging Party are that the Respondent was obviously
seeking to continue its operations as it had always done,
that its rejection of the union security proposals was a
sham in that Respondent never intended to negotiate with
respect thereto, that its position on wages was also
violative of the Act, both by rejecting the Union's
proposals out of hand, and by the continuance of its
existing wage program, that the Respondent's claimed
insistence on the management rights clause was also
indicative thereof, and that the Respondent, in its position
on seniority, was really not conceding anything They
assert further that the agreements Respondent was willing
to make were either agreements of what were already in
effect or of no substance
First, a consideration of the Respondent's contentions.
I do not believe that these reflect bad faith on the Union's
part. They may or may not reflect questionable judgment
as to the best manner to proceed in the negotiations. The
fact that so many subjects which would normally have
been explored completely, as set forth above, were not
completely exhausted, is indicative to the undersigned that
the Union did not always pursue negotiations in what may
well have been the best possible approach. There is no
question that the delay, in substantial part, in the course
of these meetings, is attributable to the Union. There is
also a question as to why the Union should have started
writing letters at the particular point it did. I have noted
Ansell's explanation which is not unreasonable. A
question remains, though, as to why this appeared
necessary at the particular time and in these negotiations.
It may be that Ansell sensed a need for this However, in
my judgment, the fact of the letter writing is not a
decisive element in this case.
As for the contentions of the General Counsel and the
Charging Party, there is little question that the
Respondent was not about to give up any more than it
had to or considered necessary under all the
circumstances However, it did agree to items it then had
in effect. It did agree to the principle of arbitration under
a grievance procedure, which is a vital part of any
collective-bargaining agreement it did agree, after lengthy
discussion, to what the Union made a major part of the
negotiations - the job descriptions and classifications
The fact that these may or may not be as important as
the Union made them does not detract from the fact that
the Respondent did discuss and reach agreement thereon,
nor that Respondent had valid reasons for seeking to
carefully work out classifications and descriptions under
which it could operate efficiently. Respondent agreed to a
temporary transfer provision, but the parties were apart as
to whether there should be a 2-or 5-day time period
involved. As for the discussion on union security, there is
a great deal made of this by the General Counsel and the
Charging Party. In essence, the argument is that the
Respondent started out with no intention of granting it,
and then proceeded to have the Union make proposals
which it did not intend to grant. This is one of those
situations where it can of course be argued either way -
if the Respondent says "no" initially, then that is alleged
to be bad faith If it considers and discusses, but finally
does not agree, then the argument is that it never intended
to. Actually, all the law requires is that it does consider,
listen and discuss the various proposals set forth. In this
respect, in connection with the union security clause, the
Union started out with a desire for a union shop
provision, which it was willing to modify to exclude
certain former employees. As previously set forth, the
ALCO PLATING CORP. I11
Union ultimately offered to accept a maintenance of
membership clause but Respondent apparently was
confused in this respect - Becker apparently having notes
indicating maintenance of membership but thinking in
terms of maintenance for old employees and union shop
for new The Respondent asserted various grounds for
objecting thereto - moral grounds, current employees
not desiring it and threatening to quit, a questioning of
the Union's representation among a large segment of the
employees, and, at one point, assertions respecting the
latest Supreme Court cases in connection with fining
members, etc The Union, at one time, had requested a
checkoff in conjunction with a proposed union security
provision, which had been rejected. There is no indication
that the checkoff by itself was ever seriously pursued by
the Union. My conclusion as to the union security issue is
that it was discussed at length, that the Respondent did
not desire to grant it, and that it was not convinced by the
Union that it should grant it either on the merits or as a
part of an overall package I realize that maintenance of
membership either as Ansell presented it or Becker
interpreted it might answer the objections as to current
employees, who objected, being required to join. However,
I also note first that this does not appear to have been
discussed although it may arguably be fairly obvious,
second, Respondent gave other grounds, third, the record
does not reflect request or effort by the Union to discuss
these. It should be further noted that in many cases union
security is ultimately or finally granted as part of an
overall bargaining package and it should be continually
kept in mind that a contract is a complete document or
pact."
The Charging Party vigorously listed a series of items
which it contended represented positions by the Employer
calculated to frustrate the arrival at an agreement It
referred first to the matter of admitting Paud to the
premises in order to gather information relating to job
classifications and descriptions. This has been previously
discussed. Were it part of a substantial series of improper
incidents, actions and conduct by Respondent, I would
consider it to be more pertinent and supportive of the
Charging Party's position However, in my judgment most
of the series of acts and conduct relied on by the Charging
Party as indicative of the Employer's efforts to frustrate
bargaining are not supportable for reasons set forth
herein Second, the Charging Party contends that the
Employer's intransigence in reaching agreement on the
classifications delayed resolution of this until February 23,
1968 Actually the record reflects a continuing dispute and
discussion concerning these from August 31, 1967, with
proposals first from the Union and subsequently from the
Respondent The only item in this respect that I would
consider supports the Charging Party's position is that
involving the delay in admitting Paud to the premises. In
other respects the Employer was entitled to time to
consider the proposals of the Union and to make
counterproposals and to discuss the same The fact as set
forth is that complete agreement was reached thereon on
February 23 I recognize that at one point Ansell claimed
that the Respondent was withdrawing from its own
''Among cases to the effect that refusal to agree to a union security
clause under the circumstances therein was not a violation of Sec 8(a)(1)
and (5), see Artiste Permanent Wave Company. 172 NLRB No 223 I
note that there the Respondent had both a substantial basis for doubt
respecting the Union's majority and assertions from employees that they
did not desire to join the Union Here the Respondent claimed to have
such assertions of nondesire to join and it was aware that prior to the
settlement agreement a decertification petition had been filed
proposals and that Becker denied that this was the case
My impression of the discussions from the testimony and
the record is that the issues were such as would require
careful consideration and could not be readily resolved in
such fashion as Respondent felt would protect its interests.
However, Respondent did finally reach agreement on
definitions that it considered were satisfactory. I would
note that in connection with an initial agreement where
there had not previously been in effect rigid job
descriptions, it would be important to have these carefully
worked out so that grievances would not arise and from
the Respondent's standpoint so that its operations would
not be unduly restricted.
Third, I have already discussed the matter of the union
shop which the Charging Party contends also illustrated
Respondent's frustration of the bargaining Fourth, the
Union contends that the Employer was unwilling to agree
to a limitation to its authority to lay off and recall,
insisting on applying seniority only to the extent it wished
This was essentially the Employer's position but the
Union early indicated its willingness to accept such
position and under such circumstances it is difficult to see
how this would frustrate the bargaining Fifth, the
Charging Party contends the Employer insisted upon an
extremely broad management prerogative or rights and no
strike clauses while at the same time agreeing to only a
limited arbitration clause and that it thereby insured that
any dispute that might arise and be made the subject of
grievance and arbitration "would arguably fall within this
management prerogative " The management prerogative
clause has previously been set forth. Admittedly it is
broad. Respondent also sought a waiver clause as to
coverage of the contract of all matters appertaining to
bargaining, which clause, is set forth in the footnote below.' e
The grievance procedure which the Charging Party
apparently objects to as unduly limiting when read in
conjunction with the management rights provisions refers
to part of Article XV of the Company's proposed contract
which reads
Section I Grievances shall be limited to matters
concerning the provisions of this Agreement A
"grievance" as that term is used in this Contract,
means a claim by an employee or employees, or the
Union, that the terms of this contract have been
violated, or a dispute exists concerning the proper
application or interpretation of this Contract . . The
parties agree that the power and jurisdiction of any
arbitrator chosen hereunder shall be limited to deciding
whether there has been a violation of a provision or
provisions of this Agreement
The principal difficulty with the Charging Party's
argument as to the proposed grievance and arbitration
provision and the proposed management rights provision
is that the Charging Party did not pursue discussion of
"The Employer and the Union for the life of this Agreement each
voluntarily and unqualifiedly waives the right and each agrees that the
other shall not be obligated to notify or bargain collectively with the other
in respect to any bargainable subject or matter during the term of this
Agreement, unless said notice or subject or matter of collective bargaining
is specifically and explicitly set forth and provided for by the express terms
and provisions of this Agreement It is further agreed all matters which are
subject to bargaining between the Employer and the Union have been the
subject of bargaining between the parties hereto It is further agreed that
this Agreement shall not be open to further bargaining on other matters,
and that the parties hereto shall not be required to give notice of
bargaining on any aspect of terms and conditions of employment not
specifically provided for by a particular provision of this Agreement during
its term
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these provisions at any length in the course of the
negotiations As set forth previously, when the Union did
object to a certain item in the management's rights clause,
this was deleted. See fn. 13. Also Respondent agreed to
some of the changes requested by the Union in
Respondent's proposal as to grievances and arbitration -
particularly concerning the time for various steps,
although it did not agree to the Union's request to
broaden the scope of the grievance arbitration clause. It
is, accordingly, difficult to see any basis for concluding
that the Respondent's positions as to management rights
separately and in relation to the arbitration and grievance
provisions were a frustration of the bargaining under the
circumstances, at least apart from reference to the wage
issues which will be discussed hereafter." In connection
with the Charging Party's (and also the General
Counsel's) contention that the proposed arbitration clause
in the light of the management rights and waiver clauses
would take away the Charging Party's rights to be
consulted or deal with practically all disputes that might
arise during the contract, I do not draw this interpretation
from the proposed arbitration clause To begin with, it is
a clause similar in nature and content to clauses in
numerous labor contracts throughout the nation. The
management rights clause is also comparable to a very
large number of such clauses in labor agreements. The
so-called waiver clause is also like many in common use.
As for the management rights clause limiting the
arbitration clause, it could not do so as to those matters
specifically and expressly covered by the contract. The
grievance-arbitration clause cleary implies the power of
the arbitration to determine the meaning and
interpretation of the terms of the agreement as expressly
set forth 20
Sixth, the Charging Party also argues that the
Employer engaged in interference with rights of employees
both prior to and following the strike and that this
additionally frustrated the bargaining as set forth
hereafter I do not consider what I find hereafter occurred
was sufficiently extensive to have had a material effect on
the bargaining as a whole
Seventh, the Charging Party also emphasized the
Respondent's attitude from the inception of its purchase
of Cad-Nickel as having a material bearing on the
conclusions to be drawn from the bargaining. I am not
drawing any inferences of impropriety from conduct prior
the settlement agreement inasmuch as I consider that
the settlement agreement settled such, that I see no
purpose in this proceeding in attempting to go behind it
and that I do not consider the pleadings herein would
permit so doing. Also such would not appear to be in
order until and unless it were first specifically found the
settlement agreement had been violated. Analysis of the
propriety or impropriety of the bargaining should be
"See in connection with the question of management rights proposals,
Artiste Permanent Wave Company , fn 17, supra
20 1 am aware of the citation by Charging Party and General Counsel of
the Board's decision in Stuart Radiator , 173 NLRB No 27, and to certain
language therein which may appear in conflict with the conclusions set
forth above. However, I think it clear there is no conflict First, because in
Stuart there evidently was insistence by Respondent on the clauses in
question Second, it also appears that the Board 's decision was made in the
context of all of Respondent 's proposals Essentially , the principal
difference here can be summarized by saying Respondent was never
definitely put to the test by the Union concerning what changes
Respondent might or might not make in the management rights clause in
relation to the allegedly limited grievance- arbitration clause Cf Proctor &
Gamble. 160 NLRB 334, 336-339
based upon what occurred therein, particularly what
occurred commencing September 1, 1967 and thereafter
with the previous bargaining being considered in order to
evaluate the entire picture. Respondent and the Charging
Party also rely on the Employer's unilaterally granting
wage increases during 1967 and that the Employer made
no wage improvement offer during the negotiations but
wanted to continue its existing "merit wage program."
The latter two matters will be considered hereafter in
detail, in a number of different respects as set forth."
Putting aside the unilateral wage issues, and
Respondent's position relative to wages, it appears to me
that the bargaining to some extent was sidetracked by the
delays in arranging meetings by the Union and by the job
classification-description issue I recognize in the latter
connection, as previously stated, that this was pertinent to
the total wage issue, but as I have noted it was not a
matter which would prevent a general wage offer from
being made, since the cost of such could be calculated
according to the possible changes in the classifications,
particularly since only a few people were involved I also
note that this did not prevent the Union from making a
wage increase proposal of 10 percent at the very time that
these classifications and descriptions were in issue The
wage increases granted and wage position taken by the
Respondent may have had quite a different impact on the
bargaining but the extent of such effect appears to have
been somewhat muted by the time spent on the
classification-job description issue. Apart from the matter
of the wage question, i e., both the wage increases and the
Company's wage position, I would not consider that there
had been overall bad-faith bargaining by the Respondent
Rather I would conclude that there had been hard
bargaining, and also that the Union had not pursued the
bargaining as effectively as it might. In this connection, I
am not attempting to be a judge of the Union's bargaining
techniques, but rather, what led to the situation that
ultimately resulted The Union may well have had very
good reasons for its method of approaching the bargaining
table, but the issue to be resolved here is whether or not
the Respondent acted in bad faith and whether
Respondent's conduct led to the conclusions which
resulted, including the strike on March 4 I am of the
view that, absent the wage questions, the Respondent's
conduct did not constitute bad-faith bargaining. Whether
the Respondent's position and conduct concerning wages
caused its overall bargaining to be in bad faith will be
discussed hereafter
E The Wage Increases and the Respondent's
Program
As previously set forth, Ansell asserted at the
November 14 meeting that he heard Respondent had
given some wage increases. Becker stated that Ansell
asked if Respondent had given a general wage increase
which he had been told had been done, but Becker denied
that the Company had given any general increase and said
he told Ansell that Respondent had given merit increases
in accordance with its wage program The matter came up
again at the January 15 meeting by which time Ansell
testified he knew that Respondent had granted a half
dozen such increases At this time, although there is some
dispute as to precisely what was said both then and in the
"While I have referred to the Charging Party above, the General
Counsel also made many of the same contentions and the analysis would
be essentially the same as to his contentions
ALCO PLATING CORP. 113
meeting of November 14, the Respondent reasserted that
any increases given were in accord with its prior practice.
During negotiations, the Respondent referred to the wage
program that it had in effect as the one it was following
and wanted to continue to maintain. Respondent proposed
continuance thereof in its conterproposal of November 9,
1967, asserted it was proceeding thereunder at the time of
the discussion, supra, of the wage increases on November
14 and also during the discussion of these increases on
January 14 and reasserted its position that the existing
wage program should be continued at the February 23
meeting when it also offered to subject wage increases
thereunder to the grievance procedure in an undefined
fashion. The Union had requested a 10-percent increase
on September 1967 and a 15-percent increase at the
February 9 meeting and had also proposed that there be a
wage reopener after a year. The Respondent maintained
its position that it did not desire any of these, that it
desired to continue its existing policies, but, as stated, did
offer to make this policy subject to the grievance and
arbitration procedure. What the latter entailed will be
considered hereafter.
The Respondent's position with respect to the wage
increases granted during the course of the bargaining was
that these were in accord with a merit increase wage
policy which it had for some time previous thereto
According to the Respondent, this policy had existed ever
since it had engaged in the metal plating business.
Fitzgerald testified Respondent in deciding whether or not
to give particular employees raises, took into
consideration the economic status of the Company, the
competitive conditions in the area, inflation, the
individual's condition, ability and contribution to the
Company A starting rate depended primarily upon what
had to be paid to attract employees to work for
Respondent. According to Respondent, it conducted
periodic reviews of employees' wage rates usually once or
twice a year and then determined what increases were
warranted in the light of the above set forth "criteria "
Respondent also stated that wage increase reviews might
be initiated by request of individuals or foremen, or arise
from a change of job or classification
Respondent in its brief states that during 1963 and 1964
there was an average of 12.08 employees per month and
0 79 increases per month; in 1965 and 1966 there was an
average of 60.33 employees per month and an average of
5 5 wage increases per month; and for the period from
December 1966 through December 1968 an average of
60 36 employees per month and an average of 4.76 wage
increases per month. Respondent then asserts "there were
actually less increases per employee per month during the
period" about which the complaint alleges violation than
were given in the preceding periods. The Respondent
states that during the months of September and October
1967, Respondent gave 36 wage increases and in the
months of September and October 1966 it gave 33
increases or only three less.
The merit review wage policy was discussed by
Respondent with the Union in negotiations according to
Becker including the increases therewith Becker testified
as set forth, supra, that he had informed the Union, when
the matter of the granting of some increases was brought
up, that Respondent was merely following its existing
practice On the basis of the above, the Respondent
contends that the wage increases or merit increases were
simply given in accord with past practice and that,
therefore, these were not in violation of the Act, and
further that if it hadn't given them it would have been
engaged in a violation
The General Counsel and Charging Party's combined
positions, in essence, are that wage increases were
unilaterally given to almost all of the employees during
the course of the bargaining with the Union , the exclusive
bargaining representative ; that Respondent granted
increases to employees during every month thereof except
June 1967, that some 33 employees or well over 50
percent of the total number were given increases in
October 1967 during the bargaining including 26
employees or about 50 percent on October 30 , 1967 The
position of General Counsel and the Charging Party is
that accordingly these increases in effect amounted to an
entire wage program and covered all aspects of wages;
that there were no specific criteria , that they were not
automatic ; and that accordingly they could not properly
be granted without first discussing them with the Union
prior thereto . The General Counsel and the Charging
Party rely particularly on the Supreme Court decision in
N L R B v Katz, 369 U.S 736. Respondent claims that
the Katz case is clearly distinguishable from the instant
case, taking the position that it was required to grant the
increases herein and that so doing was merely a
continuation of existing practice, whereas such was not so
in the Katz case . In my judgment for reasons set forth
hereafter , Respondent misconstrues the rationale of the
Katz decision.
In addition to the data pointed out by the General
Counsel and the Charging Party, I would note the
following with respect to the extent of the increases given
including the following compilation based upon an
analysis of Respondent's Exhibit 35 which appears to
differ slightly in its figures from those set forth by the
parties ::: Examination of Respondent ' s Exhibit 35 shows
that about 35 employees worked nearly throughout 1967
- these include three who were terminated in December
and one who was terminated and rehired after a short
interval in 1967. Thirty of these 35 received a wage
increase in 1967, 25 of the 30 received an increase in
October 1967.
Of the five who did not receive an increase in October,
one received an increase in April 1967 One received
increases in May, September , November and December.
Two received increases in September. One recieved an
increase in August Z'
I would also note in connection with the criteria
referred to that these involved the exercise of discretion
and judgment in almost all aspects They were clearly not
automatic It is also evident , contrary to the Respondent,
that these increases encompassed its entire wage program
and were not simply merit wage increases as such . The use
of the term "merit" appears to be a misnomer as applied
to increases that encompass the entire wage program and
include not only merit factors but economic and
competitive apsects as well Respondent ' s divisions of the
"I have previously set forth an explanation of these slight variances
based on an analysis of Resp Exh 35 which reflected certain minor errors
by the compiler See fn 8, supra
"Of the five who worked throughout 1967 and did not receive an
increase during 1967 , no increase was shown for two during the period
1965 through 1968, covered by Resp Exh 35 Two received increases in
September 1966 and one received increases in September and October 1966
and January 1968 Of the two who received no increase in the period, one,
a "general helper," was hired in late 1965 at $2 11 an hour substantially
above the hiring rate at that time of other "general helpers " The other,
Lee Tucker, Jr , appeared from Resp Exh 34 to have been with
Respondent in January 1963 starting at $2 and being increased in 1963 and
1964 to $2 45 an hour
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of increases by month may give the appearance of
minimal effect but do not portray an accurate picture of
the overall effect of the increases. These as set forth
amounted during the year 1967 to over 85 percent of those
persons whose employment continued throughout the
entire year (30 of 35), one more received an increase in
January 1968 bringing the percentage to almost 90
percent; and it should also be noted that these 31 increases
were all given after negotiations were first initiated in
March 1967, i e , between then and sometime in January
1968 Furthermore, the granting of increases to over half
the average number of persons employed during one
month, 33 of 54, in October 1967, and about half on one
day 26 of 54 on October 30 in the course of the
bargaining is demonstrative of a general rather than a
"merit increase "
It should also be noted that it is questionable whether
in fact there could have been any past practice applicable
to the situation herein Leaving out the question of
successorship, it is evident that the employing unit after
the purchase by Alco of the Cadmium Nickel Division
was quite a different entity from what it had been when
Alco was separate Alco after the purchase encompassed
far more employees, some six times or more than it had
previously and there were some differences in its products.
It is, therefore, dubious whether a claim of past practice
of Alco in 1963, 1964, and 1965 could be applicable to the
Respondent after the purchase. In addition, any so-called
past practice during the year 1966 (after the purchase)
also raises a question because during that period there was
a controversy over recognition of the Union which was
resolved by the settlement agreement However, it would
not appear that the settlement agreement executed to
resolve a controversy should indirectly permit or allow of
a past practice purportedly established during the time
when matters resolved by the settlement agreement were
in dispute Accordingly, I consider first that it is dubious
whether there was any past practice really applicable
herein.
However, and perhaps most important, I do not
consider that so-called past practice, even if it were an
applicable past practice, where it encompassed an entire
wage program including all wage increases covering
almost all of its employees could permit the granting of
continuing increases thereafter once a union was
recognized as the bargaining agent . The reasons for this I
believe are quite evident since, if this were the case, a like
argument would be applicable to every employer who had
granted periodic general or overall wage increases in the
absence of a union if he had granted increases yearly to
about 90 percent of his employees of either a certain
percent or a certain number of cents per hour (whether
the same or a different amount each year), then
presumably the argument could be that this was a past
practice and he could continue to do so. An employer who
had previously had an automatic merit wage system
(within a rate range) or automatically given a cost of
living increase could possibly fall within the situation
asserted by Respondent but where the employer reserves
discretion as to the amount of any increase or whether or
not to give one, this kind of so-called previous practice is
not a definitive or automatic practice such as might
permit its continuance after the selection of a bargaining
representative It accordingly is clear that this case does
fall within the ambit of the Katz decision of the Supreme
Court and for the same reasons as found by the Court,
the granting of the unilateral increases herein was a
violation of Section 8(a)(1) and (5) of the Act id
In the Katz case, the company without notice to the
union granted merit increases to 20 out of approximately
50 employees, the increases ranging between $2 and $10.
The Court stated
This action too must be viewed as tantamount to an
outright refusal to negotiate on that subject, and
therefore as a violation of Sec. 8(a)(5), unless the fact
that the January raises were in line with the company's
longstanding practice of granting quarterly or
semi-annual merit reviews in effect, were a mere
continuation of the status quo - differentiates them
from the wage increases and the changes in the
sick-leave plan. We do not think it does Whatever
might be the case as to so-called "merit raises" which
are in fact simply automatic increases to which the
employer has already committed himself, the raises here
in question were in no sense automatic, but were
informed by a large measure of discretion There simply
is no way in such case for a union to know whether or
not there has been a substantial departure from past
practice, and therefore the union may properly insist
that the company negotiate as to the procedures and
criteria for determining such increases.
The Court in its decision also stated.
A refusal to negotiate in fact as to any subject which
is within Sec. 8(d), and about which the union seeks to
negotiate, violates Sec 8(a)(5) though the employer has
every desire to reach agreement with the union upon an
over-all collective agreement and earnestly and in all
good faith bargains to that end. We hold that an
employer' s unilateral change in conditions of
employment under negotiation is similarly a violation
of Sec. 8(a)(5), for it is a circumvention of the duty to
negotiate which frustrates the objectives of Sec 8(a)(5)
much as does a flat refusal. [Emphasis supplied.]
*
It follows that the Board may hold such unilateral
action to be an unfair labor practice in violation of Sec
8(a)(5), without also finding the employer guilty of
overall subjective bad faith.
As in the Katz case, the wage increases given pursuant
to Respondent's wage program were in no sense automatic
and invoked the exercise of wide discretion by Respondent
in many respects as previously set forth, i.e , appraisal of
individuals, their jobs, inflation, competitive conditions in
the employment market, the business and financial
condition of Respondent, etc. I accordingly find that by
unilaterally granting these wage increases without first
consulting and discussing such with the Union,
Respondent violated Section 8(a)(1) and (5) of the Act.'
"In this connection I note also the Board decision in Phil Rich
Manufacturing Co, 171 NLRB No 87, where the allegations were
dismissed but on the basis either that the Union had agreed to the granting
of the increases or an impasse had been arrived at in negotiations
concerning such prior to their being granted
"The General Counsel also contends that persons were hired after the
strike commenced at higher starting rates than persons theretofore and
that such was a further violation of Section 8(a)(1) and (5) The law is
clear that a strike as such does not stop the obligation to bargain and that
generally an employer may not increase wages during the strike without
first dealing with the union with respect thereto However , for a number of
reasons I shall not consider the General Counsel's contentions as to the
aforesaid starting rates First, although this matter may technically be
within the scope of the pleadings and encompassed by evidence adduced
during the hearing, I do not recall any previous contention being made
with respect thereto Second , as it does not appear to have been the subject
of any particular attention during the hearing, difficulty arises in
ALCO PLATING CORP. 115
This leads to the next question as to the effect herein of
Respondent's continuing position that it wanted to
maintain its existing wage program. If this position were
standing by itself, there would be some doubt whether
there had been such a firm and final position taken
thereon that a conclusion could be reached as to whether
such manifested improper bargaining or an improper
bargaining position and I would not conclude that it had.
However, such wage position must also be considered in
conjunction with Respondent's rejection of various union
wage proposals and particularly in conjunction with
Respondent's continuing to unilaterally follow this same
"wage policy" as set forth above.26 I conclude that in
addition to Respondent's violation of Section 8(a)(1) and
(5) by its granting of the unilateral wage increases that
Respondent's position as to wages in bargaining when
coupled with it unilateral increases and its evident
unwillingness to discuss the Union's wage proposals,
constituted an additional violation of Section 8(a)(1) and
(5).
The final question in this particular aspect is did
Respondent's unilateral granting of the wage increases and
Respondent's position as to the maintenance of its existing
wage increase program transform its bargaining into
bad-faith bargaining on the whole? An agrument can be
made to that effect. Such might be stronger if the other
matters which were injected into the bargaining and which
seem to have also prevented it from fulfillment were not
present There is no question that the wage issue, although
not always the most vital, is certainly a vital one in the
bargaining relationship I have found the Respondent did
not meet its obligations therewith, but the question still
remains whether it can be found under the overall facts
herein that Respondent's conduct in this respect should
lead to a finding of bad-faith bargaining on the whole.
Although admittedly subject to argument thereon, I am
concluding that the General Counsel has not established
the latter by the preponderance of the evidence necessary.
I reach this conclusion primarily because as set forth
above the bargaining proceeded in such a fashion as to
make it difficult to evaluate the good or bad faith of the
Respondent on the whole in the light of the approach
taken by the Union and also because as set forth, supra,
Respondent did meet reasonably, made a counterproposal,
discussed issues, agreed to the matters enumerated, supra,
some immediately and some after discussion, and also
agreed as indicated to some changes in its
counterproposal. I am, accordingly, not making any
finding as to bad-faith bargaining on the negotiations as a
whole but limiting my finding of violation of Section
8(a)(I) and (5) as stated above.
evaluating such except possibly on a technical pleading and burden of
proof basis which might not fairly take into account numerous factors and
considerations Third, there may be disagreement as to whether or not the
exhibit relied on by the General Counsel supports his contentions as to the
alleged increases in starting rates Fourth , in any event I do not consider
that resolution of such would add anything to my ultimate findings or the
remedy herein
"In this connection , I have considered Respondent 's "offer" to subject
its wage proposal to the grievance arbitration procedure This might have
more significance were it clear as to just what this "offer" encompassed
Would such mean review by an arbitrator of the entire wage program of
Respondent or merely its application to a particular individual or
individuals' What would be the effect of the proposed management rights
clause on an arbitrator's authority in this respect, etc 9
F. The Alleged Violations of Section 8(a)(1)
The alleged 8(a)(1) consisted of testimony of Roosevelt
Walker who said that Foreman Pappas told him that he
didn't think the Respondent would sign the contract
offered by the Union. The latter even if true is not a
violation. Isaac Williams and Frank James testified that
on Saturday, March 2, 1967, they both met with
Fitzgerald in his office. According to Williams, Fitzgerald
told them "you boys get the union off my back and I will
do more for you than has ever been done for you
James testified as to this incident that Fitzgerald said "
if you will get the union off my back I can do something
that hasn't been done before for you fellows but you know
I can't commit myself and I agreed " Fitzgerald denied
making such statements as set forth by Williams and
James
James also said that on April 6 he spoke to Fitzgerald
while on picket duty outside the plant According to
James, Fitzgerald in the course of the conversation said
"if I expected him to sign a contract he would close the
business down first." Fitzgerald denied making such a
statement.
The foregoing involve questions of credibility I note in
this connection that Williams' memory in a number of
respects was faulty and he admitted "I have a very short
memory." If his testimony alone were involved, I would
not rely on it as to the conversation on March 2
However, James appeared on the whole to be honest in his
presentation, although admitting at times he did not state
the truth and that he had a definite personal interest in
wanting the Union in the shop to give him protection and
seniority. James also testified concerning a conversation
with Fitzgerald the day preceding March 2 when,
according to James, Fitzgerald stated ". we could
probably get along better without a union." From my
analysis of the testimony and observation of the witnesses,
I am crediting the testimony of Williams and James
concerning the conversation with Fitzgerald on March 2
and find that Fitzgerald made the statements on that day
which are set forth above I further find such amounted to
a promise of benefit if they would abandon the Union and
that such was a violation of Section 8(a)(1) of the Act.
However, as to the alleged threat by Fitzgerald to close
the business down before he would sign a contract, I am
dubious for the reason that Fitzgerald was advised by
counsel and appeared to be a highly intelligent person. I
do not believe he made such statement and think it more
likely that what he may have said was that he would or
might close the business down before accepting the
contract proposed by the Union The latter statement, if
made, would not reflect a position of closing the business
down in the event of any contract It could also be a
statement which, although perhaps questionable, might
conceivably be made in connection with negotiations and
bargaining where it would not necessarily have the same
effect as a statement made to employees in an organizing
campaign, particularly in the instance where it was made
to a person who was a member of the union negotiating
committee, namely, James In any event, I do not credit
the testimony of James as to Fitzgerald threatening to
close the business before signing a contract.
I conclude that Fitzgerald's promise of benefit was a
violation of Section 8(a)(1) and so find but that the other
matters for reasons set forth were not.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G The Respondent's Refusal to Recognize the Union
In view of my findings above, it is unnecessary to
examine the evidence of whether or not Respondent had a
reasonable doubt as to the Union continuing to have a
majority when it entirely ceased to recognize and bargain
with it on March 19, 1968, as found above Since
Respondent had failed to bargain in violation of Section
8(a)(l) and (5), as found above, it may not rely on a loss
of majority, if any, following its failure to so bargain I
also find that the strike which commenced on March 4,
1968, following the Respondent's failure to bargain in
violation of Section 8(a)(I) and (5) was causally related
thereto and that it was therefore an unfair labor practice
strike. I also find that the Respondent continued to be,
and is still, obligated to recognize and bargain with the
Union and that it further violated Section 8(a)(1) and (5)
on March 19, 1968, when it withdrew recognition from
and entirely ceased to recognize and bargain with the
Union
H. The Alleged Changes in Vacation Policy
Respondent conceded that certain changes in its
vacation policy which occurred later in 1968, after its
refusal to recognize the Union in March 1968, would be
violative of the Act if it were found to have previously
violated the Act by refusing to bargain with the Union I
have so found above and that the Union continued to be
and still is entitled to be recognized as
collective-bargaining representative in the agreed
appropriate unit Accordingly, I find that Respondent by
certain admitted unilateral changes in vacation policy later
in 1968 further violated Section 8(a)(i) and (5) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free now thereof.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(l)
and (5) of the Act by unilaterally granting wage increases
and also by simultaneously in conjunction therewith
asserting its position as to maintaining its existing wage
program involving retention by it of the same
discretionary entire wage increase policy that resulted in
the illegal unilateral granting of wage increases, I shall
recommend that it cease and desist therefrom and from
unilaterally changing its employees' terms and conditions
of employment including unilaterally changing its
employees' wages and other terms and conditions of
employment without prior consultation and bargaining
with the Union as exclusive bargaining representative
This does not mean that any changes hitherto made will
be affected hereby. They may remain as made by the
Respondent. In addition I shall - recommend that
Respondent bargain collectively in good faith with the
Union upon request and it shall not insist on maintenance
of its present unilateral determination of wages as a
condition of entering into a contract but that it shall
bargain in good faith concerning the entire matter of
wages
I shall also recommend that it cease and desist from
promising employees benefits if they abandon the Union
Upon the basis of the foregoing findings of fact, and
upon the record in its entirety, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act
2. Metal Polishers, Buffers, Platers & Helpers
International Union, AFL-CIO, is a labor organization
within the meaning of the Act
3. Metal Polishers, Buffers, Platers & Helpers
International Union, Local No 67, AFL-CIO, is a labor
organization within the meaning of the Act
4 All production and maintenance employees including
shipping and receiving employees, truckdrivers, janitors,
leadmen and leadladies; excluding office clerical
employees, professional employees, estimators, salesmen,
guards, watchmen, and supervisors within the meaning of
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
5. At all times material herein Metal Polishers, Buffers,
Platers & Helpers International Union, Local No. 67,
AFL-CIO, has been the exclusive bargaining
representative of the employees in the aforesaid unit
within the meaning of Section 9(a) of the Act
6 By unilaterally changing the wages of employees as
found above the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
7. By its position taken with respect to maintaining its
existing wage program during the course of the bargaining
coupled with the unilateral wage changes made by it as
found above, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
8. By unilaterally changing vacation benefits,
Respondent violated Section 8(a)(1) and (5) of the Act
9 By refusing since March 19, 1968 to bargain
collectively with the Union as the representative of the
employees in the aforesaid bargaining unit, Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the Act.
10. By promising that the employees would benefit if
they gave up or abandoned the Union as found above, the
Respondent has engaged in violation of Section 8(a)(1) of
the Act.
11. The strike of employees commencing March 4, 1968
was an unfair labor practice strike caused and prolonged
by the Respondent's unfair labor practices.
12. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
and pursuant to Section 10(c) of the Act, it is
recommended that the Alco Plating Corporation, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Failing and refusing to bargain collectively with
Metal Polishers, Buffers, Platers & Helpers International
ALCO PLATING CORP.
Union, Local No 67, AFL-CIO, as the exclusive
collective-bargaining representative of its employees in a
unit composed of all production and maintenance
employees including shipping and receiving employees,
truckdrivers, janitors, leadmen and leadladies, excluding
office clerical employees, professional employees,
estimators, salesmen, guards, watchmen, and supervisors
within the meaning of the Act.
(b) Failing and refusing to bargain in good faith with
the Union by unilaterally changing rates of pay and
vacation benefits of employees in the appropriate unit.
(c) Insisting on maintaining its existing wage review
program
(d) Promising benefits to employees if they abandon the
Union
(e) In any like or related manner interfering with the
right of employees to self-organization, to form labor
organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent such
right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act
(a) Upon request bargain collectively with Metal
Polishers, Buffers, Platers & Helpers International Union,
Local No. 67, AFL-CIO, as the exclusive bargaining
representative of all employees in the above-described
unit, with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment, and if understandings are reached, embody
such understandings in signed agreements
(b) Post at its plant and offices in Los Angeles,
California, copies of the attached notice marked
"Appendix B "Z' Copies of said notices to be furnished by
the Regional Director for Region 21, shall after being
signed by the Respondent's representative, be posted by
the 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 customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps it has
taken to comply herewith 28
IT IS FURTHER RECOMMENDED that the complaint in all
other respects be dismissed.
"in the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order "
117
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify the Regional Director for
Region 21, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that
WE WILL NOT change the wages or vacation benefits
or other terms of employment of our employees without
notifying Metal Polishers, Buffers, Platers & Helpers
International Union, Local No. 67, AFL-CIO, and
giving it an opportunity to bargain collectively about
such proposed changes.
WE WILL upon request bargain collectively in good
faith with the above -named Union as the exclusive
representative of all the employees in the bargaining
unit described below with respect to rates of pay,
wages, hours of employment and other terms or
conditions of employment , and, if an understanding is
reached, embody such understanding in a signed
agreement The bargaining unit is
All production and maintenance employees including
shipping and receiving employees , truckdrivers,
janitors , leadmen and leadladies, excluding office
clerical employees , professional employees,
estimators , salesmen, guards , watchmen, and
supervisors within the meaning of the Act
WE WILL NOT promise employees benefits if they
give up the Union
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of their right to self-organization , to form, join, or
assist the above-named or any other labor organization
of our employees , to bargain collectively through
representatives of their own choosing , or to engage in
other concerted activities for the purposes of mutual
aid, or to refrain from any or all such activities except
to the extent such right may be affected by an
agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act
ALCO PLATING
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway , Los Angeles,
California, 90014 , Telephone 688-5229