Alva Allen Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1965

154 N.L.R.B. 1772 (N.L.R.B. 1965)

1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in any union by discharging any of our
employees because of their participation in a strike, other concerted activities
protected by the Act, and their refusal to cross a picket line.
WE WILL NOT discourage membership in any union by failing and refusing
to reinstate any of our employees or otherwise discriminating in regard to hire
or tenure of employment of any employee.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activity for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or all
such activities.
WE WILL offer Joe Benich immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other
privileges, and make him whole for any loss of pay he may have suffered by
reason of his discharge together with interest at the rate of 6 percent.
All our employees are free to become or remain members of any labor organization.
CANADA DRY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify Joe Benich if serving in the Armed Forces of the United
States of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
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, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465.
Alva Allen Industries , Inc. and International Brotherhood of
Electrical Workers, Local Union 814, AFL-CIO. Case No. 17-
CA-2441. September 29,1965
DECISION AND ORDER
On October 29, 1964, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its en-
tirety, as set forth in the attached Trial Examiner's Decision. There-
after, the General Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent filed an answer-
ing brief.
154 NLRB No. 132.
ALVA ALLEN INDUSTRIES, INC. 1773
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the General Counsel's exceptions and brief,
Respondent's answering brief, and the entire record in this proceed-
ing, and finds merit in the General Counsel's exceptions. Accordingly,
we adopt the findings and conclusions of the Trial Examiner only inso-
far as they are consistent with our Decision herein.
We do not agree with the Trial Examiner's finding that Respondent
bargained in good faith with the Union. That the Respondent prede-
termined not to reach and sign a collective-bargaining agreement with
the Union is graphically demonstrated by its continuing questioning
of the Union's majority and its adamant and uncompromising insist-
ence that the Union did not represent the employees, even when the
Board's certification of the Union had approximately 3 more months
to run.
Thus, on February 18, 1964, at the first meeting following the
strike, Respondent's counsel and bargaining representative set the
stage and atmosphere for bargaining, an atmosphere which was never
dispelled. He stated that he was present only to accommodate the Fed-
eral mediator and that he doubted that the Union represented a major-
ity of the people in the plant and therefore doubted that the Union
was the representative of the employees. Similar statements question-
ing the Union's majority occurred at the meetings on March 11 and
April 24. Finally, in its letter of April 25,1964, advising that it would
no longer meet with the Union, Respondent's counsel specifically re-
iterated the position that it had consistently maintained since the
negotiations resumed. Noting that he had met with the Union out of
courtesy to the Federal mediator, he further stated that he "enter-
tained very serious doubts respecting the status of the Union as the
bargaining representative for my client's employees" and that "Alva
Allen Industries does not believe that your Union represents its em-
ployees, in view of the almost complete change of personnel during
the past few months ...."
At the hearing Respondent sought to justify its questioning of the
Union's majority on the grounds that it had replaced the striking
employees. But the mere fact that the striking employees had been
replaced afforded no basis for Respondent's constant challenging of
the Union's majority and representative status. The replacement of
1774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic strikers within the certification year does not relieve an
employer of the duty to bargain in good faith with the certified rep-
resentative of its employees,' and the Board has held that a constant
questioning of a certified Union's majority destroys any chance of
good-faith bargaining.2
The record clearly indicates that despite Respondent's position, the
Union made serious efforts to reach an agreement, but the record is
equally clear that Respondent, by rejecting all union proposals and
refusing to submit counterproposals was merely reflecting its prede-
termination not to reach an agreement. At the hearing Respondent's
counsel characterized the negotiations as a "farce" and in attempting
to justify its rejection of the Union's reduced demands and offer to
agree to a contract on Respondent's terms stated that such a contract
was "[N]ot as good as no contract." This we find reflected Respond-
ent's position at the time it resumed negotiations with the Union on
February 18, a position which could only "render what negotiations
[that] did take place only meaningless words." 3
Accordingly, we find that the Respondent on and after February 18,
1964, refused to bargain in good faith with the Union as the certified
representative of its employees in violation of Section 8 (a) (5) and (1)
of the Act.
Upon the basis of the foregoing findings of fact and upon the entire
record in this case, the Board makes following :
CONCLUSIONS OF LAW
1. The Respondent, Alva Allen Industries, Inc., is an employer
within the meaning of Section 2(2) of the Act and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local Union
814, AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
3. All production and maintenance employees employed by the
Employer at its Clinton, Missouri plant, including regular part-time
employees, but excluding office-clerical employees and guards, profes-
sional employees, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
4. At all times since May 6, 1963, the Union has been the duly certi-
fied collective-bargaining representative of the Employer's employees
in the aforesaid unit.
' Reliance Clay Products Company, 115 NLRB 1736.
2 Alberto Culver Company , 1 136 ^ NLRB 1432 ; American Aggregate Company, Inc., and
Featherlite Corporation, 125 NLRB 909.
3 American Aggregate Company , Inc., and Featherlite Corporation, supra, 922.
ALVA ALLEN INDUSTRIES, INC. 1775
5. By refusing on and since February 18, 1964, to bargain with the
Union as the exclusive representative of the employees in the aforesaid
appropriate unit, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 ( a) (1) and (5)
of the Act.
6. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Alva Allen Industries, Inc., Clinton, Missouri, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain with International Brotherhood of Elec-
trical Workers, Local Union 814, AFL-CIO, as the exclusive collec-
tive-bargaining representative of their employees in the appropriate
unit.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self -organiza-
tion, to form labor organizations, to join or assist International Broth-
erhood of Electrical Workers, Local Union 814, AFL-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in 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 that 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, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Upon request, bargain with the Union as the exclusive repre-
sentative of the employees in the appropriate unit and if an under-
standing is reached reduce it to writing and sign it.
(b) Post at its place of business at Clinton, Missouri, copies of the
attached notice marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for Region 17, shall, after being
duly signed by the Company's representative, be posted by the Com-
pany immediately upon receipt thereof, and be maintained by it for
'In the event that this Order is enforced by a decree of a United States Court of Ap-
peals , there shall be substituted for the words "a Decision and Order " the words "a
Decree of the United States Court of Appeals , Enforcing an Order".
1776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 17, in writing, within
10 days from the date of this Order, what steps have been taken to com-
ply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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, upon request, bargain collectively with respect to rates
of pay, wages, hours of employment, and other terms and condi-
tions of employment, with International Brotherhood of Electri-
cal Workers, Local Union 814, AFL-CIO, as the exclusive rep-
resentative of our employees in the apppropriate unit described
below, and, if an understanding is reached, embody such under-
standing in a signed agreement. The appropriate unit is :
All production and maintenance employees, including reg-
ular part-time employees, but excluding office clerical employ-
ees and guards, professional employees, and supervisors as
defined in the National Labor Relations Act, as amended.
WE WILL NOT by refusing to bargain or in any like or related
manner interefere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form, join, or assist
the above-named Union, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, or to refrain
form any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as permitted by Sec-
tion 8 (a) (3) of the Act, as amended.
ALVA ALLEN INDUSTRIES, INC.,
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.
ALVA ALLEN INDUSTRIES, INC. 1777
Employees may communicate directly with the Board's Regional
Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Mis-
souri , Telephone No. Baltimore 1-7000, if they have any question con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On May 4, 1964, International Brotherhood of Electrical Workers, Local Union
814, AFL-CIO (herein called the Union ), filed a charge against Alva Allen Indus-
tries, Inc. (herein called the Respondent ), asserting that the Respondent has engaged
in and is engaging in certain unfair labor practices affecting commerce as set forth
and defined in the National Labor Relations Act, as amended , 29 U.S.C. Sec. 151,
et seq. ( herein called the Act ). Thereafter , on June 18 , 1964 , the General Counsel
of the National Labor Relations Board , on behalf of the Board , by the Regional
Director for Region 17, issued a complaint and notice of hearing pursuant to Section
10(b) of the Act and Section 102.15 of the Board 's Rules and Regulations , Series 8,
as amended . The complaint alleges that the Respondent had engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of Sections
8(a)(1) and ( 5) and 2(6) and (7) of the Act. On June 23, 1964, the Respondent
filed its answer to the complaint , effectively denying that it was engaging in or had
engaged in unfair labor practices within the meaning of the Act.
Pursuant to notice , this case came on to be heard before Trial Examiner Arthur E.
Reyman at Kansas City, Missouri , on July 8, 1964. At the hearing the General
Counsel and the Respondent were represented by counsel and each party was afforded
full opportunity to he heard, to examine and cross-examine witnesses , to introduce
evidence material and pertinent to the issues , and were advised of their right to argue
orally upon the record, and to file briefs and proposed findings and conclusions.
Briefs were submitted on behalf of the General Counsel and the Respondent, and
have been carefully considered.
Upon the whole record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and at all times material herein has been , a Missouri cor-
poration, with its principal place of business and plant at Clinton, Missouri, where
it is engaged in the manufacture of punch presses. In the course and conduct of its
business the Respondent annually sells goods and products valued in excess of $50,000
directly to customers outside the State of Missouri.
The Respondent is now, and at all times material herein has been , an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local Union 814, AFL-CIO, is,
and at all times material herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges, and the answer admits, that all production and maintenance
employees at the Respondent 's plant, including regular part-time employees, but
excluding office clerical employees and guards , supervisors , and professional employ-
ees as defined in the Act, constitute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act; that on April 26, 1963, a majority of the
employees of the Respondent in this described unit, by secret -ballot election con-
ducted under the supervision of the Regional Director for Region 17 of the Board,
designated and selected the Union as their representative for the purposes of collec-
tive bargaining with Respondent ; and that on May 6 , 1963, the said Regional Director
certified the Union in said unit ; and that commencing on or about July 3, 1963, and
continuing to the date of the issuance of the complaint , the Respondent 's employees
in the above-described unit went on strike.
2O6-446-GG-col. 154-113
1778 DECISIC)NS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges, and the answer denies, that at all times since November 4,
1963, and particularly since on or about December 5, 1963, the Union has requested
the Respondent to bargain with it as the certified exclusive collective-bargaining
representative of the Respondent's employees in the certified unit; and that at all
times since on or about that day the Respondent has failed and refused , and continues
to fail and refuse, to bargain in good faith with the Union as such representative by
(a) questioning the majority status of the Union on February 18, March 11, and
April 24, 1964; (b) rejecting union proposals and failing to submit counterproposals,
in February, March, and April, 1964; and (c) on April 25, 1964, refusing to recog-
nize, bargain, or meet with the Union.
The Facts
A short time after the Union had been certified on May 6, 1963 , as the representa-
tive of the production and maintenance employees at the Respondent 's plant, the
Union and Respondent had reached agreement on an estimated 85 to 90 percent of
the terms of a collective -bargaining agreement , but had been unable to agree on
provisions covering wages and union security . The basic draft of an agreement, from
which the parties worked , had been prepared and submitted to the Union by John H.
Kreamer, counsel for the Respondent . To enforce the union demands, the employees
in the certified unit went out on an economic strike on July 3 , 1963. Within a week
or two thereafter , the Respondent commenced hiring permanent replacements for
the some 40 employees then on strike and, by late October 1963 , had permanently
replaced all strikers . As a result of picket line violence , a State court injunction was
issued, with criminal contempt citations being served upon alleged violators of the
decree . These contempt proceedings are still pending . The Union filed unfair labor
practice charges with the Regional Director for Region 17 which subsequently, in
November 1963 , were dismissed.'
In August 1963 , at the request of Commissioner Charles Harding of the Federal
Mediation and Conciliation Service, the parties had met separately with him and at
this time the Respondent made several proposals , including a change of its position
respecting union security . The Respondent was then informed by the Commissioner
that the Union had not altered its position and would not accept the Company's
counterproposals and expressed his view that a joint meeting of the parties would
serve no purpose.
Under date of November 30, 1963, the Respondent by its vice president addressed
a letter to Union Representative Ervin Wilson , reading as follows:
We wish to inform you that Alva Allen Industries is giving consideration to
giving its employees a day of paid vacation on the day before Christmas in lieu
of the turkeys and Christmas party which the Company has provided in the past.
Should you wish to discuss this or any other aspect of our employees' wages,
hours, or conditions of work, please let us know.
By letter dated December 5, 1963 , Wilson replied to the Respondent 's letter of
November 30, as follows:
In your letter dated November 30, 1963, you stated that if we wished to dis-
cuss the contents of your letter to let you know.
We are definitely interested in discussing the wages , hours and conditions of
work for your employees that are now on strike. We will meet with you any
time a satisfactory date can be arranged.
The Respondent emphasizes the language of Ervin that the Union requested a meet-
ing for employees that are now on strike.
The Respondent , by its vice president , acknowledged Wilson's letter of Decem-
ber 5, suggested that a meeting be arranged during the week of December 16, and
concluded:
While we do not anticipate that our position will be altered in any material
respect, we are authorizing Mr. Kreamer to meet with you to discuss wages,
hours and other conditions of [employment] respecting employees in the unit.
It will be noted in this letter that Respondent 's vice president used the words "and
other conditions of [employment ] respecting employees in the unit ." A date for a
meeting mutually acceptable to the parties could not be arranged ; on about Janu-
ary 31, 1964, Commissioner Harding requested the parties to meet on February 14;
'As noted ahovr-, the charge accelerating the issuance of the complaint herein was
filed on May 4. 1964
ALVA ALLEN INDUSTRIES, INC. 1779
a meeting was arranged at which Attorney Kreamer and Business Agent Wilson
appeared but, because the attorney for the Union, Lewis F. Grayson, did not appear,
the meeting was rescheduled for February 18, 1964.2
On February 18, Attorney Kreamer and Business Agent Wilson met and in the
absence of Attorney Grayson who again had not appeared discussed, in the office of
Commissioner Harding, various proposals on wages and union security. At this
time the principal issue was the demand of the Union that the Respondent discharge
its employees and rehire the strikers, although according to Business Agent Wilson,
he then informed Kreamer that the Union would withdraw the request for a union
shop and take the agency shop in its place and would drop a successors and assigns
clause. On the question of wages, the Company had offered 4 cents an hour and
the Union asked for an average of 20 cents an hour which, Wilson said, it would
reduce to 10 cents an hour, and asked that all striking employees be reinstated.
Kreamer says that at that meeting he proposed a form of preferential rehiring agree-
ment be worked out and both Kreamer and Ervin testified that the Union would
furnish the Respondent with the names of the strikers who would wish to be returned
to work, or rehired. Another meeting was arranged for March 11.
At the March 11 meeting, at which Wilson, Kreamer, and Commissioner Harding
were present, Wilson furnished a list of some 30 strikers said to be desirous of return-
ing to work when vacancies became available. The provisions of a preferential hiring
clause were discussed and the Union further reduced its demands on wages and union
security. Kreamer says that the Union again insisted that the striking employees be
reinstated. According to Wilson, Kreamer said that he thought there would be no
great problem attached in getting the contempt of court charges withdrawn. Further,
according to Wilson, Kreamer again stated that he was still of the opinion that the
Union did not represent the majority of the employees since the striking employees
had been replaced, that it was his belief that the Respondent would not accept any
type of union-shop proposal because the Union did not represent the majority of the
employees because the striking employees had been replaced; that the Company had
withdrawn its previous proposal. It appears that an "equal job opportunity" clause
was discussed which, according to Wilson, would simply mean that if one of the then
employees quit or left the employment of the Company that a striking employee
would be given an equal opportunity for the job open if he was qualified to fill it.
On March 17 Kreamer wrote to Wilson, the letter being received by Wilson on
March 18, in which Kreamer said,
As I indicated I would do at our meeting last week, I have communicated to
the Allen Industries people the Union offer I understood to be the following:
1. Acceptance of the Company proposal as it existed when the people went
on strike , which at that time included a maintenance of membership clause:
2. A proposed increase of 3 cents an hour for each year of a 2-year contract;
3. Placement of the striking employees on a preferential hiring list under
which the Company would contact the senior qualified employee whenever a
vacancy hereafter existed at the plant. In the event the senior qualified employee
did not desire to come back to work or did not return to work within a 24-hour
period after being called to work, the next senior qualified man would be called
and so on down the list
In the first place, it should again be reiterated that the company sometime ago
withdrew its previous offers so that I seriously question whether maintenance of
membership was an offer which was subject to being accepted by the Union.
There would be other points that would also be in issue, I am sure, since so
many things have happened, and the situation has so changed from what it was
8 or 9 months ago. In any event, after due consideration, the company has
found the Union's offer unacceptable.
Should you wish to meet with me or representatives of the Company at any
time, we will be glad to do so.
A meeting scheduled for March 18 was canceled. On that day Wilson wrote to
Kreamer, as follows:
In reply to your letter of March 17, 1964, we wish to advise that we will with-
draw the 1 cent per hour and accept the Company's contract proposal as sub-
mitted on or about June 27, 1963, and the Company's amended proposal on or
about August 23, 1963.
2 Unless otherwise stated , all dates hereinafter shown are for the year 1964.
1780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 11, 1964, I discussed with you the manner in which the striking
employees would return to work and at that time you stated it would be on a
preferential basis. I am asking you to prepare your preferential clause to be
discussed at our next meeting.
I suggest that we have this meeting as soon as possible and at the time and
place suggested by you or Mr. Harding.
You did not mention in your letter the charges against a few of the employees,
which we are also asking to be withdrawn.
Your immediate attention and a conference date will be appreciated.
Under date of March 19, Kreamer replied to Wilson, as follows:
I have before me your letter of March 18 . Apparently you are somewhat
confused respecting the Company's position . I am not sure exactly what you
meant by the Company's amended proposal made on August 23, 1963, but in
any event , you will recall that on September 24 the Company withdrew all pre-
vious offers . This was done by a letter to Mr. Harding of the Federal Mediation
Office, with a copy to yourself. In that letter we stated that the provisions upon
which tentative agreement had been reached should now be renegotiated in view
of the altered circumstances of the Company and the various events which had
occurred since the last negotiation . Accordingly, there is no company offer or
proposal at the moment which is open to acceptance.
Insofar as your reference to the return of the striking employees is concerned,
your indication that I made any proposal that the return would be on a prefer-
ential basis is in error. What actually happened was that you requested that all
the striking employees be returned at once, and I advised you that I felt sure
that this would be impossible, and that the most that I could conceive that the
Company would even consider would be some sort of a preferential hiring clause.
As I indicated to you in my letter of March 17, when I suggested this, and the
other matters that you had proposed to the Company, they found your proposals
unacceptable, and there would therefore be little reason for me to prepare any
preferential hiring clause to be discussed at our next meeting. Of course, if you
wish to prepare such a clause for discussion, that is entirely up to you.
Insofar as further meetings are concerned, we would be glad to meet with you
at any time to discuss any issue between us. I might add that the Company has
no intention to withdraw any charges against the employees who engaged in
illegal conduct. Their activities were in open defiance of a court injunction
designed to preserve peace and order and I am advised that the Company has no
present intention of withdrawing such charges or contempt citations.
At your convenience you can call me or Mr. Harding and discuss the time and
place for a possible meeting, should you consider one to be desirable.
On April 24, Business Agent Wilson and his attorney, Grayson, met with Attorney
Kreamer at Commissioner Harding's office, Grayson advised Kreamer that the Union
had no objection to the agreement which had been discussed before and on June 26,
1963. Kreamer adhered to the Company' s position , previously stated, that the
Respondent had withdrawn all proposals including his June 1963 proposal and that
the Respondent would not agree to preferential hiring of the strikers. Grayson said
that the Union withdrew all demands of any kind with respect to wages, union secu-
rity, and preferential hiring, except Grayson did request that all strikers be given
equal job opportunities. Grayson told Kreamer to write a contract to suit the
Respondent. Kreamer, who was surprised by such an offer, asked if Grayson was
giving him a blank check, to which Grayson replied in the affirmative. Kreamer
again said that he did not feel that the Union represented the employees of the
Respondent in view of the replacement of strikers. After discussing certain provi-
sions of the June 1963 proposal during which Kreamer made two proposals which
differed from the draft from which the parties had been working, and to which the
Union apparently did not disagree, Kreamer said that he would take the Union's
position under consideration and would discuss it with officials of the Respondent.
At this meeting, the Union withdrew its request that court charges be dropped. The
meeting broke up when, according to Wilson, "Mr. Grayson asked him to prepare his
proposal, counterproposal for the next week. Mr. Kreamer said that he was tied up
and was to be out of town or something the next week and he would present it the
week of May 4th." On the following day, April 25, Kreamer wrote to Grayson as
follows:
As you know, I was requested by the Federal Mediator, Mr. Charles Harding,
to meet with you and Mr. Wilson yesterday. I did so out of courtesy to Mr.
ALVA ALLEN INDUSTRIES, INC. 1781
Harding, although, as I expressed to you and Mr. Wilson at the outset, I enter-
tained very serious doubts respecting the status of the Union as bargaining repre-
sentatives for my client's employees.
After hearing your offer in which you, among other things, stated that the
striking employees were withdrawing all requests for reinstatement or even of
preferential hiring, I advised you that I would have to consult with my client.
This has been done and I am advised that Alva Allen Industries does not
believe that your union represents its employees, in view of the almost complete
change of personnel during the past few months, together with other evidence
available to my client.
Accordingly, we will no longer meet with you or representatives of Mr. Wil-
son's union.
At the hearing, Attorney Kreamer asserted that by the Union's action in offering
a "blank check," it was then obvious that they were not interested in the plant
employees, but were merely interested in barring an election. It was for this reason,
that he wrote the letter of April 25.3
Questions Presented
a. Whether the Respondent bargained in good faith at times when it questioned
the Union's majority status.
b. Whether the Respondent's refusal to meet with the Union within the certification
year (encompassing a period of some 11 days) was violative of Section 8(a)(5) and
(1) of the Act.
Concluding Findings
The Respondent points out, and I agree, that the record is devoid of evidence
showing that the Respondent was guilty of interrogation, surveillance, or any other
such acts as would constitute an unfair labor practice under Section 8(a) (1) of the
Act. A violation of Section 8(a)(1), if found, must therefore be derivative of a
Section 8 (a) (5) violation.
The Respondent contends that the evidence shows that the Respondent continued
to meet with the Union until April 25 when it broke off all further negotiations; that
during this period the Respondent had held itself ready to meet with the Union to
discuss the remaining issues that divided the parties; that the evidence discloses that
the Union had failed to even suggest a meeting until its letter of December 5, 1963,
5 months after it called a strike; that during this time the company representative,
Attorney Kreamer, and Commisioner Harding had acted together in setting up meet-
ings for February; that the Union's attorney failed to appear for two meetings sched-
uled in February or the meeting of March 11; and that during this period the Union
was standing steadfast on its demand that the Respondent reinstate the striking
employees. Respondent points out that it was equally firm in its refusal of the
demand to reinstate the striking employees and had introduced a proposal for a sys-
tem of preferential hiring. The Respondent maintains that in view of the fact that
the strike was an economic strike, the Company had every right to refuse to reinstate
the strikers; that it clearly shows that the Union had totally lost the strike and was
not bargaining with any strength attached to its demand. Respondent says that under
these facts it cannot be seriously questioned that the Respondent was engaged in
good-faith bargaining.
On the part of the General Counsel, it is pointed out that at the meetings of
February 18, March 11, and April 24, the Respondent questioned the majority status
of the Union; that at each meeting the Union reduced its demands substantially; that
on March 18 the Union went so far as to drop its wage demands and even agreed to
accept the Respondent's previous proposal made in June 1963; and that the Respond-
ent responded only by stating again that there was no offer or proposal open to
acceptance. Further, it is said that it having finally become fully aware that the
Respondent had no intention whatsoever to negotiate a contract, the Union then
decided to call the Respondent's cards "in this game of surface bargaining," and then
gave the Respondent the opportunity to write its own contract; that the Respondent,
being confronted with no alternative but to execute a contract on the following day,
flatly refused to bargain further.
31t will be noted that Kreamer's letter of April 25 was dated and forwarded only 11
days prior to the expiration of the Union's certification year.
1782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The position of the Respondent seems to me to have been precisely stated by
Attorney Kreamer on cross-examination:
Q. [By Mr. Down.] Isn't it true that at these meetings we have been discuss-
ing you had no real intention on negotiating a contract with this union?
A. No, that isn't true. We hoped for a long time to get a contract with this
union. We had one in July if they hadn't been completely unrealistic.
Q. Why, then, on April 24, 1964, when the Union offered you a "blank check,"
you found the same not acceptable and decided to no longer bargain with them?
A. I couldn't see any point in signing a contract when the Union by its own
words was not interested in the employees and cared less about them. The only
thing they were interested in, apparently, was getting a signature on a scrap of
paper. They obviously didn't represent the employees in the plant, and there
was no purpose in carrying out the farce any further.
Q. Wouldn't a contract on your own terms be most advantageous to the
Company?
A. Not as good as no contract.
Q. In other words, you didn't intend on entering into it?
A. That is not what I said. But when a union does not represent the employ-
ees and is seeking a contract presumably only so it can bar an election from
some other union, the only way I can think of a contract on the terms they pro-
posed would be desirable to them certainly doesn't gain the employer anything.
Q. I have just one further question. Is it your testimony that you didn't feel
the Union represented the employees because its members had gone out on an
economic strike and had been permanently replaced?
A. I do not feel that the Union discharged the obligations it had under the law
to represent the employees in the bargaining unit who were replaced by strikers.
They were interested solely in the strikers in trying to get them back to work.
Was Wilson for the Union during negotiations interested only in returning the
strikers to work; or was he primarily interested in returning the strikers to work and
only secondarily concerned with a contract covering all the employees in the bargain-
ing unit, including the replacement; or was he negotiating for a contract to cover all
employees, strikers, and replacements? According to Kramer, all Wilson wanted was
to get the strikers back to work. I think the answers to these questions lie in the
testimony of Wilson and Kreamer.
Under cross-examination, Wilson testified:
Q. [By Mr. TURNER.] Now, as the certified bargaining agent for the employ-
ees, were you negotiating for all the employees whether they be strikers or work-
ing employees during the negotiations after February?
A. We weren't certified through all employees.
Q. And you were not bargaining for all the employees but only for the union
members according to your understanding, is that correct?
A. That is right.
Q. And you were not considering the needs and desires of the employees that
were working during their negotiations but you are interested solely in the union
members, is that correct?
A. Yes, sir.
Then, in answer to leading questions on redirect examination, Wilson seems to have
changed his testimony:
Q. [By Mr. Down.] When you sat down at negotiations in June of 1963, did
you bargain for all the employees in the unit which were certified?
A. Yes.
Q. And after the July 3rd, 1963, strike, when you sat down at negotiations
sessions , did you bargain for all the employees in the certified unit?
A. Yes .4
But, on recross-examination, Wilson testified:
Q. [By Mr. TURNER.] Now, after that point in your negotiations when it
became evident that the union members would not be reinstated, would not
receive a preference, at that point you said "We will give you a blank check and
let you write any contract that you want," didn't you?
A. Yes.
I Did Wilson mean that he was bargaining for the employees originally in the unit?
ALVA ALLEN INDUSTRIES , INC. 1783
Q. And, isn't it a fact, when you said that, you were negotiating for the
employees that were not members of the Union but the working employees that
were already in the plant?
A. As I told you before, we went in there with the idea of representing the
people that belonged to us and not the others.
Q. That belonged to the Union?
A. Yes.
Wilson's answers on cross-examination are consistent with his letter of December 5,
1963, in which, it will be recalled, he wrote "We are definitely interested in discussing
the wages, hours and conditions of work for your employees that are now on strike."
This is in accord with the recollection of Kreamer. Kreamer was a straightforward
and precise witness and I have no reason to question his credibility. Accordingly,
I am constrained to find that Wilson, during all the times of negotiations, was pri-
marily if not solely concerned with the strikers, and apparently did not try to or
intend to bargain for a contract which would cover the replacements.
In defining the issues herein, it is necessary to remember that the statutory duty to
bargain collectively, as set forth in Section 8(d) of the Act, imposes upon the parties
the obligation "to meet ... and confer in good faith " with a view to the final negotia-
tion and execution of an agreement . The Act does not require either party to agree
to a proposal , nor does it compel it to make a concession . However, the Act does
not permit an employer to engage in mere "surface bargaining" (N.L.R.B. v. Whittier
Mills Company, et at., 111 F. 2d 474, 478 (C.A. 5) ), that is to say, "giving the Union
a run -a-round while purporting to be meeting with the Union for the purpose of
collective bargaining" (N.L.R.B. v. Athens Manufacturing Company, 161 F. 2d 8
(C.A. 5)). In short, "collective bargaining , then , is not simply an occasion for
purely formal meetings between management and labor , in which each maintains an
attitude of `take it or leave it'; it presupposes a desire to reach ultimate agreement to
enter into a collective-bargaining contract ." N.L.R.B. v. Insurance Agents' Interna-
tional Union (Prudential Ins. Co.), 361 U.S. 477, 485, and see N.L.R.B. v. American
National Insurance Co., 343 U.S. 395, 403-404.
The dividing line between permissible "hard bargaining" and unlawful bad-faith
bargaining is often difficult of ascertainment . The difficulty inherent in the problem
of determining good faith, or its lack, in collective bargaining was well stated in
Globe Cotton Mills v. N.L.R.B., 103 F. 2d 91, 94 (C.A. 5): ". . . there is a duty on
both sides, though difficult of legal enforcement , to enter into a discussion with an
open and fair mind , and a sincere purpose to find a basis of agreement ...." Deter-
mining whether that standard has been met is particularly difficult where , as here,
there has been no outright refusal to treat with the Union up until 11 days before
the expiration of the certification period. In N.L.R.B. v. Reed & Prince Manufac-
turing Company, 205 F. 2d 131, 134 (C.A. 1), cert. denied 346 U.S. 887, the court
said:
Coming then to the merits, this is not a simple case where the employer has
made a clear refusal to recognize or bargain with the certified representative of
its employees. Rather, it is one where the employer engaged in a lengthy series
of bargaining conferences , which got nowhere . In such a case the question is
whether it is to be inferred from the totality of the employer's conduct that he
went through the motions of negotiations as an elaborate pretext with no sincere
desire to reach an agreement if possible , or that it bargained in good faith but
was unable to arrive at an acceptable agreement with the Union.
In support of his case, the General Counsel leans heavily on Reliance Clay Products
Company, 115 NLRB 1736, enfd. 245 F. 2d 599 (C.A. 5), wherein there was an eco-
nomic strike followed by the replacement of strikers and the refusal to bargain on
the part of the employer within the certification year on the ground that the union
no longer represented a majority. There, the Trial Examiner (whose report was
adopted by the Board , with an exception not material here ) held (p . 1747) that:
"Alleged , or even actual loss of majority during the one year period is not such an
`unusual' circumstance as would justify an Employer's repudiation of the certified
Union as the statutory representative of the employees." There, the Trial Examiner
relied upon Ray Brooks v. N.L.R.B., 348 U.S. 96.
The reliance by the General Counsel on Reliance Clay Products I believe to be
misplaced in two respects ; first, the facts in the instant case are not analogous to the
facts found in Reliance Clay Products and second, Ray Brooks does not exclude
1784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a situation existing here so that it precludes the finding of the presence of "unusual
circumstances." The Trial Examiner in Reliance Clay Products expressly found
(p. 172):
The General Counsel does not contend that the Respondent had engaged in
collective-bargaining negotiations without a genuine intention of entering into
a comprehensive contract with the Union, but bases Respondent's supported
violations of Section 8(a)(5) of the Act upon the following alleged unlawful
conduct:
1. Effecting changes in wages and conditions of employment without prior
consultation with the Union.
2. Proposing, during negotiations with the Union, a contract provision reserv-
ing to itself the ultimate right to grant wage increases to individual employees
or classes of employees based upon hardship or merit.
3. Refusing to bargain with the Union about Christmas bonuses.
4. Refusing, since October 15, 1955, to accord the Union continued recogni-
tion as a statutory representative of the employees for whom it had been certified
by the National Labor Relations Board on July 5, 1955.
In the instant case no positive acts of interference, restraint, or coercion or unilateral
granting of benefits appear, and are not included in the "totality of the employer's
conduct" mentioned in N.L.R.B. v. Reed & Prince Mfg. Co., supra.
The National Labor Relations Board under the Wagner Act had power to certify a
union as the exclusive bargaining representative of the employees in the bargaining
unit after determination, by election or other suitable methods, that a union held
majority support. The Board laid down the so-called "one-year certification rule,"
that a certification, if based on a Board-conducted election, must be honored for a
`reasonable' period, ordinarily one year in the absence of `unusual' circumstances."
See Kimberly-Clark Corporation, 61 NLRB 90, 92. This rule was continued in effect
by the Board after the enactment of the Labor-Management Relations Act of 1947.
The circuits being divided in their enforcement of this rule, the Supreme Court
granted certiorari in Ray Brooks. In that case 9 of the 13 employees in the bargaining
unit had signed a letter repudiating the union, the letter being signed only a week
after the election and a day before the certification of the union by the Board. The
Court, by Mr. Justice Frankfurter, affirmed the validity of the 1-year rule. In con-
struing "unusual circumstances," Mr. Justice Frankfurter noted that they had appeared
in at least three situations: where the Union had been dissolved (Public Service Elec-
tric and Gas Co., 59 NLRB 325) ; where, as a result of a schism, substantially .all the
members and officers of the certified union had transferred their affiliation to a new
union (Brightwater Paper Company, 54 NLRB 1102, and Carson Pirie Scott & Coin-
pany, 69 NLRB 935) and where the size of the bargaining unit fluctuated radically
within a short time. (Westinghouse Electric & Manufacturing Company, 38 NLRB
404). The Court in Ray Brooks did not decide that the "unusual circumstances"
found in these three cases were exclusive or that in other situations it might be found
that unusual circumstances did exist.5
On behalf of the Respondent it is contended that there are present in the instant
case two elements which distinguish it from any case heretofore decided by the Board:
(1) the Union was not bargaining in good faith; and (2) the Respondent continued
to bargain in good faith until only 11 days before the end of the certification year,
thus distinguishing it from Ray Brooks and related cases.6
In reaching the conclusions I have in the instant case, I have carefully considered
American Aggregate Company, Inc. and Featherlite Corporation, 125 NLRB 909,
and particularly the first two paragraphs of the Trial Examiner's analysis and con-
clusions (pp. 918-919) and his statement (p. 922 ) and footnote 17, that:
If the Respondent in good faith doubted the Union's continuing representative
status, it was privileged to have it put to a test in a Board-conducted election by
filing a petition. Instead it highhandedly arrogated to itself the authority to
s dulfcoast Transit Company, 135 NLRB 185 , cited by counsel for the General Counsel
I. his brief, I do not consider in point here on the question of "unusual circumstances"
or otherwise , because In the instant case a situation involving the repudiation of the
Union during the course of a strike does not appear.
' In support of premise ( a) the Respondent 's brief cites The Wallace Corporation v.
N.L.R.B., 323 U.S. 248. In support of (b), its brief cites N.L.R.B. v. Reliance Clay
Products Company, 245 F. 2d 599 (C.A. 5), enfd. 115 NLRB 1736; N.L.R.B. v. Sam'l
Bingham's on Mfg. Company, 227 F. 2d 751 ( C.A. 6) ; and refers to N.L.R.B. v. Ten-
nessee Coach Company, 237 F. 2d 907 (C.A. 6).
LOCAL 1291, INT'L LONGSHOREMEN'S ASSN., ETC. 1785
resolve the question adversely to the Union while rejecting the Union's offer
to prove its majority again. It had no reasonable foundation for its conclusion.
In these circumstances, not only was its unilateral action an out and out bypass-
ing of the Union, but Price's repetitive assertions in his communications with
Shippey, that the Union did not represent the employees served all the more to
render what negotiations did take place only meaningless words.
It seems to me, in the instant case, that it cannot be said that the Respondent "carried
on its affairs, conducted its business and managed the employees without regard to
any consideration of the employees' chosen representative."
Here, those employees on the payroll as of the certification date all ultimately lost
their jobs when they all were replaced and when they lost the strike; and, because the
Union continued to represent the strikers and did not claim to represent the replace-
ments in the bargaining unit, the Respondent was not precluded from continuing to
conduct its business as it did.
The Respondent has met the obligations of Section 8(d) of the Act. The totality of
its conduct shows that it bargained in good faith but was unable to arrive at an
acceptable agreement with the Union which would actually apply to the employees
in the bargaining unit. The impasse reached on the questions of wages and union
security on July 3, 1963, the day of the strike, was real; the bargaining conduct there-
after shows no bad faith on the part of the Respondent. For the Respondent to have
itself drawn, and then entered into a collective-bargaining agreement with the Union
would, under the unusual circumstances of this case, have been for it to complete a
nullity. "The right to represent employees ... is not a permanent relationship which
should continue without regard to changing conditions, and the Board, in a proper
proceeding upon proper showing [would] take necessary steps to recognize changed
conditions including any [uncoerced] shift in the attitude of the employees." N.L.R.B.
v. J. C. Hamilton, et al., d/b/a J. C. Hamilton Company, 220 F. 2d 492, 494
(C.A. 10).
The preponderance of the evidence being considered, including all facts going to
the Respondent's totality of conduct, it does not appear that the General Counsel has
proven the unfair labor practices alleged in the complaint. The complaint, therefore,
should be dismissed.
CONCLUSIONS OF LAW
1. Alva Allen Industries, Inc., Respondent, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local Union 814, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. The preponderance of the evidence does not establish that the Respondent
engaged in the unfair labor practices alleged in the complaint.
4. The complaint should be dismissed.
RECOMMENDED ORDER
It is recommended that the complaint herein be dismissed.
Local 1291 , International Longshoremen 's Association , AFL-CIO
and Pocahontas Steamship Company
Local 1291 , International Longshoremen 's Association , AFL-CIO
and Northern Contracting Company . Cases Nos. 4-CD-119 and
4-CD-125-1. September 29,1965
DECISION AND ORDER
Upon charges filed by Pocahontas Steamship Company, herein
called Pocahontas, in Case No. 4-CD-119 and by Northern Contract-
ing Company, herein called Northern, in Case No. 4-CD-125-1, the
154 NLRB No. 136.