Altamil Corp.

National Labor Relations Board - Board Decisions

Jan 11, 1977

227 N.L.R.B. 915 (N.L.R.B. 1977)

ALTAMIL CORPORATION
Altamil Corporation, Aluminum Forge Division and
United Automobile, Aerospace and Agricultural
Implement Workers of America, Local 509. Case
21-CA-14107-
January 11, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On September 13, 1976, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, fmdings,1 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of` the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
i The General Counsel and Charging Party contend that the Respondent
insisted to impasse on an unlawful condition precedent-that Eugene
Leonard, the Union's chief negotiator, not be the service representative for
Respondent's employees. Although there is some confusion in the record, a
preponderance of the testimony demonstrates that Moss, the Respondent's
negotiator, sought to make it clear the Company was reserving the right to
deny Leonard, or any other union representative, access to the company
prermses in keeping with the full meaning and intent of the agreed-upon
"Representation" clause, While Moss at one time did apparently have some
objection to Leonard serving as the representative, his objection never
became a condition precedent to negotiating the "Representation " clause
and impasse was never reached as Leonard specifically stated that he would
not be the service representative, and the parties then agreed to the
"Representation" clause.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This
matter was heard by me in Santa Ana, California, on May
I Most of the relevant and significant dates occurring in this matter
happened in the year 1975 and unless otherwise indicated, all dates
hereinafter shall refer to the year 1975.
2 It is Interesting to note that the only charge filed in this case deals with
the issue of refusal to sign a negotiated collective-bargaining agreement
There was nothing in the original charge relating to surface bargaining I
227 NLRB No. 138
915
27 and 28 , 1976 .1 On October 28 a charge was filed by an
attorney representing the Charging Party alleging violations
on the part of the Altamil Corporation (herein Respondent)
of Section 8(axl) and (5) of the Act by refusing to execute
and implement a negotiated collective-bargaining agree-
ment and that such conduct was for the purpose ' of
discouraging membership in and support for the Union,
thus violating Section 8(aX3) of the Act . On December 17
the Regional Director issued a complaint alleging the
Respondent had refused to bargain in good faith since
October 27 by engaging and continuing to engage in
dilatory and evasive tactics and surface and bad-faith
bargaining. On the same day, December 17, the Regional
Director advised the Charging Party , with a carbon copy to
the Respondent, that he was refusing to issue a complaint
on that portion of the charge dealing with the allegation
that the Employer had refused to execute an agreed-upon
collective-bargaining contract , because the investigative
evidence failed to establish that a mutual agreement had
been reached by the parties .2 On February 16, 1976, the
Charging Party's appeal - to the General Counsel for failure
to issue a complaint on the theory that the Respondent had
failed to sign an agreed -upon contract was dismissed by the
appeals section of the General Counsel 's office. (See Resp.
Exhs. 1(a) and 1(b).)
All parties were afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Based upon the entire record,
including the briefs filed on behalf of the General Counsel
and the Respondent , and upon my observation of the
demeanor of the witnesses , I hereby make , the following
findings of fact and conclusions of law:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged in the business of
manufacturing and selling aluminum products from its
Santa Ana, California, plant. During the past calendar year,
Respondent has in the normal course and conduct of its
business operations shipped and sold goods valued in
excess of $50,000 directly to customers located outside the
State of California. On the basis of this admitted jurisdic-
tional data, I find the Respondent to be an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6)-and (7) of the Act.
n. THE LABOR ORGANIZATION INVOLVED
Local 509 and the International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
America, (UAW) herein called the Union, are labor
organizations within the meaning of Section 2(5) of the Act.
have not regarded this as a fatal defect inasmuch as the Board and courts
have held that additional allegations of violations of the Act may be set forth
in the complaint provided the added alleged violations grew out of the
investigation of the basic incident set forth in the charge. Font Milling
Company, 360 U.S. 301 (1959); Kohler Company, 220 F.2d 3 (C.A. 7, 1955).
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On October 11, 1974, a majority of the employees of
Respondent by a secret ballot election conducted under the
supervision of the Regional Director for Region 21 of the
National Labor Relations Board designated and selected
the Union as their representative for the purpose of
collective bargaining and on February 27, the Board
certified the Union as the exclusive collective-bargaining
representative by virtue of Section 9(a) of the Act for all of
the Respondent's employees in the following appropriate
bargaining unit:
All production and maintenance employees, press shop
employees, die shop employees, quality control employ-
ees, secondary or repair employees, shipping and
receiving employees, warehouse employees, mainte-
nance department employees, and leadmen employed
by Respondent at its facilities located at 502, 516, and
528 East Alton Street, Santa Ana, California; excluding
all other employees, production control employees,
office clerical employees, professional employees, engi-
neering department employees, guards, and supervisors
as defined in the Act.
B. The Early Negotiating Sessions
Prior to the filing of the instant charge in this case,
representatives of the Respondent and the Union met and
engaged in bargaining on 20 separate occasions. The dates
of these meetings were as follows: April 9, 18, 25; May 6,
15, 23; June 5, 13, 20, 26; July 8, 17, 22, 24, 29; August 6,
13; September 16, October 8 and 27. The October 27
meeting might very well be disregarded because at this
session there was nothing much accomplished, except the
Union's insistence to the Respondent that a contract had
been negotiated and they were there to sign the completed
agreement .3 It is necessary to go back to the October 8
meeting to ascertain just what had been accomplished up to
that point in order to evaluate the Respondent's conduct
after that date. However, in order to determine whether or
not Respondent has engaged in evasive, dilatory tactics
indicative of surface bargaining in order to avoid reaching
agreement on a completed contract, we must consider the
total conduct of both parties from the beginning. Bargain-
ing is a two-way street.
While the evidence indicates that the parties were in
agreement on some 24 separate contract articles, the
discussion on October 8 was concerned with the important
subjects of union security, check off (the manner in which
dues would be collected), wages, sick leave and bereave-
ment leave. In addition, it is clear from the evidence that
the parties had not yet agreed on an effective date of the
contract, and there was a serious dispute, or difference of
minds, regarding the length of the contract and a contract
article titled "Assignment of Overtime."
It should be noted that Attorney Moss was the exclusive
representative for the Respondent at all negotiating ses-
3 As earlier indicated, this was the thrust of the Union's charge initially
but both the Regional Director's office and the appeals section of the
sions and with one exception, the September 16 meeting,
Eugene Leonard was the exclusive spokesman for the
Union after May 15. These two individuals were the only
witnesses to testify and, while I believe each endeavored to
relate truthful facts to the best of his ability, I am of the
opinion that where there is a serious conflict Moss'
testimony is the more accurate of the two. The following
testimony by Moss, regarding the wind-up of the October 8
negotiating session, is rather revealing:
When we finished this Gene [Leonard] said, "Well,
are you prepared to change your position on anything?"
I said, "No."
He said, "All right, then I want to go caucus with my
people and see where we stand on these items."
I guess they caucused, oh, about 30 minutes and then
we resumed the negotiations.
Gene said that they were not willing to accept the
company's proposals and that since certain of the
proposals had been made solely for the purpose of
reaching agreement that day, he was now withdrawing
them from the table and now reinstituting other
proposals and he stated that for the purpose of - he
then stated he now wanted a complete union shop.
I told him, "No, that is not acceptable."
He then said he wanted a full 7 and a half percent as
of the effective date and an additional 2 and a half
percent thereafter and we then got into a discussion
concerning another matter, that is the increase that the
company had given and I said, obviously, we are not
communicating with each other and he said no. Then
we had some discussion and he said, when we finished
with it, he said, "All right, you understand what I mean,
Herb, we want a full 7 and a half percent as of October
1 and all other benefits to be effective that date and
another 2 and a half percent six months thereafter."
I said, "That is not acceptable."
He said, "Well, that's what we want."
I said, "I hear what you want. That is not accept-
able.-
He also said that he was now reinstituting his
demand concerning the wage spreads and was reinsti-
tuting the demand concerning, the original demand, for
sick leave and the original demand for bereavement.
I also indicated my position was the same with
respect to those and I said, "Have you anything
further?"
He said, "No."
I said, "I don't have anything further."
He said, "Where do we go from here?"
I said to him, "I don't know. I guess this is where I
stand."
He said, "I guess I will have to go back to my
membership, report to them where we stand in the
negotiations and then let them see what they want to
do," and he said that he was going to seek strike
authorization, would that make any difference.
I said, "No, you do whatever you have to do and I
will do whatever I have to do."
General Counsel found that the parties had not completed a mutually
agreeable contract.
ALTAMIL CORPORATION
This, then was the status of the negotiations as the
meeting of October 8 concluded. As earlier indicated
herein, the meeting of October 27 amounted to nothing
more than a confrontation between the two parties because
the Union felt a contract had been concluded and they
wanted to sign it. Also, as earlier indicated herein, both the
Regional Director of Region 21 and the Appeals Section of
the General Counsel's office in Washington, D.C., agreed
that a contract had not been concluded, and thus Respon-
dent was not in violation of the Act. The complaint alleges
only that the Respondent has engaged in dilatory and
evasive tactics since on or about October 27. We must turn
our attention, then, to what has transpired between the
parties since that date.
C. The Conduct of Respondent Since October 27
There have been four meetings between the parties. These
were held on: November 18, 24; December 18; and
February 6, 1976.
On November 13, Moss sent a letter to Eugene Leonard
which appears in the record as General Counsel's Exhibit
10, and contained the following language:
Gentlemen:
I have been informed by the NLRB that no merit was
found to your charge that my client, Aluminum Forge,
refused to execute an agreed upon contract. At our last
meeting the union refused to engage in any negotiations
but insisted that it would only sign a contract. In light of
the findings of the regional office, it would appear that
you are under a continuing obligation to negotiate with
the company. The company hereby requests that you
resume the negotiations which the union terminated. If
you wish to meet again for the purpose of concluding a
contract, I am available for an immediate negotiations
sessions -[sic].
Unless I hear from you within five (5) days, I shall
assume the union is continuing to refuse to negotiate.
Yours very truly,
On November 14, Moss sent a letter to the union negotiator
containing the following language:
Gentlemen:
At our last meeting, I mentioned that because the
union was dropping its check-off demand, I intended to
submit a proposal restricting the collection of union
dues on company premises. Because the union refused
to participate in negotiations, I never had the opportu-
nity to present my written proposals. Although I had the
written proposals with me, I did not present them
because the union refused to negotiate or consider
anything other than the execution of a collective
bargaining agreement.
I am herewith enclosing the proposals which I would
have presented if afforded the opportunity to do so at
the October 27 meeting. The company also reserves the
917
right to submit additional and further proposals if the
union elects to resume negotiations. .
Yours very truly,
Attached to the above-quoted letter were two enclosures.
One of these clauses dealt with the Union's right of access
to the plant for purposes of grievance or complaint
investigation, and the other dealt with the limitation of dues
collection to nonworking time on the company premises.
The enclosures appear in the record as General - Counsel's
Exhibits 12 and 13. A meeting was arranged for November
18 and these two exhibits are marked with the initials TOK
(tentatively okay) with the date of November 18, 1975.
Leonard testified that the two clauses were agreed to at the
November 18 meeting.
Also at the November 18 meeting, there was discussion of
the article titled "Assignment of Overtime" which proposal,
as presented to the Union on November 18, 1975, appears
in the record as General Counsel's Exhibit 15. There was
also a -proposal presented by the Company regarding
effective date and term which reflected that the effective
date would be as of the date executed by the parties, and to
remain in full force and effect until June 30, 1976.
Apparently, there was also agreement between the parties
that, in the event a contract was executed, the Union would
withdraw any pending charges against the Respondent (see
G.C. Exh 17).
At the next negotiating session on November 24, the
parties discussed what appears to be a paragraph in an
article relating to the amount of wages to be paid an
employee participating in the adjustment of a grievance.
The Charging Party contended that agreement had been
reached sometime as early as June or July that the
Company would pay for an employee's lost time. However,
this was disputed by the Respondent and there was no
written evidence introduced indicating that the matter had
previously been concluded. There is also a contention by
the Charging Party that at either the negotiating meeting of
November 18 or 24 the Respondent insisted that Leonard
not be the service representative for the Union in the
administration of the contract. It was also at the November
24 meeting that the Respondent explained that with regard
to the "Assignment of Overtime" article, -that it would like
to change the word "beyond" in the last paragraph, lettered
"F," to "before and after." It was also in the November 24
negotiating session that Respondent raised a question
regarding the interpretation of the word "displacement" in
the article entitled "Work Assignments.,,
Leonard testified that Moss had explained to him, "that
he [Moss] had reviewed the language with the corporation
attorney, and that the corporation attorney had went over
the language with- him and had suggested to him that, in
some form, that language ought to be corrected, or
changed, or eliminated, or whatever."
On December 16, -Moss wrote the following letter to
Eugene Leonard which appears in the exhibit file as
General Counsel's Exhibit 19:
Gentlemen
On Thursday; December 11, 1975, I telephoned the
union and left word for either Mr. Leonard, Laster, or
Cervantes to telephone me. Mr. Cervantes returned'my
call. I explained to him that I was leaving on a two week
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation beginning Saturday, December 20, and if the
union wished to sign a contract before that time I was
prepared to meet with its representatives at once. I
outlined the following proposal to Cervantes:
1. Term of contract - January 1, 1976, through
December 31, 1976.
2. Union would accept company proposal on
payment of employee time in grievance procedure.
3. Union would accept last company proposal on
assignment, of overtime except paragraph C would be
changed from 2, 3, 4, and 5 times to 3, 4, 5, and 6 times.
4. The parties should attempt to define the precise
application of the term "displacement."
I informed Cervantes. that I was prepared to meet
and negotiate with respect to the above offer but
stressed that time was of the essence. After briefly
discussing the above terms, Cervantes stated that he
would have to discuss my proposal with the other union
agents.-Either he or someone else would call me back
later that day or at the latest the next day.
Having received no response from the union, I
telephoned on Monday, December 15 and spoke with
Bob Laster. I explained to him that I had made a
proposal which could wrap up negotiations. Laster
stated that Leonard was in charge of negotiations.
Laster said he would contact Leonard and have
Leonard telephone me.
As of 5:00 p.m. today, no representative of the union
has called me back and, therefore, I assume the union is
not interested in resuming negotiations or signing a
contract at this time. I am still available to meet on
Thursday, December 18 if the union wishes to negoti-
ate.
Leonard's refusal to accept the last proposal was ex-
plained by Moss as follows:
Leonard said: "Well, my relationship with the Compa-
ny's employees, this membership, is somewhat strained.
It ain't the best, and if I have got to go back and tell
them the Union agrees that we weren't going to get New
Year's Eve and Christmas Eve as paid holidays, my
relationship with the members is just going to be that
much worse."
On December 19 (see G.C, Exh. 20), Moss wrote to
Leonard enclosing copies of the work assignment and
grievance procedure articles which had been agreed to on
December 18, which letter had the following closing
paragraph:
This means the only remaining items on which there is
still disagreement are: (1) effective date - term, and (2)
assignment of overtime.
On January 13, 1976, Eugene Leonard wrote the follow-
ing letter-to the Respondent's representative, Mr. Moss:
Dear Herb:
After reviewing the contents of your letter of Decem-
ber 19, 1975, I would like to advise you that the
language accurately reflects the tentative Agreements
on the Grievance Procedure and Work Assignment
articles that were reached during our meeting on
December 18, 1975.
However, I wish to disagree with your list of
"remaining items." The Union's position remains the
same as taken earlier:
Yours very truly,
At the December 18 negotiating session, the parties reached
agreement regarding the term "displacement" to the "Work
Assignment"- article, and agreed on the time to be paid an
employee participating in the grievance procedure. With
only the effective date, the term, and the "Assignment of
Overtime" article as unresolved issues, the Employer
offered a 1-year contract beginning January 1, 1976,
through December 31, 1976, -and, when that was found
objectionable, Respondent offered to sign a contract
effective December 19 for a 1-year period, but without the
agreed-upon holiday pay for December 24 and December
314 When this was objected to by the Union, the Company
offered to sign a 1-year contract effective December 19 with
December, 24 being a paid holiday, and December 31 being
either a nonpaid holiday, or a working day on which the
employees would receive regular pay, whichever the em-
ployees preferred. When it was suggested that with a 1-year
contract beginning December 19 it might be possible for the
Respondent to avoid payment of the Christmas and New
Year's Eve holidays in 1976, the Respondent again offered
to further compromise by having the contract run from
December 19, 1975, through December 31, 1976, which
would insure the paid holidays for the year 1976.
(1) The membership ratified the Company's last
proposal of October 8, 1975, and it is that
language that should be part of -the parties
Agreement.
(2) That the effective date of the Agreement
should have been no later than December 19,
1975, and the termination date be one (1) year
from that date.
However, in an attempt to settle this matter with you
once and for all, the Union would like to make the
following proposal:
(1) The parties sign the Agreement (including
your proposal of October 8, 1975 on Assignment
of Overtime) with an effective date to be concur-
rent with the receipt of this letter, and to remain
effective as here after discussed.
(2) The parties sign a special agreement, agreeing
to submit the question of the effective date to final
and binding arbitration.
(3) The parties would use basically the same
Arbitration Procedure as was agreed upon in
negotiations.
(4) The issue to be submitted would be as follows:
4 A portion of General Counsel's argument is that Respondent reneged
on a 1-year agreement.
ALTAMIL CORPORATION
Should the effective date of the parties Agree-
ment be December 19, 1975, and expire one (1)
year from that date, or should it be the date of the
actual signing with a termination date of a year
later.
Please advise me at the earliest possible date, as to
your position concerning the above.
Very truly yours,
Moss responded to Leonard's letter on January 16, 1976, in
which he indicated that he was unwilling to submit the
remaining items to arbitration, but that-he was willing to
meet and negotiate on the items remaining (G.C. Exh. 22).
Apparently Leonard never received Moss' letter of
January 16, and on January 26, 1976, Leonard again wrote
to Moss enclosing a copy of his January 13 letter (G.C. Exh.
23).
Moss again responded to Leonard on January 28,
enclosing a copy of his January 16 letter, but, more
importantly, offering to meet and negotiate the following
week if Leonard wished to set up a meeting (G.C. Exh. 24).
This was followed by a further letter from Leonard
generally denying that he had been unavailable, but, more
importantly, arranging for a meeting on February 6.
At the meeting on February 6, starting with fresh copy
the parties agreed to and initialed 29 separate articles, and
an agreement that after executing a signed contract, the
Union would withdraw the unfair labor practice charges
pending with the Board (see G.C. Exh. 26). These agreed-
upon articles do not include effective date, term or an
article captioned "Assignment of Overtime."
Analysis
As I understand the General Counsel's evidence and
arguments as submitted in his brief, the thrust of the case to
support surface bargaining by the Respondent centers in
three areas of conduct after October 28: (1) Respondent
retracted from an agreement to execute a contract for a 1-
year period; (2) Respondent sought to prevent Leonard
from being the service representative for Respondent's
employees; (3) changing and making more onerous certain
provisions of the "Assignment of Overtime" article than
that which had previously been agreed to.
While the surface-bargaining type cases are perhaps the
most difficult for the General Counsel to prove, because of
the extreme difficulty of recapitulating what transpired in a
series of meetings over an extended period of time,
nevertheless, the law requires that the General Counsel
prove his case by a preponderance of the evidence and for
that reason, I feel compelled to recommend a dismissal of
the complaint in this instance.
With regard to the contract duration, the evidence
indicating that Respondent had ever agreed to a 1-year
5 According to the testimony of Mr. Leonard, Paul Bluto was the Union's
spokesman on the date this agreement was supposed to have been made but
Mr. Bluto did not testily.
6 North Central Illinois Laborers' District Council (The Associated General
Contractors of Illinois), 212 NLRB I1(1974).
7 Moore of Bedford Incorporated 187 NLRB 721 (1971).
8 As a ridiculous illustration (but most contract disputes and arbitration
919
contract consisted only of Leonard's recollection of events
that transpired at a time when he was not the primary
negotiator.5
On the other hand, while there was written evidence
offered to show that Respondent sought a contract of
approximately 7 months' duration as late as November 18,
nevertheless, there was undisputed testimony that in the
meeting of February 6 the Respondent made two or three
different offers regarding suggested compromises on the
effective date and the duration of the contract. There is
insufficient proof, in my opinion, to show that the Respon-
dent withdrew or substantially retracted its position regard-
ing effective date or duration after the October 28 meetings
from commitments that had been made prior to that time;
nor were the offers which it made so ridiculous or absurd as
to indicate that it was seeking to avoid reaching agreement
on a contract.
The General Counsel accurately cites what I believe to be
Board law when he argues that it is an unfair labor practice
for one party to insist to the point of impasse that the other
party agree to language regarding a nonmandatory subject
of bargaining.6 Additionally, insisting to impasse on an
unlawful condition precedent is bad-faith bargaining.?
Nevertheless, I am not convinced from all of the testimony
that Moss sought to have the Union agree that Leonard
would not be the service representative, but rather Moss
sought at all times to make it quite clear that the Company
was reserving the right to deny him, or any other union
representative, access to the company premises in keeping
with the full meaning and intent of the agreed-upon
contract clause entitled "Representation." (See G.C. Exhs.
26 and 12.)
The remaining article which General Counsel contends
Respondent sought to retreat from or make sufficiently
more harsh as to tend to prevent agreement relates to the
"Assignment of Overtime." A retracing of the negotiations
regarding this article indicates that there were many
proposals placed on the table but never any complete
agreement, as reflected by Respondent's Exhibits 2, 4, 5, 6,
and 7 and General Counsel's Exhibits 4, 5, and 15. There is
nothing in the record to indicate that there was ever any
agreement on the complete article and the thrust of the
General Counsel's argument is that the minor changes in
this particular article were tending to prevent the parties
from reaching an agreement. I am unable to agree that the
changes sought were so regressive as to be indicative of
efforts by the Respondent to prevent agreement, or that the
Respondent exhibited a totally uncompromising attitude
regarding the parties' differences in this article . Certainly
the word "beyond" as used in the article is a weasel word
needing clarification.8
Section 8(d) of the Act sets forth the obligation of the
parties to bargain in good faith.9 The duty to bargain in
good faith is an "obligation ... to participate actively in
cases anse from ridiculous situations), suppose an employee worked the 7
a.m. to 3 p.m shift in a continuous three-shift operation, and after going
home was called and asked to come back in at 12 rmdmght. Would he be
working "beyond" his shift or "before" his shift? Seeking the answer to such
a simple illustration is often made more complicated by contracts that spell
out the workday which may or may not correspond to the calendar day
9 The relevant portion of Sec. 8(d) reads as follows. "For the purposes of
(Continued)
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the deliberations so as to indicate a present intention to fmd
a basis for agreement .... " 10 This implies both "an open
mind and a sincere desire to reach an agreement" 11 as well
as "a sincere effort . . . to reach a common ground." 12 The
presence or absence of intent "must be discerned from the
record." 13 Except in the cases where the conduct fails to
meet the minimum obligation imposed by law or consti-
tutes an outright refusal to bargain,14 all the relevant facts
of a case are studied in determining whether the employer
or union is bargaining in good or bad faith, i.e., the "totality
of conduct" is the standard through which the "quality" of
negotiations is tested .15 (The language just set forth has
been drawn from The Developing Labor Law, edited by
Charles J. Morris and published by the Bureau of National
Affairs in 1971, because it succinctly states all of the
applicable and relevant factors in resolving the question of
good-faith bargaining.)
Having carefully reviewed the "totality of conduct" of the
representatives of the Employer and the Union in this
matter, I find it most unfortunate and disconcerting that
the employees have been deprived of a collective-bargain-
ing contract since their selection of a collective-bargaining
agent in October 1974, but I am unable to place that blame
solely at the feet of the Respondent. Respondent has
unquestionably bargained toughly and it may be a bitter
pill to swallow , but the evidence fails to exhibit a desire on
this section, to bargain collectively is the performance of the mutual
obligation of the employer and the representative of the employees to meet at
reasonable times and confer in good faith with respect to wages, hours, and
other terms and conditions of employment, or the negotiation of an
agreement or any question arising thereunder , and the execution of a written
contract incorporating any agreement reached if requested by either party,
but such obligation does not compel either party to agree to a proposal or
require the making ofa concession."
to N.L R B. v. Montgomery Ward & Co, 133 F.2d 676,686 (C.A. 9, 1943).
11 Id at 686. N L.RB, v. Truitt Mfg. Co., 351 U.S. 149 (1956)
12 N.L.R.B. v. Herman Sausage Co., 275 F.2d 229 (C.A. 5, 1960)
13 General Electric Co., 150 NLRB 192, 194 (1964).
the part of Respondent to delay, evade, procrastinate, or
postpone its bargaining obligation. I shall recommend
dismissal of the complaint in its entirety with the admoni-
tion that the principals return to the bargaining table and
conclude an agreement.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 509 and the International Union, United
Automobile, Aerospace and Agricultural Implement Work-
ers of America (UAW), are, and each of them is, labor
organizations within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to prove by a
preponderance of the evidence that the allegations set forth
in the complaint are meritorious and worthy of being
sustained.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 16
The complaint is hereby dismissed in its entirety.
14 With the important caveat that "intent" may not even be an issue if the
outward conduct amounts to a de facto refusal to bargain. N L.R B v. Benne
Katz, etc, d/bla Williamsburg Steel Products Co , 369 U.S. 736 (1962).
15 The "totality of conduct" doctrine, generally, stems from ALRB. v.
Virginia Electric and Power Company, 314 U S. 469 (1941).
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.