American Radiator & Standard Sanitary Corp.

National Labor Relations Board - Board Decisions

Nov 12, 1965

155 N.L.R.B. 736 (N.L.R.B. 1965)

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 9, shall , after being duly signed by a authorized representative of
Respondent , be posted by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 9, in writing , within 20 days from
the date of receipt of this Decision , what steps Respondent has taken to comply
herewith.s
It is finally recommended that unless Respondent shall, within the prescribed
period , notify the said Regional Director that it will comply, the Board issue an
Order requiring Respondent to take the aforesaid action.
8 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
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 , upon request, execute with Amalgamated Meat Cutters and Butcher
Workmen of North America , Local 227 , AFL-CIO , a contract containing the
provisions upon which we have reached agreement concerning rates of pay,
wages, hours of employment , and other conditions of employment , covering
employees in the bargaining unit described below. The bargaining unit is:
All full-time and part-time employees at our store located on South Main
Street, Elizabethtown , Kentucky , excluding office clerical employees, store
managers , and other supervisors , professional employees , and guards as
defined in the Act.
WE WILL NOT condition the execution of a collective -bargaining contract with
the above -named Local 227 as the exclusive representative of our employees in
the above -described unit upon a ratification by our employees of any such
agreed-upon collective -bargaining contract.
HOUCHENS MARKET OF ELIZABETHTOWN, 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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Room
2023, Federal Office Building, 550 Main Street , Cincinnati , Ohio , Telephone No.
381-2200.
American Radiator & Standard Sanitary Corporation and Stand-
ard Allied Trades Council . Case No. 9-CA-33320. Novennber 192,
1965
DECISION AND ORDER
On August 6, 1965, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
155 NLRB No. 69.
AMERICAN RADIATOR & STANDARD SANITARY CORP . 737
sion. Thereafter, the Respondent and the Charging Party, respec-
tively, filed exceptions and cross-exceptions to the Trial Examiner's
Decision, and briefs in support thereof.
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 Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions, briefs, and the
entire record in this proceeding, and hereby adopts the findings,' con-
clusions, and recommendations 2 of the Trial Examiner, except as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, American Radiator & Stand-
ard Sanitary Corporation, Louisville, Kentucky, its officers , agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified :
1. Delete paragraph 1(a) of the Trial Examiner's Recommended
Order, and substitute the following as paragraph 1(a) :
" (a) Refusing to bargain with the Union by declining to meet with
the selected negotiating committee of the Union because of the pres-
ence of any representatives of other unions whom the Union has
invited to attend the negotiations for the purpose of participating in
the discussion and advising or consulting with the Union."
2. Delete paragraph 2(a) of the Trial Examiner's Recommended
Order, and substitute the following as paragraph 2(a) :
"(a) Meet and bargain upon request of the Union with the selected
bargaining committee of the Union, including any representatives of
other unions whom the Union has invited to attend the negotiations
for the purpose of participating in the discussion and advising and
consulting with the Union."
3. Delete the first indented paragraph of the Appendix and substi-
tute the following :
IVE WILL NOT refuse to bargain with the Union by declining
to meet with the selected negotiating committee of the Union
1 The Respondent 's request for oral argument is hereby denied as , in our opinion, the
record, including the exceptions and briefs , adequately presents the issues and the positions
of the parties.
2In reaching the conclusion that the Respondent 's refusal to bargain was violative of
the Act. we do not agree with, and therefore do not adopt , the Trial Examiner 's findings
set forth in footnote 4 of his Decision.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of the presence of any representatives of other unions
whom the Union has invited to attend the negotiations for the
purpose of participating in the discussion and advising or con-
sulting with the Union.
4. Delete the third indented paragraph of the Appendix and substi-
tute the following :
WE WILL meet and bargain upon request of the Union with the
selected bargaining committee of the Union, including any rep-
resentatives of other unions whom the Union has invited to attend
the negotiations for the purpose of participating in the discussion
and advising and consulting with the Union.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, under Section 10(b) of the National Labor Relations Act, as
amended, was heard before Trial Examiner George A. Downing in Louisville,
Kentucky , on February 16 and 17 , 1965, pursuant to due notice. The complaint,
which issued on December 16, 1964, on a charge dated September 25, alleged (as
amended ) that American Radiator & Standard Sanitary Corporation , herein called
the Respondent , engaged in unfair labor practices proscribed by Section 8(a) (5) and
(1) of the Act, by refusing to bargain with Standard Allied Trades Council, herein
called the Union, Council, or SATC, on and after November 10, 1964. Respondent
answered denying the refusal to bargain.
The complaint alleged and the answer admitted facts upon which I find that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act and that SATC is a labor organization within the meaning of Section 2(5).
See also 114 NLRB 1151 and 119 NLRB 204.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint charged that Respondent refused to bargain on November 10 by
declining to meet with representative selected by the Union to bargain on behalf of
the Union and 1-y failing and refusing to meet with the selected negotiating com-
mittee of the Union after November 10, 1964, with respect to a contract ( covering
Respondent's pension plan). In a lengthy answer Respondent denied the refusal to
bargain and averred that representatives of the Union had conspired with representa-
tives of other labor organizations at Respondent's other plants to force Respondent to
bargain jointly in an inappropriate unit consisting of all said plants.
There is no issue concerning the appropriateness of the single (Louisville) plant
unit ( see Conclusions of Law No. 1, infra ) nor concerning the SATC's representative
status therein. The central issue is whether Respondent could properly refuse to meet
and negotiate with the Union because of the presence of advisers and experts selected
by the Union from its affiliated and International bodies, including persons from the
industrial union department of AFL-CIO and representatives of unions at Respond-
ent's plants other than at Louisville . Further issues concern Respondent 's defense of
conspiracy and its contention that the Union itself was not bargaining in good faith.
B. The evidence
There is no substantial conflict in the evidence concerning the relevant facts.
SATC has been for many years the certified bargaining representative of the employ-
ees at Respondent 's Louisville plant . It is composed of delegates elected by some 13
separate local unions representing various crafts . The negotiations out of which
the present controversy arose concerned only the matter of Respondent 's noncon-
tributory pension plan which , with local variations , was the same basic plan as was
AMERICAN RADIATOR & STANDARD SANITARY CORP. 739
in effect at other plants . The Louisville agreement was by its terms to remain in
effect until November 30, 1964, and on August 20 SATC notified Respondent that it
desired to negotiate concerning pensions.
In the meantime as early as December 1963 representatives of SATC and of
unions at other plants had met and discussed their feeling of frustration and dissatis-
faction with the results of plant-by-plant bargaining on pensions and the possibility
of improving the effectiveness of bargaining by forming a council of unions repre-
senting Repsondent's employees. Those discussions led ultimately to a meeting held
in Washington, D.C., on June 11 and 12, 1964, under the auspices of the industrial
union department of AFL-CIO, herein called IUD, which was chaired by Donald
Doherty as collective-bargaining coordinator of IUD. In attendance were four mem-
bers of the IUD staff and some 27 representatives of various unions which represented
the employees at a number of Respondent's plants, including Robert E. Aubrey for
SATC, and one steering committee was formed consisting of Aubrey for SATC, and
one representative from each International Union represented at the meeting,' and
IUD, with its specialized knowledge and experience was to give advice, to provide
communications among the local representatives at the local levels and to assist in
coordinating the activities.
The steering committee drafted a set of pension proposals which were adopted by
the group and plans were formulated for alternative procedures to be followed in
negotiating with Respondent on pensions. Under the first procedure, Respondent was
to be requested to negotiate jointly with all the unions which represented employees
at Respondent's plants concerning the changes in the pension plan. If that request
was refused, that plan was to be abandoned and each local union would invite the
steering committee to "sit in with" its negotiating committee in the negotiations at
the separate plants and attempt to coordinate the bargaining activities at plants
where negotiations were proceeding at the same time
A report later prepared by Doherty and mailed to all who were in attendance
summarized the decisions made by the delegates in part as follows:
1. To request the Company through their International Unions, to negotiate
a company wide pension plan.
2. Failing this, to present the Company with uniform demands at all loca-
tions which have pension reopeners in the next year.
3. To coordinate their bargaining on pensions with the assistance of the IUD.
4. To establish a steering committee, representing the various groups, to set
in on all such coordinated negotiations.
5. To arrive at a common settlement of the proposed pension plan.
Doherty's report also contained the statement that:
It was the unanimous decision of the delegates that no local union should agree
to any changes in the Pension Plan until they are agreed to by the Steering
Committee.
Pursuant to the first item of Doherty's report, supra, Aubrey for SATC and the
presidents of the International Unions represented at the meeting sent substantially
identical letters to Respondent informing it that the local unions desired to negotiate
changes in the pension plan through a newly created national coordinating committee
and requesting Respondent to negotiate with that committee concerning changes in
the pension plan. Respondent answered with substantially identical replies in which
it refused to negotiate "with a group not legally certified as collective-bargaining
representatives for employees," but it stated its willingness to meet pursuant to the
terms of existing agreements.
In the meantime SATC representatives had met, had received Aubrey's report on
the June meeting, and had adopted a motion "to invite the National Steering Com-
mittee to participate in the Louisville negotiations."
The first pension agreement to expire was the one at the Louisville plant (on
November 30, 1964), and on August 20 SATC requested bargaining. Pursuant to
arrangement a meeting was scheduled for September 22. On the previous evening
SATC's representatives ( its negotiating committee and business agents) met with
Don Doherty of IUD, Chester Nickel of the steering committee, and Henry Som-
merfeld and Frank Brauer of UAW Local 54 in Detroit.2 They reviewed the pension
i John Dunn of IAM ; Chester Nickel of Boilermakers ; Philip Maggio of Auto Workers ;
Matthew Armstrong of Steelworkers , and Roy Barnes of Teamsters . None of said Inter-
nationals or locals thereof have ever been designated , certified , or recognized by Respondent
as the bargaining agent for the Louisville employees and have never been a part of SATC.
2 Aubrey testified that Brauer and Sommerfeld were alternate representatives for Philip
Maggio, the UAW member of the steering committee , who was in Europe at the time.
212-809-66-vol. 155-48
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposals which had been adopted at the June meeting and later accepted by SATC
on Aubrey's recommendation as a member of the steering committee. Again by
formal motion the proposals were adopted on behalf of SATC.
No actual negotiations were held at the September 22 meeting which was attended
by Doherty, Nickel, Brauer, and Sommerfeld and a large number of delegates and
business representatives of SATC. Respondent was represented by Herbert J. Brown,
manager of industrial relations, Lowell Ashe, supervisor of labor relations, James
Hulsman, assistant to Brown, Superintendent Goepper of the glass manufacturing
facilities, and J. B. Andrews, of the enamel plant, all at Louisville. Brown testified
that following introductions and identifications Aubrey referred to Doherty, Nickel,
Brauer, and Sommerfeld as members of the Union's negotiating committee and stated
that Doherty would serve as spokesman. Answering Brown's inquiry whether SATC
would be bound by Doherty's statements and proposals, Aubrey replied that Doherty
would "be bound by what we tell him."
When Aubrey offered or attempted to offer to Respondent's representatives a copy
of the pension proposals as originally drawn up at the June meeting , Brown inter-
rupted with a request that a roster be passed around for signature by those in attend-
ance. Some 26 signatures were appended by the representatives on the Union 's side,
including the following entries:
Name Title Representing
Don Doherty________________________ Coordinator I U D______________ SATC.
Chester Nickel______________________ Kewanee plant__________________ I B.B
Frank W Brauer____________________ Det----------------------------- UAW 254.
Henry Sommerfeld__________________ Det----------------------------- UAW-254 President
Upon completion of the roster Brown made an objection to the presence of the
"outsiders" or "strangers" and stated that so long as they were present the Company
was not in position to negotiate. Aubrey asked whether Brown was refusing to
bargain and Brown replied that he was as long as the outsiders were present. Brown's
suggestion that a separate caucus room be provided was rejected and the meeting
adjourned. There was conflicting testimony as to whether Aubrey stated his intention
to negotiate "a national package" or stated that he was negotiating only for the Louis-
ville employees. The point is immaterial, however, since the General Counsel makes
no contention that Respondent was guilty of a refusal to bargain at the September
meeting.
On October 27, Aubrey wired Respondent's president, J. A. Grazier, referring to the
close expiration date of the pension agreement and urging him to meet and negotiate
on pensions for the Louisville plant. The wire concluded:
This will also reaffirm what was stated by myself in our meeting of Septem-
ber 22nd 1964 and that is the Standard Allied Trades Council is only negotiating
pensions for the employees at the Louisville plant of American Radiator and
Standard Sanitary Corporation.
On October 28, Vice President Gamber replied, stating that the management
representatives of the Louisville plant were more than ready "to meet with the
appropriate certified bargaining representatives of the Louisville Plant employees
on pension negotiations exclusively with respect to the Louisville Plant." Aubrey
was requested to advise whether his telegram meant he was requesting a meeting with
only such representatives in attendance , since it was Gamber's understanding that
Aubrey's position in the meeting of September 22 was somewhat different than stated
in the telegram.
On November 6, Aubrey replied that SATC, the certified bargaining representative
for the Louisville plant employees, was willing to negotiate on pensions exclusively
with respect to the Louisville plant and that if Gamber had any other understanding
of Aubrey's position he had been misinformed. The letter continued:
As far as who will be in attendance at these negotiations , it is still our position
that we retain the right to select our negotiating committee for such negotiations.
On November 10, Brown replied to Aubrey, at Gamber's request, as follows •
We have never contested your right to select the members of your negotiating
committee for negotiations or any other collective bargaining purpose. Our
negotiations, however, involve only the Louisville Bargaining unit. They are
private negotiations and have never been open to the public or to outsiders from
other bargaining units outside Louisville.
AMERICAN RADIATOR & STANDARD SANITARY CORP. 741
As you know, an unfair labor practice proceeding is now pending before the
NLRB filed by your Union against our Company testing the rights of these
outsiders to attend Louisville negotiation meetings (Case No. 9-CA-3332).
May we suggest that, while this matter is being decided, we continue negotiations
on the same basis as in the past years, without the outsiders being present. If it
is finally determined in the NLRB proceedings that these outsiders have a right
to be present, we must, of course, follow the law and so determine that they can
resume attendance at the meetings under such conditions as may be set in the
ruling.
This proposal will enable negotiations to resume immediately and we hope will
result in an early and peaceful settlement of outstanding issues relating to the
Pension Program .3
On November 30 Respondent and SATC entered into an extension agreement
whereby the terms of the 1963 agreement were extended until a time 30 days after
either party should give written notice of a desire to terminate the agreement. On
January 12, 1965, SATC gave such notice of termination. On January 14, Aubrey
requested further pension meetings and suggested that the parties sign a "consent"
letter similar to one which preceded negotiations at Dearborn (later to be adverted
to). Brown agreed , and on January 15 he wrote Aubrey in part as follows:
We have been notified that a hearing will be held by the National Labor Rela-
tions Board beginning on February 16, 1965, to determine the validity of the
Complaint issued on December 16, 1964 (Case No. 9-CA-3332).
Some weeks ago we proposed that the parties meet to negotiate a new Pension
Agreement for the Louisville Plant without representatives from other plants
being present. This proposal was rejected by the Union. Since it is likely that
a final decision of the pending Charge may not be had for quite some time, the
Company is desirous that negotiations be resumed as speedily as possible. Con-
sequently, we will agree to meet with you and others you may invite. The
Company would meet with such a group under protest and without prejudice
to the Company's rights in the pending litigation before the National Labor
Relations Board. Moreover, it should be clearly understood that the Company
will meet for the purpose of negotiating the Pension Issue for Louisville employ-
ees only, and not to negotiate for any other location of American-Standard.
If the above conditions are agreeable to the Union, it is requested that you
sign the attached copy of this letter on the line below and return the copy to me.
The letter contained a space for a signature, and Aubrey signed and returned a copy.
Material to consideration of Respondents contentions was evidence concerning
negotiations at its other plants at Dearborn, Columbus, and Detroit, at all of which
the pension agreements expired on January 1, 1965, at which the employees were
represented by separate UAW locals, and that which the pension proposals presented
to Respondent were identical with those which SATC presented at Louisville.
At the first meeting at Dearborn there appeared for the union Philip Maggio, Inter-
national representative for the Dearborn plant, Robert L. Bateman, International
representative for the Columbus region, Nickels from the Boilermakers local at
Kewanee, Aubrey and Tedder from SATC, and Doherty from IUD. Only Aubrey,
Maggio, and Nickel were members of the steering committee. During the course of
that meeting Maggio stated as spokesman for the union that though they were meeting
to negotiate on a local basis, they were not giving up on their demand for national
negotiations. In a further meeting held on December 18, with Maggio, Doherty, and
Aubrey in attendance, Doherty commented concerning the Company's position in
refusing to meet with "outsiders" present that if the matter should go to the Board
the parties might well get a decision which "might well lead to national bargaining."
On December 30 Respondent wrote Maggio the first of the "consent" letters,
similar to the one which Brown wrote Aubrey on January 15, supra, i.e., that
Respondent would meet with the outsiders present "under protest and without preju-
dice to the Company's rights and the pending litigation before the National Labor
Relations Board." The letter was countersigned by Maggio.
Pursuant thereto, a further meeting was held at Dearborn on January 7. Among
those appearing for the union were Nickel, Doherty, Tedder, and Bateman, of whom
8 By a letter to its employees on December 10, Respondent informed them that no meet-
ings had been held since the refusal of "outsiders" to leave the September 22 meeting at
Respondent's request and it repeated its objection to the presence of representatives of
other unions during negotiations. Thus it again made clear that it would not meet with
anyone who was not a member of SATC.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only Nickel was a member of the steering committee. Maggio commented in part
that the Company was wasting time and that it "would be better off negotiating a
national package."
The first meeting of the Columbus plant, was held on December 29 with Doherty
and Maggio in attendance on the union side. Maggio was introduced as representing
the steering committee as well as SATC, Baltimore UAW, IAM, Steelworkers, and
other locals that had bargaining relationships with Respondent. On January 11
Respondent wrote another of the "consent" letters, which was signed by Bateman,
UAW International representative at Columbus, acknowledging receipt. Pursuant to
that letter a meeting was held on January 13, with Aubrey and Maggio in attendance.
Bateman inquired during the course of that meeting whether Respondent could not
negotiate for Dearborn and Columbus together in order to save time and also asked
whether Respondent had in mind negotiating a national or companywide pension plan.
Respondent's representatives informed him they intended to negotiate locally.
Local 174, UAW, represents Respondent's employees at Detroit. On December 14
company and union representatives were negotiating at a fourth step grievance meet-
ing, but during the meeting they also discussed the matter of arriving at an agreeable
date for the ensuing pension negotiations. During the course of that conversation
Woodrow Fergerson, International representative for Local 174, commented that the
Union "would be burning up the wires from all locations" and that the Company "had
better be prepared to put up the same offer at all places at all times." Fergerson added
that there was "no use kidding around about this one this time," and that the Com-
pany already had "this amalgamated bargaining package treatment with six potteries,"
that the concept was not new, and that the Company had to have it.
The first pension meeting at Detroit was held on December 30 with Doherty and
Maggio in attendance, but was postponed until after Respondent wrote another of the
series of "consent" letters. A meeting was later held in Detroit on February 3 with
Maggio acting as spokesman in the absence of Fergerson and with Doherty and Nickel
in attendance.
During the course of the meeting Maggio, though agreeing that the negotiations
would apply only to the Detroit employees, stated that the Union's position was that
the basis for settlement "at one property" will be the basis for settlement at other loca-
tions, "because we feel that employees should all be treated the same at all plants."
At a later point when arrangements were being discussed for a further meeting, Maggio
commented that it was silly to be meeting so many times around the country to arrive
at the same answer and suggested that, "A quick fast way to arrive at this answer
would be to have decisions made at one location apply everywhere else." Maggio
inquired whether Respondent's representatives would be willing to recess negotiations
at Detroit until settlement was arrived at elsewhere, to be followed with one meeting at
Detroit to "put the plan in." Also near the end of the session Doherty commented
that though they were pursuing meetings at different places, "that doesn't mean that
we have let go of our national program," and he concluded by referring to the letters
which the International presidents had sent to Respondent's president.
Respondent also relies on evidence concerning certain strike threats allegedly made
to enforce the Union's demands for companywide bargaining. Aubrey admitted that
on February 8, he "indicated" to Brown the threat of a strike in urging Brown to hold
a pension meeting prior to the imminent expiration of the extension agreement. On
February 9, Aubrey informed Brown that he would recommend to the Council in a
meeting shortly to be held that unless the Company met on the 10th, "we close the
plant down Saturday morning."
In earlier discussions between Brown and the Council's executive board on Febru-
ary 5, Brown testified that after he stated the Company would adhere to its position
not to negotiate with outsiders present, Warren Bates, a delegate to the Council and a
member of the executive board, commented that "five plants were involved in this and
there could be a five-plant shutdown." Brown testified further that on the evening of
February 12 he was called at home by one Si Lynton, a delegate to the Council, who
stated that he had just received word from Dearborn that progress was being made in
the negotiations there "and therefore any shutdown of the Louisville plant was post-
poned." On cross-examination Brown testified that Lynton stated that some progress
had been made at Dearborn and that there would be no shutdown at Louisville.
In a February 3 meeting at Detroit Maggio mentioned a February 13 deadline, sug-
gested that the Detroit negotiations be recessed and that one meeting be held to reach
"agreement all over," and added that it would be "a regrettable circumstance" if they
did not "get all of the business done."
Respondent also asserts reliance on evidence concerning two meetings held by the
steering committee, the first in Toronto, Canada, in December 1964, and the second
in Chicago on January 30, 1965. The Toronto meeting was attended by Doherty,
AMERICAN RADIATOR & STANDARD SANITARY CORP. 743
Aubrey, and three other members of the steering committee as well as other union
officials from various unions representing employees of Respondent in the United
States and Canada. The purpose of the meeting was to make further plans to imple-
ment "the common approach to improving the pension plan on a uniform basis."
Agreement was also reached that participating unions would contribute to the expenses
of the members of the steering committee.
The purpose of the meeting in Chicago was to reach uniform recommendations
which could be made to the local unions in bargaining on pension proposals . Uniform
recommendations were in fact reached for five cities, which Doherty identified as
Kewanee, Columbus, Detroit, Dearborn, and Louisville, and recommendations were
made back to the local unions that they should adopt the position as recommended.
Doherty testified that he did not believe that up to the date of the hearing any local
had rejected the recommendation of the steering committee.
C. Concluding findings
To state my conclusions in briefest terms, I find on the foregoing facts that Respond-
ent refused to bargain with SATC within the meaning of Section 8 (a) (5) of the Act
on and after November 10, 1964. In so doing, I uphold the contentions of General
Counsel and Union that the result here is controlled by the case of The Standard Oil
Company, (an Ohio Corporation), 137 NLRB 690, enfd. 322 F. 2d 40 (C.A. 6), for
I find no significant distinction in the factual situation presented and no distinction in
the principle involved.
We start with the basic principle, itself applied in Standard Oil, that the union bar-
gaining representative of employees may select the personnel of its own bargaining
team (137 NLRB at 710 and cases there cited at footnote 28), though under excep-
tional circumstances an employer may validly object to some representative or agent
of the Union. Compare N.L.R.B. v. Kentucky Utilities Company, 182 F. 2d 810, 813
(C.A. 6), for example, with N.L.R.B. v. Roscoe Skipper, Inc., 213 F. 2d 793 (C.A. 5).
In Standard Oil the company claimed as here that the unions were trying to force
companywide bargaining (322 F. 2d at 42), and the question was whether the com-
pany was obligated to meet and conduct bargaining in the presence of temporary Inter-
national representatives who were neither employees of the particular refinery where
negotiations were being conducted nor were they the regular International represent-
atives assigned to that refinery. (Id at 43). The company's objections were based on
apprehensions that the participation of the representatives in question would amount
to companywide bargaining or at least evidence an acquiescence in such bargaining,
and its officers believed that such participation "was part of a subtle plot to bring about
company-wide bargaining." The union disclaimed any such intention or purpose.
(Id.)
The Trial Examiner found that companywide bargaining was not involved and that
the evidence showed that on both sides there was "intramural communication and
coordination with respect to bargaining positions." The Board, affirming, went a step
beyond the Trial Examiner, holding that assuming arguendo the disputed representa-
tives were not in fact the representatives of the employees, the company was not
relieved of the duty to meet with the duly appointed representatives of the unit simply
because the temporary representatives were also present.
The court enforced, finding the Trial Examiner's conclusions to be correct. It held
that absent any finding of bad faith or ulterior motive on the part of the unions, it was
the duty of the company to negotiate with the bargaining committees of the union at
their respective refinery plants even in the presence of the disputed representatives.
It added that if there were unusual or exceptional circumstances management might
make a valid objection to some agent or representative presented by the union for bar-
gaining, citing Kentucky Utilities and Roscoe Skipper, supra. But finding no unusual
or exceptional circumstances which would warrant the company's refusal to bargain,
the court affirmed the Board's finding of a violation.
I find that at no time after October 27 was companywide bargaining involved in the
Union's attempts to negotiate with Respondent at Louisville. In find, however, as in
Standard Oil, that there was on both sides "intramural communication and coordina-
tion with respect to bargaining positions ," for as Brown admitted, he consulted with
representatives of the Company both in the New York office and at other plants con-
cerning Respondent's proposals in labor relations matters, including pensions , testify-
ing that his purpose and object was to receive advice and counsel as well as informa-
tion concerning negotiations elsewhere.
Though the more substantial portions of Respondent 's arguments are devoted to
attempting to distinguish Standard Oil, supra, by bringing its defenses within the excep-
tions noted by the court, I defer consideration of those arguments to take up two
other contentions which Respondent argues preliminarily.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends first that it did not refuse to bargain by its letter of Novem-
ber 10, but that it merely probed for clarification of an ambiguous union bargaining
request. That contention is plainly without merit under the evidence. Aubrey
informed Respondent explicitly, both in his telegram of October 27 and his letter of
November 6, that SATC was negotiating exclusively with respect to the Louisville
plant. Thus in plainest language Respondent was notified that, contrary to any appre-
hensions on its part, the Union had abandoned the earlier request for companywide
bargaining. Respondent could require no more before entering upon an actual bar-
gaining meeting; it was certainly not entitled to require Aubrey to certify in advance
who would appear and attend on the union side or who would comprise its bargaining
committee. Regardless of the merits of its position otherwise, Respondent had no
advance veto power over members of the Union's committee. Furthermore, Respond-
ent made no retreat from its position at Louisville, not to negotiate in the presence of
outsiders (repeated in the letter to its employees on December 10), until January 14,
and then it was Aubrey for SATC, not Respondent, who proposed that negotiations go
forward as elsewhere by Respondent reserving its protests.
We thus reach Respondent's second argument that it had no obligation to meet and
confer with any officer, committeeman, or other person who had not been duly
selected by employees in the Louisville unit. The Standard Oil case requires rejection
of that contention. Furthermore, Respondent ignores the evidence herein that the
SATC membership adopted on formal motion Aubrey's report concerning the forma-
tion and function of the steering committee and invited the committee to participate
in the Louisville negotiations. Again on the eve of the September 22 meeting, SATC's
representatives approved the participation by Doherty and members and alternates on
the steering committee.
Citing provisions of the SATC constitution, however, Respondent argues that other
than Aubrey, no member of the steering committee was qualified to serve as a delegate
to the Council and that Respondent therefore had no obligation to meet and confer
with any person at Louisville who had not been duly designated by the employees
under Section 9(a). That contention rests upon confusion as to the identity of the
statutory representative here. For as Respondent's answer admits, it is SATC which
was chosen by the employees as their bargaining representative. Thus, it is SATC
which must decide how best to fulfill its statutory obligation and which is free to
select the agents through whom it may best achieve its bargaining objectives. Such
an organization-the representative "authorized by the employees to act for them in
dealings with their employers"-can negotiate, speak, and act only through individ-
uals. U.S. v. Ryan, 350 U. S. 299, 302.
Furthermore, Respondent has no standing and no privilege to probe into the internal
arrangements of a union or to concern itself with whether or not the Union conforms
its actions with self-imposed procedural requirements in the designation of negotiators
or representatives. The Prudential Insurance Company of America, 124 NLRB 1390,
1395, 1397. For an employer must deal with spokesmen or negotiators put forward
by the Union without regard to whether or not they are selected in keeping with the
Union's internal rules regarding the extent of their authority or the means of designa-
tion. Id. at 1398. Of course, the shortest answer of all is found in the Board's hold-
ing in Standard Oil under which it is immaterial whether the disputed representatives
were in fact the representatives of the employees.
Respondent's third contention is that it was justified in refusing to meet with persons
who were acting in bad faith and attempting to force it into bargaining in an inappro-
priate unit. Here Respondent attempts to distinguish Standard Oil by bringing its
defenses within the exceptions noted by the court; i.e., "bad faith or ulterior motive"
and "unusual or exceptional circumstances."
Respondent's argument runs as follows: First, the Union through Aubrey partici-
pated in a secret agreement in Washington that it would agree to no changes in the
pension plan until they were approved by the steering committee, thereby accepting
a secret limitation on its freedom to negotiate and to reach agreement at the bargain-
ing table. By that limitation, unknown to Respondent, the Committee was given a
secret and complete veto power over all negotiations at Louisville, thus frustrating
Respondent in its attempts to bargain locally and forcing it to agree upon a company-
wide plan against its will in order to get any agreement at all. Respondent argues fur-
ther that, unlike Standard Oil, the Union here never disclaimed an intention or purpose
to force companywide bargaining and that it had no right to try to force Respondent,
either openly or covertly, to bargain nationally on pensions.
But here, as in Standard Oil, the evidence did not establish that the Union was a
party to any "plot" or "conspiracy" to force Respondent against its will to engage in
companywide bargaining. It is true (as the Union concedes) that the unions repre-
sented on the steering committee adopted a common set of proposals on pensions and
AMERICAN RADIATOR & STANDARD SANITARY CORP. 745
that their ultimate objective was to arrive at uniform agreements at each plant. But
once Respondent rejected the unions' request to negotiate on a multiplant basis, SATC
sought to achieve its objective through negotiations confined exclusively to the Louis-
ville plant.
Nor were Respondent 's claims of "secret limitations" and "veto power" established.
The evidence showed that participation by SATC in the cooperative venture was purely
voluntary on its part , that it retained its autonomy at all times ( as did the other
unions ) and that it was free to invite or not to invite the steering committee to act as
part of its negotiating committee and was free to accept or reject a company offer
regardless of the views of the steering committee . Despite the fact that the delegates
at the June meeting in Washington agreed that no local union would agree to any
changes in the pension plan until they were agreed to by the steering committee, it was
still a voluntary decision to be made by each union and each was free to act independ-
ently in its own interests Indeed, as Brown admitted , Aubrey informed him explicitly
that SATC controlled Doherty, not vice versa. Thus it was SATC, not the steering
committee , which had the veto power and which had the full authority to negotiate
and to act contrary to the wishes of any other organization.
Neither did the evidence support Respondent 's contention that SATC never dis-
claimed any intention to force companywide bargaining but was attempting to the
contrary to force Respondent to bargain nationally . As I have found above in rejecting
Respondent 's first argument , Aubrey twice informed Respondent explicitly that SATC
was negotiating exclusively for the Louisville plant , and there was no evidence that it
was doing otherwise in the subsequent Louisville meetings . The statements which
were made by representatives of other unions in negotiations at other plants amounted
to no more than attempts to persuade Respondent of the desirability of negotiating "a
national package," and there was no evidence that even such persuasive efforts were
made in the Louisville negotiations.
It is to be noted, of course , that the merits of companywide bargaining or of a uni-
form pension plan are not before us and that it is immaterial whether they be good or
bad, desirable or undesirable . For whatever Respondent 's reasons , it was free to bar-
gain or not , as it chose , on matters which were without the scope of mandatory sub-
jects of bargaining . See, e.g., N.L .R.B. v. American Compress Warehouse , Division of
Frost-Whited Co., Inc., 350 F. 2d 365 (C.A. 5); N.L.R.B v Wooster Division of Borg-
Warner Coi poration, 356 U.S. 342, 349 . And though the Union could lawfully seek
to persuade Respondent to the type of bargaining which it requested , it could not (as
the General Counsel concedes ) engage in restraining or coercive conduct or threat of
such conduct to enforce its request.
We thus reach Respondent 's final contention that the Union sought by strike threats
to force it to engage in companywide bargaining . That was plainly not so as concerned
the Louisville negotiations Aubrey's references to strike action as made to Brown
were directed solely at enforcing the Union's requests for a further pension meeting
before the expiration of the extension . Bates' earlier suggestion of the possibility of a
five-plant shutdown amounted to no more than sheer speculation on his part , for Bates
had no standing as a negotiator save at Louisville and was without authority so far as
shown by the evidence to speak on such an important development as strike action to
be taken by other unions at other plants . Lynton's call to Brown is to be viewed in
the light of Aubrey's earlier indication of strike action unleess a further meeting was
held at Louisville . What Lynton told Brown was that the strike would not be called
at Louisville . Finally, Maggio 's statement at Dearborn that it would be regrettable if
the negotiators did not get all their work finished plainly cannot be considered as a
strike threat.
In sum , I conclude and find that Respondent refused to bargain within the mean-
ing of Section 8(a)(5) of the Act by its letter of November 10, 1964, by declining to
meet with representatives selected by SATC to bargain on its behalf and thereafter
by failing and refusing to meet with the selected negotiating committee of the Union .4
11 do not consider that Respondent met its obligation at Louisville after January 15,
1965 , by meeting and purporting to bargain "under protest ." The latter term connotes
a sense of compulsion , restraint , and reluctance which is foreign, if not antithetic, to the
freedom accorded to parties in collective bargaining to propose, to consider , and to engage
in the give and take involved in good-faith bargaining Indeed, Section 8(d) emphasizes
the freedom with which the parties may negotiate by providing specifically that the bar-
gaining obligation does not compel agreement to a proposal or require the making of a
concession . As concerns the statutory obligation , therefore, to bargain under protest seems
no more than a contradiction In terms negating any idea that the bargainer's consideration
of, and reaction to, bargaining proposals can be free and voluntary.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall rec-
ommend that it cease and desist therefrom and that it take certain affirmative action
of the type which is conventionally ordered in such cases, as provided in the Recom-
mended Order below, which I find to be necessary to remedy and to remove the effects
of the unfair labor practices and to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. All employees employed by Respondent at its Louisville plant, excluding the fol-
lowing classifications: manager, superintendent, foremen, assistant foremen, adminis-
trative employees, professional employees, office clerical employees, final enamel
inspectors, final cleaning house inspectors, confidential employees, guards, and super-
visors 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.
2. At all times since the year 1956 a majority of Respondent's employees in said
unit has designated and selected the Union as their exclusive representative for pur-
poses of collective bargaining with Respondent, and said Union has been and is now
the exclusive representative for said employees for the purposes of collective bargain-
ing with Respondent concerning rates of pay, wages, hours, and other terms and condi-
tions of employment, including pensions.
3. By refusing to bargain with the Union on and after November 10, 1964,
Respondent engaged in unfair labor practices proscribed by Section 8(a)(5) and
(1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that the Respondent, American Radiator & Standard Sanitary Corpora-
tion, Louisville, Kentucky, its officers, agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Refusing to bargain with the Union by declining to meet with representatives
selected by said Union to bargain on behalf of the Union with respect to a bargaining
contract and by failing and refusing to meet with the selected negotiating committee of
the Union in order to bargain.
(b) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of rights guaranteed them by Section 7 of the Act
2. Take the following affirmative action which it is found will effectuate the pur-
poses of the Act:
(a) Meet and bargain upon request of the Union with the representatives selected
by said Union to bargain on its behalf.
(b) Post in its plant at Louisville, Kentucky, copies of the attached notice marked
"Appendix." 5 Copies of said notice, to be furnished by the Regional Director for
Region 9, shall, after being signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20 days from the date of the
receipt of this Decision, what steps Respondent has taken to comply herewith.6
If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
In the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
8If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 9, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
SATILLA RURAL ELECTRIC MEMBERSHIP CORPORATION 747
APPENDIX
NOTICE
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain by declining to meet with representatives
selected by Standard Allied Trades Council to bargain on behalf of said Union
with respect to a bargaining contract or by failing and refusing to meet with the
selected negotiating committee of said Union in order to bargain
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of rights guaranteed in Section 7 of the Act.
WE WILL, upon request of said Union, meet and bargain with representatives
selected by said Union to bargain on its behalf.
The appropriate units is:
All our employees employed at our Louisville plant, excluding the follow-
ing classifications: manager, superintendent, foremen, assistant foremen,
administrative employees, professional employees, office clerical employees,
final enamel inspectors, final cleaning house inspectors, confidential employ-
ees, guards, and supervisors as defined in the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organization.
AMERICAN RADIATOR & STANDARD SANITARY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room 2023,
Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200.
Satilla Rural Electric Membership Corporation and International
Brotherhood of Electrical Workers, AFL-CIO. Case No. 10-
CA-5804. November 12, 1965
DECISION AND ORDER
On July 7, 1965, Trial Examiner Thomas S. Wilson issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had not engaged in certain unfair labor practices alleged in the com-
plaint and recommending that such allegations be dismissed. There-
after, Respondent filed exceptions to the Decision; the General Coun-
sel filed exceptions and a supporting brief.
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 [Chairman McCulloch and Members 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.
155 NLRB No. 60.