Alsey Refractories Co.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 785 (N.L.R.B. 1974)

ALSEY REFRACTORIES COMPANY 785
Alsey Refractories Company and Laborers Interna-
tional Union of North America, AFL-CIO, Local
Union No. 253. Case 14-CA-7842
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On July 11, 1974, Administrative Law Judge Benja-
min B. Lipton issued the attached Decision in this
proceeding. Thereafter the Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
and Respondent, and my observation of the demeanor of the
witnesses, I make the following:
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
Respondent is engaged in the manufacture , sale, and distri-
bution of fire brick and related products at its plant in Alsey,
Illinois . During the calendar year 1973, Respondent had a
direct outflow in interstate commerce of products from its
Alsey plant valued in excess of $50,000. Respondent admits,
and I find, that it is engaged in commerce, and that the Union
is a labor organization, within the meaning of the Act.
11 THE UNFAIR LABOR PRACTICES
A. Issues
1. Whether a general wage raise, unilaterally instituted by
Respondent during initial bargaining negotiations with the
certified Union, violated Section 8(a)(5). In particular, the
question turns on whether the parties had reached a true
impasse on the subject of wages.
2. Whether Respondent threatened striking employees
with discharge and with loss of vacation benefits in violation
of Section 8(a)(1).
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Alsey Refractories Company, Alsey, Illinois, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order.
i We affirm the conclusion reached by the Administrative Law Judge that
the Respondent ran afoul of the Act by unilaterally instituting a general
wage raise , as the parties herein had not reached an impasse in negotiations
at the time the increase was put into effect . However, we do not deem
relevant to such a determination , nor do we adopt , the Administrative Law
Judge's observation that the "Respondent was not warranted in assuming
that the Union had abandoned any desire for continued negotiations
" Rather, we rely on what we believe to be a correct standard in deter-
mining deadlock in this case , namely, that the Respondent was not war-
ranted in assuming that further bargaining would have been futile The
Administrative Law Judge so found, and we agree See Taft Broadcasting
Co, Inc, 163 NLRB 475, 478 ( 1967), affd sub nom American Federation
of Television and Radio Artists, AFL-CIO, 395 F 2d 622 (C A D C, 1968)
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: This pro-
ceeding was heard on May 20, 1974,1 in St. Louis, Missouri,
upon a complaint by the General Counsel' alleging certain
violations of Section 8(a)(1) and (5) of the Act.
On the entire record, the briefs filed by General Counsel
i Dates are sequentially in 1973 and 1974, unless otherwise specified
2 The complaint issued on April 26 based on the Union's charge filed on
March I1 and amended on April 18
B The Wage Increase
On July 10, following an election, the Union was certified
as exclusive representative in an appropriate unit of produc-
tion and maintenance employees at Respondent's Alsey
plant. After several telephone conversations between John M.
Evans, the Union's international representative, and Ralph
Edwards, Respondent's attorney, the first bargaining session
was scheduled for September 6. At this meeting, and those
subsequently held, Evans was the spokesman for the Union,
with a committee of about five employees, and Edwards was
spokesman for Respondent, accompanied by President Louis
Goltermann, Sr., Vice President Louis Goltermann, Jr., and
Plant Manager James Riggs.
On September 6, the Union's contract proposals consisting
of 22 articles were discussed in detail. On wages, the Union
requested an hourly increase of 30 cents per year for a con-
tract term of 1 or 2 years. Respondent proposed an hourly
increase of 5 cents per year effective on January 1, 1974, 1975,
and 1976. The parties agreed to seven or eight articles of
noneconomic content. The next session was set for September
21.
On September 21, after concessions made on both sides,
agreement was extended to all but 10 articles, which were
essentially of a money character. Positions on a wage increase
were unchanged. A date was designated for the next meeting.
On October 4, the negotiations consumed about 20 min-
utes. The parties reviewed and maintained their same posi-
tions. Time was devoted in discussing Respondent's disclo-
sure that employees would be laid off this winter, as in past
years, by reason of a shortage of supply to Respondent of
natural gas.' It was mutually decided to call a Federal
215 NLRB No. 146
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediator to sit in at the next session, which was scheduled for
October 17. Following the formal session, as they had agreed,
Evans and Edwards privately met in the coffeeshop. Edwards
said he would try to persuade his principals to make some
position change regarding the 10 articles in disagreement.
Evans stated that if the Union received a substantial wage
increase and a union-security clause, it "could move" and
work out agreement on the remaining items.
On October 13, at a union meeting, a majority of the em-
ployees present voted to authorize a strike. In consideration
of the gas shortage and the layoff of employees, a strike date
was not set. It appears that certain of the layoffs had already
commenced.'
On October 17, a mediator was present to assist in the
negotiations. Respondent raised its wage offer from 5 cents
to 10 cents an hour for each of 3 years. It was evidently not
acceptable to the Union as a substantial increase. In other
respects, there was no change by either party as to the 10
articles in dispute. The mediator then caucused separately
with Respondent, following which he conferred with the
Union alone. Thereafter, the parties jointly discussed the sub-
ject of the gas shortage and the layoffs. Evans
testified-"we, more or less, agreed not to meet any more
until such time as the employees would get back to work."
And it was further requested that the mediator would call all
future meetings. The mediator requested that he be called by
either Evans or Edwards at any time to set up a meeting.
On January 22, Respondent announced to the employees
that they would receive a wage increase of 10 cents effective
January 1. The increase was reflected in their pay on January
25. It is established and undisputed that Respondent put into
effect the same terms in the wage offer which was made and
rejected at the previous bargaining meeting on October 17,
and that Respondent acted unilaterally, without notifying or
consulting with the Union. Although contended in Respon-
dent's opening remarks at the hearing, it is not evidenced that
this general increase was "consistent with the company's
practice."
On January 28, at the(Union's request, the mediator con-
vened the next bargaining conference.' Evans protested that
Respondent's unilateral conduct regarding the wage increase
was unfair. Edwards stated that he had no knowledge of it,
and that the action was taken by Vice President Goltermann
on his own. Edwards indicated that if the Union wanted the
wage increase rescinded he would see that it was done. Evans
answered that it was entirely up to Respondent, and that, as
union representative, he was not going to ask the Company
to take away the 10-cent increase given the employees
At the meeting on February 20, as on January 28, no
progress was made in the negotiations. On March 7, the
employees voted to strike, and on March 11, a strike and
picketing commenced.
On April 14, when the parties next met, the Union reduced
its wage demand to 20 cents and made "considerable other
changes" regarding the 10 articles in issue. At a further and
final session on May 17, the Union confined its requests to
3 Testimony shows that employees were laid off in consequence of a gas
shortage occurring in the winter of the preceding years
4 Dale Neff testified he was laid off on October 13
5 The subsequent meetings , infra, were similarly initiated by the Union's
call to the mediator
a raise of 20 cents, union security, and "six months retention
of seniority," and would then delete all other articles un-
resolved. The strike is still in progress, and the Federal media-
tor has continued active participation in the dispute.
Conclusions
. Respondent argues that the unilateral wage increase an-
nounced on January 22 was lawful in view of an existing
impasse in the negotiations.6 As support for the impasse
contention, it relies on the factors that it had not heard from
the Union for 3 months since the date of its wage offer made
at the previous meeting on October 17; the Union had not
changed its original wage demand; and the Union had not
exercised its authorization to strike which it had received 3
months earlier.
"Whether a bargaining impasse exists is a matter of judg-
ment. The bargaining history, the good faith of the parties in
negotiations, the length of the negotiations, the importance of
the issue or issues as to which there is disagreement, the
contemporaneous understanding of the parties as to the state
of the negotiations are all relevant factors.. . ."' Here, the
parties were engaged in their first experience in bargaining
after union certification, and their efforts to achieve a con-
tract should be afforded the fullest opportunity 8 When the
wage increase was effected, only four meetings, one consum-
ing 20 minutes, had taken place in a 6-month period since the
certification. Thus, the length of time devoted to negotiations,
on its face, appears less than exhaustive. In the particular
circumstances, Respondent unduly placed the onus on the
Union for the lapse of 3 months following the previous bar-
gaining session on October 17. The good-faith obligation to
initiate meetings and to meet was mutual with both parties.
Moreover, Respondent's 5-cent increase in its wage offer on
October 17 was not put forward as a final stand on the issue.
The reason for delay in resumption of negotiations was gener-
ally understood by the parties. Indeed, it had been specifically
agreed on October 17 "not to meet any more" until those
employees-laid off as a result of the gas
shortage-returned to work 9 So far as appears, Respondent
made no attempt to discuss with the mediator the possible
benefit of another meeting with the Union in light of its
intention to implement the wage increase. It did not inform
or consult on the matter with its own negotiator, Attorney
Edwards On January 28, Edwards' offer to rescind the raise
did not detract from the effects of the unilateral action, nor
could the Union be faulted for refusing the burden of the
rescission Bargaining did continue on wages in the additional
meetings held on February 20, April 14, and May
17-approaching the end of the certification year. In the last
6 It is true that-"after bargaining to an impasse , that is , after good-faith
negotiations have exhausted the prospect of concluding an agreement, an
employer does not violate the Act by making unilateral changes that are
reasonably comprehended within his pre - impasse proposals " Taft Broad-
casting Co , Inc, 163 NLRB 475, 478 (1967), affd sub nom American
Federation of Television and Radio Artists, AFL-CIO, 395 F 2d 622
(CAD C, 1968)
1 Ibid
8 Cf Ray Brooks v NL RB, 348 U S 96
9 It is merely indicated that one such employee, Neff , was laid off on
October 13 and recalled on November 15, no data are shown as to any of
the others
ALSEY REFRACTORIES COMPANY 787
two sessions, the Union receded considerably from its earlier
demands on wages and other terms, without inducing any
change in Respondent's position on the 10 articles in disa-
greement. It could well be inferred that the unilateral wage
raise had an impact on the subsequent negotiations. That the
Union had not for 3 months exercised its authorization to
strike, as argued by Respondent, was scarcely an indication
that an impasse had been reached.1° The existence of the
strike begun on March 11, or its purported lack of effective-
ness , could not serve to relieve Respondent of its duty to
bargain in good faith." On this entire record, I find that
Respondent was not warranted in assuming, as of January 22,
that the Union had abandoned any desire for continued
negotiations, or that further good-faith bargaining on wages
would have been futile. I conclude that no genuine impasse
existed when Respondent unilaterally instituted the general
wage raise and that, by such conduct, it violated Section
8(a)(5) as alleged."
C. The Threats by Respondent at the Picket Line
In the early morning on March 11, at the start of the strike,
Vice President Goltermann and Plant Manager Riggs talked
to the picketing employees, telling them generally that their
jobs were available if they wished to come to work." Walter
Scoggins14 testified that Goltermann alone spoke to him in
the following manner: "What are you going to do ... throw
it all away . . . listen to them stupid sons of bitches?" Scog-
gins replied he would "rather listen to them than
him"-upon which Goltermann stated he was fired. In his
testimony, Goltermann did not recall such a separate conver-
sation. Scoggins is credited.
Earnest Hart testified Golterman asked him what he
thought about losing his 3 weeks vacation that year," what
he thought about being fired, and who was paying Hart's
bills. Hart responded he had not lost his vacation yet, was not
aware he was fired, and "not to worry" about his bills. In
Golterman's version, he asked what Hart would do about his
vacation this year, and whether he liked his job or not. I credit
Hart.
As alleged in the complaint, I find that Respondent threat-
ened striking employees with discharge and with loss of vaca-
tion benefits, and thereby violated Section 8(a)(1) of the Act.
III THE REMEDY
Having found that Respondent is engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
10 See , e g, J. H Bonck Company, Inc, 170 NLRB 1471, 1479 (1968),
enfd 424 F 2d 634 (CA 5, 1970)
11 E g, N.L .R B. v J H Rutter-Rex Mfg Co, 245 F 2d 594, 596 (C A
5, 1957), NLR B v Safeway Steel Scaffolds Company of Georgia, 383 F 2d
273 (C A 5, 1967).
12 N.LR B v Benne Katz, etc., d/b/a Williamsburg Steel Products Co.,
369 U S 736, 743 (1962)
13 Riggs did not testify
14 One of the employees on the Union 's negotiating committee
15 Scoggins corroborated this aspect of the conversation , which he over-
heard
Upon the foregoing findings of fact, and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees including
truckdrivers at Respondent's Alsey, Illinois, facility, exclud-
ing office clerical employees, professional employees, guards
and supervisors as defined in the Act, constitute a unit appro-
priate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. The Union is the exclusive representative of all em-
ployees in the appropriate unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment.
5. By unilaterally granting a general wage raise to the unit
employees, without notifying or consulting with the Union,
Respondent had engaged in and is engaging in a refusal to
bargain within the meaning of Section 8(a)(5) of the Act
6. By the foregoing, and by other specific acts and conduct
interfering with, restraining , and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and the
entire record in the case, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER16
Respondent, Alsey Refractories Company, Alsey, Illinois,
its officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Threatening employees with discharge or loss of vaca-
tion benefits, or other reprisals, for engaging in a strike or
other protected concerted activities.
(b) Refusing to bargain in good faith with Laborers Inter-
national Union of North America, AFL-CIO, Local Union
No. 53, by unilaterally instituting wage increases, or changing
any term or condition of employment, without notifying,
consulting, and bargaining with the above-named Union, as
exclusive representative of its employees in the appropriate
unit.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act.
16 in the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, bargain collectively and in good faith
with the above-named Union as the exclusive representative
of its employees in the appropriate unit, and embody in a
signed agreement any understanding reached.
(b) Notify and consult the above-named Union, and afford
it an opportunity to bargain collectively, with respect to any
changes in wages or other terms or conditions of employment
before effectuating such changes.
(c) Post at its Alsey, Illinois, plant and facility copies of the
attached notice marked "Appendix."" Copies of said no-
tice, on forms provided by the Regional Director for Region
14, shall, after being duly signed by Respondent, be posted
immediately upon receipt thereof, in conspicuous places, and
be maintained for a period of 60 consecutive days Reasonable .
steps shall be taken to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
17 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
in a strike or other protected concerted activities.
WE WILL NOT refuse to bargain collectively with La-
borers International Union of North America,
AFL-CIO, Local Union No. 253, by unilaterally in-
stituting wage increases, or changing any term or condi-
tion of employment, without notifying, consulting, and
bargaining with the above-named labor organization, as
the exclusive representative of our employees in the ap-
propriate unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act.
WE WILL, upon request, bargain collectively and in
good faith with the above-named labor organization, as
the exclusive representative of our employees in the ap-
propriate unit, and embody in a signed agreement any
understanding reached.
WE WILL notify and consult the above-named labor
organization, and afford such labor organization an op-
portunity to bargain collectively with respect to any
changes in wages, benefits, or other terms or conditions
of employment before effectuating such changes. The
bargaining unit is:
All production and maintenance employees including
truckdrivers at the Alsey, Illinois, plant, excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ALSEY REFRACTORIES COMPANY
WE WILL NOT threaten employees with discharge or
loss of vacation benefits, or other reprisal, for engaging