American Vitrified Products Co.

National Labor Relations Board - Board Decisions

May 11, 1960

127 N.L.R.B. 701 (N.L.R.B. 1960)

AMERICAN VITRIFIED PRODUCTS COMPANY 701
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in connec-
tion with the operations of the Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) and (5) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Thus, having found that the Respondent interfered with , restrained, and coerced
its employees by the conduct enumerated in the section entitled The Conclusions,
the Trial Examiner will recommend that the Respondent cease and desist from this
and any other like or related conduct.
Having found that the Respondent refused to bargain in violation of the Act, it will
be recommended that, upon request , the Respondent bargain collectively with the
Union and, if an understanding is reached , that such understanding be embodied in
a signed agreement.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union , United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO, and its Local Union No. 155, International
Union, United Automobile, Aircraft and Agricultural Implement Workers of America,
UAW-AFL-CIO, is a labor organization within the meaning of the Act.
2. By engaging in the conduct set forth in the section entitled "The Conclusions,"
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
3. The Union on November 12, 1958 , was and at all material times thereafter has
been the exclusive bargaining representative of all the employees in the unit found
above to be appropriate in the section entitled "The Conclusions," for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representative
of its employees in an appropriate unit beginning November 12, 1958, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication. ]
American Vitrified Products Company and Local 967, United
Brick and Clay Workers of America, AFL -CIO. Case No.
14-CA-2091. May 11, 1960
DECISION AND ORDER
On February 10, 1960, Trial Examiner Vincent M. Rotolo issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.
127 NLRB No. 92.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that American Vitrified Products Company,
its officers, agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in or activities on behalf of Local
967, United Brick and Clay Workers of America, AFL-CIO, or any
other labor organization of its employees, by discriminatorily locking
out or laying off any of its employees, or discriminating in any other
manner in regard to their hire and tenure of employment or any term
or condition of employment except to the extent permitted by Section
8 (a) (3) of the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(b) Refusing to bargain collectively in good faith with Local 967,
United Brick and Clay Workers of America, AFL-CIO, as the ex-
i Respondent contends that its alleged refusal to bargain was justified by the fact that
during the 1959 negotiations the Union breached its oral understanding with Respondent,
reached during the negotiations for the 1958 Contract , that it would not make demands
for wage increases in 1959 and that nonemployees of the Respondent would not be mem-
bers of its 1959 bargaining committee . Like the Trial Examiner, we find it unnecessary
to determine whether such an understanding existed since it would not , in any event,
excuse Respondent 's refusal to bargain herein. Further , it is clear from the legislative
history of the Taft-Hartley Act that Congress did not intend that the breach by a union
of an agreement with an employer should, in itself, constitute an unlawful refusal to
bargain, or excuse a refusal by the employer to bargain with the union . ( H. Conf.
Rept. No. 510 , on H.R. 3020 , p 42 (1947 ) ; see Textron Puerto Rico ( Tricot Division),
107 NLRB 583 ; Wilson 4 Co ., Inc, 89 NLRB 310,317 ) Respondent also contends that
the'insistence by the Union on the inclusion in the 1959 contract of a clause requiring
Respondent to give preference in hiring to employees of its predecessor violated Section
8.(b) (3) of the Act under the rule in N.L R.B. v. Wooster Division of Borg-Warner Corpo-
ration, 356 U.S. 342, since , such employees being outside the bargaining unit, their right
to reemployment was not a mandatory subject for bargaining 'Under Section 8(d) of
the Act. Respondent further contends that the Union also violated Section 8 (b)(2) of
the Act since it insisted that preference in hiring be given on the basis of the seniority list
compiled by the Union and the predecessor Company in 1956, which "was equivalent to
the Union roster in this situation ." As the clause sought by the Union related only to
hiring for positions in the unit for which the Union was exclusive representative, and as
we are not satisfied that the record established that the Union sought to give preference
in hiring to union members , like the Trial Examiner, we find no merit in these contentions,
and they are inadequate as a defense to the Respondent's refusal to bargain.
AMERICAN VITRIFIED PRODUCTS COMPANY 703
elusive representative of all the employees in the appropriate bar-
gaining unit, described below, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment,
by (1) engaging in or threatening to engage in lockouts, layoffs, or
other measures adversely affecting the earnings of its employees for
the purpose of forcing the aforesaid labor organization or the em-
ployees in the appropriate bargaining unit to eliminate any person
or persons from the committee selected by them to negotiate a con-
tract; (2) discussing contract demands made upon it by the aforesaid
labor organization, or any other labor organization of its employees,
directly with its employees or making threats of economic or other
reprisals to induce said employees to withdraw their support of said
demands and to support its own contract proposals; (3) insisting,
during negotiations for a collective-bargaining contract with the
aforesaid labor organization, or any other labor organization of its
employees, that the composition of the bargaining and/or grievance
committee which is to function under said contract be discussed and
negotiated after said labor organization has indicated it does not wish
to discuss or negotiate on said subject; (4) insisting, as a condition
of any contract being executed, that a provision or provisions be in-
cluded in a contract being executed with the aforesaid labor organiza-
tion, or with any other labor organization of its employees, which
would have the effect of limiting the right of said labor organization
or of the employees it represents to select the persons who shall act
on the bargaining and/or grievance committee or committees which
will function under the term of said contract or by engaging in any
like or related conduct in derogation of its statutory duty to bargain
in good faith. The appropriate unit is: All production, maintenance,
boiler, and engineroom employees working at the Respondent's plants
located at White Hall, Illinois, excluding office clerks who perform no
production, maintenance, boiler, or engineroom work, superintendents,
assistant superintendents, technical employees, foremen, inspectors,
office employees, watchmen, professionals, guards, and supervisors as
defined in the Act.
(c) Threatening its employees with plant shutdown or layoff or a
continuation thereof to force them to remove persons designated by
them to act as their bargaining agents, or making threats of economic
or other reprisals against or promises of benefit to said employees to
induce them to withdraw their support of contract demands pre-
sented to it on their behalf by their collective-bargaining agent, and
to support the contract proposals it made or intends to make to said
bargaining agent.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership in a
labor organization as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole all the employees listed in Appendix A, attached
hereto, for any loss of pay they may have suffered by reason of the
discrimination against them, in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
' (b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity records, timecards, personnel records and reports, and all other
records necessary to analyze and compute the amount of backpay due
to each of the employees listed in Appendix A, in accordance with the
terms of this Order.
(c) Rescind and eliminate from the collective-bargaining contract
dated June 12, 1959, and the stipulation attached thereto, any and all
provisions which have the effect of limiting the right of the aforesaid
labor organization and the employees it represents to select the person
or persons who shall act as their representatives on the bargaining
and/or grievance committee or committees established under the terms
of said contract.
(d) Post at its plants at White Hall, Illinois, copies of the notice
attached hereto marked "Appendix B." 2 Copies of such notice, to be
furnished by the Regional Director for the Fourteenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent be posted by the Respondent immediately upon the receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply with the terms of the Order.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
AMERICAN VITRIFIED PRODUCTS COMPANY 705,
APPENDIX A
1. A. J. Pinkerton
2. Lawrence Suttles
3. Delbert Hardwick
4. Francis Printy
5. Russell Castleberry
6. Eugene Gillis
7. William Bridges
8. Floyd Kessler
9. Paul Fry
10. Harold Snyder
11. Carrel Dunlap
12. Richard Pilkington
13. Howard Pilkington
14. Clarence Lister
15. Daniel Koenig
16. W. C. Fry
APPENDIX B
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 you that :
WE WILL NOT discourage membership in or activities on be-
half of Local 967, United Brick and Clay Workers of America,
AFL-CIO, or any other labor organization representing our
employees, by discriminatorily locking out or laying off our em-
ployees or discriminating against them in any other manner in
regard to their hire and tenure of employment or any term or
condition of employment, except to the extent permitted by Sec-
tion 8(a) (3) of the National Labor Relations Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT refuse to bargain collectively in good faith with
said Local 967, or any other labor organization representing our-
employees, in the appropriate unit described below by :
(a) Engaging in or threatening to engage in, lockouts, layoffs,
or other measures adversely affecting the earnings of our employ-
ees for the purpose of forcing said Local 967 or our employees
to eliminate any person or persons from any committee selected
by them to negotiate a contract with us.
(b) Discussing contract demands made upon us by Local 967,
or by any other labor organization representing our employees,
directly with our employees or make threats of economic or other'
reprisals against or promises of benefit to them to induce them
to withdraw their support of said demands and support our own
contract demands.
(c) Insisting, during contract negotiations with Local 967, or-
with any other labor organization representing our employees,
that the composition of the bargaining and/or grievance com--
560940J61-vol. 127-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mittee or committees should be negotiated if said labor organiza-
tion does not wish to negotiate on said subject.
(d) Insisting, as a condition of signing any contract with said
Local 967, or any other labor organization representing our
employees, that a provision or provisions be inserted in said con-
tract which would have the effect of limiting the right of said
labor organization or of the employees it represents to select the
persons who shall act on the bargaining and/or grievance com-
mittee or committees which will function under the terms of said
contract.
The appropriate unit is : All production, maintenance, boiler,
and engineroom employees working at our plants located at
White Hall, Illinois, excluding office clerks who perform no pro-
duction, maintenance, boiler, or engineroom work, superintend-
ents, assistant superintendents, technical employees, foremen,
inspectors, office employees, watchmen, professionals, guards, and
supervisors as defined in the Act.
WE WILL NOT engage in any like or related conduct which will
be in derogation of our duty to bargain in good faith with the
duly selected and exclusive collective-bargaining agent or agents
of our employees.
WE WILL NOT threaten our employees to shut down our plants
at White Hall, Illinois, or to lay them off to force them to remove
any person or persons selected by them or by Local 967 as their
collective-bargaining agent.
WE WILL NOT threaten our employees with economic or other
reprisals or make promises of benefit to them to induce them to
withdraw their support of contract demands made on their behalf
by Local 967, or any other labor organization representing them,
or to support contract demands being made or to be made by us
to said labor organization.
WE WILL NOT in any like or related manner, interfere with, re-
strain or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Local
967, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection. Our employees are free to
engage in or refrain from engaging in any or all of the above-
described activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as authorized in Section 8 (a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL make whole all of the following named employees for
AMERICAN VITRIFIED PRODUCTS COMPANY 707
loss of'pay they may have suffered as a result of their discrimina-
tory layoff from work on February 16, 1959.
1. A. J. Pinkerton
2. Lawrence Suttles
3. Delbert Hardwick
4. Francis Printy
5. Russell Castleberry
6. Eugene Gillis
7. William Bridges
8. Floyd Kessler
9. Paul Fry
10. Harold Snyder
11. Carrel Dunlap
12. Richard Pilkington
13. Howard Pilkington
14. Clarence Lister
15. Daniel Koenig
16. W. 'C. Fry
WE WILL rescind and eliminate from the collective-bargaining
contract we signed with Local 967 on June 12, 1959, and from the
stipulation attached to said contract executed by us on the same
day any and all provisions which have the effect of limiting the
right of Local 967 and of our employees to select the person or
persons who shall act as their representatives on the bargaining
and/or grievance committees established under the terms of said
contract.
AMERICAN VITRIFIED PRODUCTS COMPANY,
Employer.
Dated-------- -------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by Local 967, United Brick and Clay Workers of America,
AFL-CIO, hereinafter referred to as the Union or as Local 967, against American
Vitrified Products Company , hereinafter referred to as the Respondent , the General
Counsel issued a complaint in the above-entitled proceeding alleging that the
Respondent had engaged in unfair labor practices within the meaning of Section
8(a) (1), (3 ), and (5 ) and Section 2(6) and (7) of the National Labor Relations
Act, 61 Stat . 136, hereinafter referred to as the Act . The Respondent filed an answer
in which it denied the commission of the unfair labor practices alleged in the com-
plaint . On September 28, 29, and 30 , 1959, a hearing was held in Carrollton , Illinois,
before Vincent M. Rotolo, the duly designated Trial Examiner . During the hearing
the Respondent , without objection from the General Counsel 's representative, filed
an amended answer, incorporating certain oral amendments made to the original
answer filed by the Respondent which had been allowed by the Trial Examiner
at the beginning of the hearing . At the end of the hearing the General Counsel
argued orally on the record . The Respondent waived oral argument and reserved its
right to file a written brief with the Trial Examiner. After the close of the hearing,
the Respondent filed a brief with the Trial Examiner which he has carefully con-
sidered in -reaching his findings of fact and conclusions of law set forth below.
On the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
American Vitrified Products Company, a corporation of the State of New Jersey,
with its principal office and place of business at Cleveland , Ohio, is engaged in the
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufacture and sale of clay sewer pipe, flue linings, wall coping, drain tile pipe,
and concrete pipe. In connection with its manufacturing operations the Respondent
has operated and is operating various plants located in several States of the United
States, namely, Ohio, Indiana, Michigan, Wisconsin, California, Missouri, and
Illinois. During the 12-month period prior to the issuance of the complaint in this
proceeding the Respondent manufactured, sold, and shipped clay products from
its various plants mentioned above, which were valued at in excess of $50,000, to
points located outside the States where said products were manufactured. The
Respondent does not dispute that it is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 967, United Clay and Brick Workers of America, AFL-CIO, is a labor
organization representing employees of the Respondent at its White Hall, Illinois,
plant for collective-bargaining purposes.1
Issues and Contentions
The theory of the General Counsel's case, as set forth in the complaint and as
elaborated and clarified at the hearing, is, in substance, as follows:
Local 967, the Charging Party herein, is, and was at all times material herein, the
recognized majority representative of the production and maintenance employees
employed by the Respondent at its plants located at White Hall, Illinois; 2 that the
Respondent and Local 967 executed a contract on July 2, 1958, covering the wages,
hours, and work conditions of the employees working at its White Hall plants, to
expire on April 18, 1959; that said contract contained a provision for the automatic
renewal of the same for a period of 1 year from April 18, 1959, unless either party
gave at least 60 days' notice to the other that it desired to terminate or renegotiate
the contract; that on February 5, 1959, Local 967 gave written notice to the Re-
spondent that it wished to negotiate a new contract to take effect upon the expiration
of the existing contract on April 18, 1959; that shortly after the receipt of this
notice the Respondent learned that two members of the bargaining committee
selected by the local to negotiate the new contract, Charles B. Holmes and Irvin
Fisher, were not employees of the Respondent or representatives of the International
Union to which the local was affiliated; that the Respondent then demanded the
elimination of Holmes and Fisher from the Local's bargaining committee and
threatened to stop all activities at White Hall and abandon its plan for the construc-
tion and expansion of a modern sewer pipe production plant at White Hall if Holmes
and Fisher were not removed from said committee; and that 'upon the refusal or
failure of Local 967 to comply with its demand, it stopped all activities at White
Hall and laid off the 16 employees mentioned in the complaint to compel Local
967 to eliminate Holmes and Fisher from the bargaining committee.
The above-described conduct is alleged to constitute violations of Section 8(a) (1),
(3), and (5) of the Act.
The General Counsel further contends that when the Respondent failed, by its
shutdown, to force Holmes and Fisher off the bargaining committee, it decided to
negotiate the new contract with Holmes and Fisher participating in the negotiations
but that it then began a new course of coercive conduct, during the bargaining nego-
tiations, to force its employees to withdraw their support of the Union's demands and
support certain demands which it presented to the Union; that as part of this new
course of conduct it again resorted to threats and warnings, directed to its employees,
that it would not continue with its plans for the construction and operation of a mod-
ern sewer pipe producing plant at White Hall if they supported the Union's contract
i Local 967 is a single employer type of union local which has represented and represents
the employees who work and had worked at the clay pipe producing plants at White Hall,
Illinois. It Is affiliated with the United Brick and Clay Workers of America ,
AFL-CIO,
hereinafter referred to as the International, which assists and has assisted this local in
the negotiation of contracts and the handling of grievances and labor disputes with the
employers who have operated the White Hall plant of the Respondent . At the time the
events material herein occurred , Carl Copley , a member of Local 967, who was also a
representative of the International , was assigned to assist Local 967 in the negotiations
of contracts with the Respondent and in the handling of grievances and labor disputes
with it.
2 There is no dispute as to the appropriateness of this unit and that Local 967 is and
was the majority representative of the employees in the unit at all times material herein.
I so find and conclude.
AMERICAN VITRIFIED PRODUCTS COMPANY 709
demands; that during the course of the bargaining negotiations it constantly demanded
the inclusion of a clause in the new contract limiting the composition of the grievance
committee, which was to function under the new contract, to employees of the
Respondent, the only exception being representatives of the International; that Local
967 consistently rejected this proposal as not being a proper subject of collective
bargaining; that after all terms of the contract, except the composition of the griev-
ance committee had been agreed upon, the Respondent demanded and insisted, as
a condition of any contract being executed, that a clause be included in the new
contract which limited the composition of the grievance committee of Local 967
to employees of the Respondent on and after March 1960, the only exception being
representatives of the International; that Local 967 rejected this demand but the
Respondent continued to insist, stating it would not sign said contract without said
clause being included therein; that Local 967 signed the contract with said clause
inserted therein under protest and reserving its right to seek a determination of the
validity of said clause, under the circumstances, by the Labor Board.
By its answer, and statements of position at the hearing and in its brief, the
Respondent admits that it was opposed to the participation of Holmes and Fisher
on the bargaining committee of Local 967 because they were not employees of
the Respondent or representatives of the International but asserts that it never
threatened to shut down its activities or that it did shut down its activities at White
Hall to force the elimination of Holmes and Fisher from the Local's bargaining
committee. It further asserts that the shutdown of its activities at White Hall and
the layoff of the 16 employees mentioned in the complaint was motivated by legiti-
mate economic considerations which were not related to the issue of the participa-
tion of Holmes and Fisher in the Local's bargaining committee.
The Respondent further admits that it objected to certain demands made upon it
by the Union and that it explained its reasons for said objections to its employees but
denies that it ever made any threats against them or gave them any warnings or
promises of benefit to induce them to withdraw their support of the Union's demands;
the Respondent further admits that it insisted upon the inclusion of a clause in the
new contract requiring that the members of the Grievance Committee which was
to function under said contract after March 1960, be employees of the Respondent,
the only exception being representatives of the International, and that it made the
inclusion of said clause in the contract a condition of any contract being executed
with Local 967 but asserts that it was justified in doing so by the special circum-
stances arising out of its previous experience of dealing with members of Local 967
who were not employees of the Respondent. It further asserts that during the
bargaining negotiations for the new contract Local 967 made unlawful and improper
demands upon it and hence the Respondent's good faith in dealing with Local 967
is not an issue which could or should be resolved in these proceedings.
III. THE UNFAIR LABOR PRACTICES
A. The background
For many years prior to 1955 the White Hall Clay Pipe Company operated two
plants at White Hall, Illinois, where it produced clay sewer pipe and drain tile pipe 3
Sometime in 1955 or 1956 the White Hall Clay Pipe Company sold its two plants at
White Hall to the LaClede-Christy Company. The LaClede-Christy Company there-
after merged with the H K. Porter Co. Each of these companies had, after its pur-
chase of the plants, retained the original group of employees of the White Hall Clay
Pipe Company respecting the seniority rights they had acquired under the contracts
executed by Local 967 with that Company.
On November 16, 1957, the H. K. Porter Co. sold its two White Hall plants to the
Respondent. The Respondent then notified Local 967 that it was not assuming the
contract which Local 967 then had with the H. K. Porter Co. and that it would
negotiate a new contract with Local 967 at an appropriate time. Two or three days
after it took possession of the plants, the Respondent shut them down and laid off
all of the employees who had formerly worked with the H. K. Porter Co, with the
intention of severing their employment permanently because of the uncertainty of
operating the plants as they were, on a profitable basis. By late December 1957, the
s The two plants are separated by a distance of about one-half mile from one another.
At one plant sewer pipe was produced and at the other drain tile pipe. The two plants
were operated from one main office located at the sewer pipe producing plant Each plant
had a yard of its own where the pipe which was produced was stored until it was ready
for delivery to the customers,
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent decided to operate only one plant at White Hall to produce sewer pipe
and selected the site of the old drain tile plant for the production of such pipe. For
this purpose it decided to construct several new buildings at the site of the old drain
tile plant and to repair the existing kilns and other equipment at the plant so as to
produce sewer instead of drain tile pipe. In the meantime yard facilities of both
plants would be used to store and deliver sewer pipe manufactured at its Brazil,
Indiana, plant to customers located in the Illinois area. The sum of $400,000 was
appropriated for the construction and expansion of the sewer pipe plant at the site
of the old drain tile plant. In January 1958, the Respondent hired a group of 20
employees from the group of former H. K. Porter Co. employees to begin and carry
forward its plan of construction and expansion at the site of the old drain tile plant.
In June 1958, it decided to produce some drain tile pipe at the site of the old drain
tile plant while its construction and expansion program was in progress. For this
purpose it hired an additional 10 employees from the group of former employees of
the H. K. Porter Co. On July 2, 1958, it executed a new contract with Local 967
covering the new unit of 30 employees then on its payroll.4
Subsequent to the execution of the July 2, 1958, contract and during the latter
part of 1958, the Respondent hired some additional employees to produce drain tile
pipe and to perform yard and loading and unloading work at both plants in White
Hall. In the early part of January 1959 the Respondent had a work force of be-
tween 38 and 40 employees, about half of whom were engaged in the construction
of buildings and repairing equipment at the site of the old drain tile plant, while the
remainder were used to either produce drain tile pipe or to perform yard or load-
ing and unloading work at both plants. By that time, however, its inventory of
drain tile pipe had become so large that it decided to stop the production of such
pipe and to lay off the employees it had hired to produce this pipe. It indicated to
them, however, that they probably would be recalled when it started production of
sewer pipe at the site of the old drain tile plant. Accordingly 20 employees were
laid off, thus leaving a group of about 20 employees to carry forward its program of
construction and repair at the old drain tile plant .5
As indicated above the Respondent had about 20 employees on its payroll in
early February 1959. Six of these were then engaged in doing brick work and other
repairs on the eight dry kilns located at the site of the old drain tile plant. Another
six or seven were then engaged in the laying of new cement floors in front of the
tunnel dryers and at other places around the plant. A few others were engaged in
putting the finishing touches on a new building, known as the Macomber Building,
which was to be used as a dryer building for sewer pipe. Two or three others were
engaged in the installation of a sewer pipe extrusion machine in another new build-
ing which had been erected, known as the Butler Building. The remainder were as-
signed to do yard or loading and unloading work at either plant as the need arose.
4 Under this contract the Respondent and Local 967 agreed to establish new seniority
rights for the employees who had been hired by the Respondent during that year The
Respondent, however, agreed to consider the remaining employees in the group of former
employees of the H K. Porter Co for employment in the future whenever it needed addi-
tional workers and that it would take into account their former seniority standing with
the H. K. Porter Co. in making its selections from the group but it refused to commit
itself to give them preferential hiring rights over other applicants for employment.
Under this contract also the Respondent agreed to give its employees the same wage in-
crease which its chief competitor in the area, the Dickey Co., would give to its employees
when it negotiated a new contract in October 1958. Local 967 agreed then that if this
wage increase was given it would not demand any additional wage increase when the con-
tract expired on April 18, 1959 This latter agreement, however, was deleted from the
contract by consent of the parties in August 1958. Under the terms of this contract also
the Respondent agreed to recognize and deal with a grievance committee composed of
"members of Local 967" and any representative or representatives of the International.
Charles B Holmes, a member of Local 967, served on this committee during 1958 although
he was not an employee of the Respondent or a representative of the International.
5 Although a good portion of the construction and repair program had been completed
by this time, there remained a considerable amount of work to be done before the pro-
gram was completed This is indicated by the fact that at that time the Respondent had
expended only $230,000 of the approximately $400,000 it had appropriated for the pro-
gram. At this time also the Respondent was anxious to complete the construction and
expansion program so as to begin the production of sewer pipe as soon as possible.
AMERICAN VITRIFIED PRODUCTS COMPANY 711
B. Interference , restraint, and coercion
1. The events which occurred prior to commencement of the negotiations for the
new contract
As indicated above the contract of July 2, 1958 , between the Respondent and
Local 967 , provided for its automatic renewal on April 18, 1959 , unless either party
to the contract gave the other 60 days' notice of its intention to terminate or modify
the same. Acting under this provision of the contract , Local 967 gave notice to the
Respondent on February 5, 1959, that it desired to negotiate a new contract to cover
the wages, hours , and work conditions of the Respondent 's employees to take effect
after the expiration of the existing contract on April 18, 1959. On February 3, 1959,
Local 1967 had held its annual election of officers who were to hold office for a
period of 1 year beginning on March 3 , 1959. At this meeting also the bargaining
committee which was to negotiate the new contract with the Respondent was elected
by the members .6
Shortly after the union meeting of February 3, 1959, the Respondent 's production
manager at White Hall, Charles Ruggieri , learned that Holmes and Fisher were to
act as members of the Union 's bargaining committee for the new contract . Ruggieri
testified that he then told Carl Copley, the representative of the International, whose
home is located near the plant , that it was not proper for Holmes and Fisher to act
on the Union 's bargaining committee for the new contract since they were neither
employees of the Respondent nor representatives of the International. He further
testified that he asked Copley whether there was any way that Holmes and Fisher
could be replaced with employees of the Respondent on the bargaining committee
but that Copley informed him that they had been duly elected by the membership
of the Local and had the right to act on the bargaining committee . Ruggieri then
suggested that they could be asked to resign from the committee.
On the morning of February 12 , 1959, Richard Pilkington , the outgoing president
of Local 967 , who was then working for the Respondent as a bricklayer at the site
of the old drain tile plant, received a telephone call from Edgar L. Miller, the presi-
dent of the Respondent . Pilkington credibly testified that President Miller asked
him whether it was true that members of the Local who were not employees of the
Respondent had been elected to act on the bargaining committee . After Pilkington
responded in the affirmative Miller told him that there was no objection to a non-
employee of the Respondent who was a representative of the International but that
the Respondent would not deal with any other nonemployee in the negotiation of the
new contract . He further told Pilkington that if the Local did not take action to re-
move the nonemployees , who had been elected on the bargaining committee, the
Respondent would abandon its plans to set up a plant at White Hall and move the
equipment to its other plants. Pilkington asked him for a few days' grace to contact
the International office to see what could be done.?
9 A bylaw, adopted by Local 967 some years ago, provided that the president of the
Local should act as the chairman of the contract bargaining committee and also as the
chairman of the grievance committee after the contract was negotiated The bylaw also
provided that all other members of the bargaining committee should act as members of
the grievance committee . This bylaw was observed in the negotiation of all contracts with
the prior owners of the White Hall plants and in the handling of all grievances under
said contracts . At the February 3, 1959, union elections , Charles B Holmes was elected
president of the Local . Under the bylaw mentioned above he became the chairman of
the bargaining committee which was to negotiate the new contract with the Respondent.
Irvin Fisher was also elected to the bargaining committee . Both Holmes and Fisher were
not employees of the Respondent
7 Miller admitted at the hearing that he called Pilkington on the day mentioned and
that he then discussed the election of Holmes and Fisher on the Local 's bargaining com-
mittee He also admitted that he told Pilkington that he objected to the participation of
these employees in the negotiations for the new contract because they were not employees
of the Respondent . He denies , however, that he threatened to shut down the White Hall
plant if Holmes and Fisher were not eliminated from the bargaining committee He
further testified that it was Pilkington who suggested that the Respondent shut down the
plant to force the resignation of Holmes and Fisher from the bargaining committee.
Called as a rebuttal witness, Pilkington reaffirmed that Miller made the threat to shut
down the plant if Holmes and Fisher were not removed from the bargaining committee.
He denied that he ever suggested that the plant be shut down to force the resignation
of Holmes and Fisher . I credit Pilkington 's testimony that Miller threatened to shut
down the plant . This finding is supported by the events which occurred later in the day
on February 12, 1959.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pilkington testified further that , after finishing the conversation with him President
Edgar Miller requested that superintendent of plants, who was then at White Hall,
be called to the telephone . Upon the arrival of Plants' Superintendent Charles
Miller to the telephone , Pilkington left the office. Shortly thereafter Production
Manager Ruggieri instructed him to go to the "pug mill room" where a meeting
.of the employees was to be held . At the meeting, which was attended by the 20
employees then working for the Respondent , Plants' Superintendent Charles Miller
addressed the employees and told them that President Edgar Miller had spoken to
him over the telephone that morning about the election of some nonemployees on
the Local's bargaining committee . He asked them for the names of these employees.
After being told that they were Holmes and Fisher he told them that President
Miller was angry and upset over the election of these men to the bargaining com-
mittee and that he had told him he would rather close down the plant at White Hall
than deal with them in the negotiation of the new contract . He then warned that
he knew Miller well enough to know he would carryout his threat if something
-was not done to eliminate Holmes and Fisher from the bargaining committee. He
advised them to take some action quickly in the matter . Pilkington then addressed
-the employees and told them that President Miller had called him that morning and
had told him also that if Holmes and Fisher were not removed from the- bargaining
committee the Respondent would remove its plant from White Hall. He informed
-them that he planned to contact the International office on that day to seek advice
on what course they were to follow.
After the meeting Pilkington called the International office and consulted with
an officer there named Tracy who had assisted in the negotiation of the 1958 contract
with the Respondent. He explained the situation to Tracy who told him that he
would contact President Miller in Cleveland and would straighten out the whole
affair. Tracy instructed him to wait for his call that day on the results of his
conversation with Miller.
Pilkington waited for Tracy's call that day but none came . On the following
day he called the International office but could not locate Tracy or get any infor-
mation as to whether he had called President Miller about the Holmes and Fisher
matter. On Saturday, February 14, 1959, he called President Edgar Miller in Cleve-
land and asked him whether Tracy had contacted him about the Holmes and Fisher
matter. Miller told him Tracy had not called.
Production Manager Charles Ruggieri testified that on Monday morning, February
16, 1959, he received a telephone call from Plants' Superintendent Charles Miller
who instructed him to stop all activities at White Hall and to lay off as many em-
ployees as possible Ruggieri further testified that Miller first told him it was
because of the winter weather and then added that they had a large inventory of
drain tile pipe and finally he mentioned the breakdown of the sewer pipe extrusion
machine which had been tested a few days before.8
After receiving these instructions from Plants' Superintendent Miller, Ruggieri
called Union Representative Carl Copley at his home nearby the plant. Ruggieri
-first asked Copley whether it was not important to the employees that the Respondent
proceed with its plan to establish a sewer pipe producing plant at White Hall. When
Copley answered in the affirmative , Ruggieri told him that something would have
to be done on that day to remove Holmes and Fisher from the bargaining committee
as he had received instructions to shut down all activities at White Hall by the end
of the day. When Copley told him Holmes and Fisher could not be removed ex-
cept on charges of misconduct in office, Ruggieri suggested that they be asked to
resign . When Copley told him he would -not make such a request, Ruggieri told
him that the plant at White Hall was "done for." 9
2. The shutdown of February 16, 1959
At 4 p . m. on Monday , February 16 , 1959 , orders were issued to all the employees
at White Hall to stop whatever they were doing immediately. All but three of the
employees then working for the Respondent were told they were being laid off until
8 Ruggieri testified that he did not agree with Miller that the construction program
should be stopped nor the work of repairing the kilns but that Miller told him everything
had to be stopped Ruggieri admitted that the construction program and the work of
repairing the kilns could have proceeded while the broken part for the extrusion machine
was obtained
01 do not credit Ruggieri's denial that he had this conversation with Copley on Febru-
ary 16, 1959.
AMERICAN VITRIFIED PRODUCTS COMPANY 713
further notice . No explanation was given to them for the sudden order to stop all
activities to
On February 19, 1959, Local 967 sent the Respondent a list of the subjects it
wished to negotiate with the Respondent for the new contract and suggested March 5
or 6 as the starting date for the negotiations On February 23, 1959, the Respondent
recalled the six employees who had been working on the repair of the kilns.ii On
February 27, the Respondent recalled three of the employees that it had laid off
on February 16, 1959, to perform yard and loading work.12
On March 10 , 1959, the Respondent resumed its construction program at the
site of the old drain tile plant. It began to recall the employees who had been
performing this work and by March 13 they were all back on the job.13
When these inadequate and inconsistent explanations of the Respondent for the
layoff of the various groups of employees on February 16, 1959, are viewed in the
light of the threats of President Edgar Miller to Pilkington , the warnings of Plants'
10 The Respondent 's workweek ends on Friday of each week As indicated , the shutdown
occurred on a Monday The sudden nature of the action taken by the Respondent on
February 16, 1959 , is indicated by the testimony of some of the employees who were laid
off on that day. They all testified that they were told to stop whatever they were doing
even though the work they were then engaged in would have been completed in 1 or 2 hours
of overtime . This was a departure from the usual practice as overtime was usually
allowed where a job being done could be completed in a short time William T . Bridges, a
loader, testified that lie was engaged in the loading of a truck when he received the stop
order from his foreman , LeRoy James . Since the loading of the truck was almost finished
he asked James whether he could finish the job that day. James told him to wait while
he checked with the main office . When James returned he told him the orders were to
stop everything immediately "until this thing is settled ." I find that the " thing" re-
ferred to by James in his conversation with Bridges was the question of whether Holmes
and Fisher were to continue on the bargaining committee
"The Respondent contends that these employees had been laid off with the others on
February 16, 1959 , because certain burner parts which were to be installed in the re-
paired kilns had not yet been delivered to the Respondent and that it recalled these
employees when it received the parts on February 20, 1959 . However, the record shows
that three of the eight kilns still needed repairs before the burners could be installed
therein. The Respondent failed to explain why these employees could not have worked on
the repairs to the three kilns while waiting for the burners to be delivered. Ruggieri
testified that they could have done so . I therefore do not credit the Respondent's
explanation for the layoff of these employees on February 16, 1959.
"At the time of the layoff the Respondent had a crew of six or seven employees doing
this work at both plants Only three employees were retained to continue with this work
in spite of the fact that there was an abundance of this work to have warranted the re-
tention of the whole crew. The record of hours worked by the full crew in the month
following the recall of the three ' employees on February 27 is over three times that of
the hours they worked in the month preceding the layoff, indicating an accumulation
of this work during the layoff The Respondent has not given an explanation for the need
to lay off any of this group of employees on February 16, 1959
"The Respondent ' s explanation for the laying off of the construction program group
of employees is that it had an established policy not to keep construction employees on
the job while pipe was not being produced , and since the breakdown of the sewer pipe
machine interrupted its plans to start the production of sewer pipe in early February
1959 , it laid off the construction program employees until it went into sewer pipe produc-
tion I do not credit this explanation since it appears that the Respondent did not follow
this policy consistently either before or after the layoff During the first half of 1958
its construction program employees worked although no pipe was being then produced.
When it ceased producing drain tile pipe in early January 1959 , it did not lay off its
construction program employees . Finally it resumed its construction program and began
recalling this group of employees in early March 1959 , although it did not get into sewer
pipe production until the end of March Furthermore , J R. Bowen, the Respondent's
assistant superintendent of plants, indicated to this group of employees in a speech he
made to then on March 6, 1959, which is related below , that the construction program
had been stopped because of their "questionable attitude " Bowen testified that one of
the things he had in mind when he made this statement was the failure of the employees
to honor an alleged understanding they had made with the Respondent when the previous
contract was negotiated that only employees of the Respondent would be selected to
negotiate contracts with the Respondent. I find , therefore, that the layoff of this group
of employees was due to the Local's selection of Holmes and Fisher on the bargaining
committee and not for the reasons advanced by the Respondent
714 ` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Charles Miller to the employees on the morning of February 12,
1959, and the last-minute warning of Production Manager Ruggieri to Union Repre-
sentative Carl Copley on the morning of February 16, 1959, the real motive for
the shutdown becomes clear. It was a bold attempt on the part of the Respondent
to force the employees to take some action to remove Holmes and Fisher from the
bargaining committee before the bargaining negotiations commenced. That the
attempt failed of its purpose is of no materiality. The shutdown under these cir-
cumstances was a violation of Section 8(a)(1) and the layoff of the employees
which accompanied it was a violation of Section 8 (a) (3) of the Act.
It is well settled that an employer may not interfere with a union's statutory
privilege to select its own spokesmen, representatives, and negotiators. See Deena
Artware, Incorporated, 86 NLRB 732, enfd., 198 F. 2d 645 (C A. 6), cert. denied
345 U.S. 906; Iron Castings, Inc., 114 NLRB 739; Herbert L. Wade, Jerry Paxton and
G. F. McGee, Co-Partners, d/b/a Wade & Paxton, 96 NLRB 650; Roscoe Skipper,
Inc., 106 NLRB 1238. Since the Respondent attempted, by means of threats of
shutdown and by an actual shutdown and lockout of its employees, to force the union
members to eliminate Holmes and Fisher from the Union's bargaining committee, it
violated Section 8(a)(1) and (3) of the Act. Furthermore since these unfair labor
practices were committed by the Respondent in response to the Union's notice that
it wished to negotiate a new contract and were designed to limit the Union's power
and prestige in the forthcoming negotiations, the Respondent also violated Section
8(a)(1) and (5) of the Act. See Hensley Equipment Company, Inc., et al., 121
NLRB 556; Fant Milling Company, 117 NLRB 1277.
3. Further interference, restraint, and coercion during the bargaining negotiations
On March 5, 1959, the Respondent's negotiators headed by J. R. Bowen, its assistant
plants' superintendent, met with the bargaining committee of Local 976 to negotiate
the terms of the new contract. Although Bowen called the union representatives'
attention to the fact that Holmes and Fisher were not employees of the Respondent
,or representatives of the International, he made no objection to their participation
in the bargaining negotiations. After discussing two of the minor items on the list of
the Union's demands, Bowen announced that the other items, dealing with the
economic clauses of the new contract, were so exorbitant as not to form the basis of
bargaining. He announced that the Respondent would formulate its own proposals
on said items and submit them to the Union at some future date. The Union's
representatives agreed to this procedure. Before the meeting adjourned, Bowen was
asked whether it was true that he intended to meet with the employees on the following
'day. When Bowen answered in the affirmative, the union representatives accused him
,of attempting to destroy the Union. Bowen indignantly rejected the accusation stating
the Respondent had always followed the practice of discussing "matters of mutual
interest" with the employees and that it was going to do so on this occasion.
On the following day, March 6, Bowen addressed the Respondent's employees,
those who were then actually working as well as those on layoff status, a total of
about 30 in number. He began his address by reproaching them for permitting others
to formulate their contract demands, and telling them that if they were not interested
in formulating their own demands they should leave the Respondent's employment
and permit the Respondent to hire employees who would do so. Bowen then went
on to remind them that the Respondent had undertaken a big construction and
expansion program to establish a sewer pipe producing plant at White Hall on the
assurances given to the Respondent by a committee of the workers that they would
cooperate with the Respondent but that now the Respondent had stopped the program
and withdrawn the funds appropriated for that purpose because of their "question-
able attitude." 14
Bowen then told the employees that because of their attitude and the contract
demands of the Union on their behalf, the Respondent did not see any reason why
it should go ahead with its plans to produce sewer pipe at White Hall. One of the
employees present told him the employees should be given another chance and that
he believed they would cooperate if given such a chance. Bowen asked him if that
meant that the Respondent should resume its plans to operate the plant at White
14 Bowen explained at the hearing that he meant by this the failure of the employees to
honor certain oral understandings at the time the previous contract had been negotiated;
that the affairs of the Local, dealing with the contracts of the Respondent, would not be
dominated or controlled by the nonemployee members of the Local ; and also that they
would not ask for another wage increase when the contract expired if they were given a
wage increase in October 1958 when the Respondent's competitor, the Dickey Co. of
St. Louis, gave an increase to its employees
AMERICAN VITRIFIED PRODUCTS COMPANY 715
Hall. When the employees answered in the affirmative , he told them he would
convey their request to the management and let them know not later than March 9,
1959, what the decision would be. Before the meeting adjourned Bowen told the
employees that the Respondent intended to submit contract proposals of its own to
the Union sometime in April 1959 because the demands which the Union had
presented on their behalf were fantastic and completely unacceptable to the Respond-
ent. He advised them to discuss the matter among themselves and formulate pro-
posals which the Company could accept. He asked them to consider making the
new contract for a 3-year term instead of 1 year as the Union had proposed.15
It is an elementary principle of labor law that an employer may not deal directly
with his employees concerning their wages, hours, and work conditions after they
have selected a statutory bargaining agent to represent them for such a purpose. This
is especially so during negotiations being conducted by the bargaining agent with
the employer on behalf of the employees. The Respondent not only violated this
rule of good -faith bargaining but also made threats of reprisal and promises of
benefit to its employees to induce them to withdraw their support of the demands
which the Union had made on their behalf and to support certain proposals of its
own which it was going to present to the Union . A more flagrant deviation from
the requirement of good faith , imposed by the statute upon an employer who is
requested by the majority representative of his employees to negotiate a new contract,
cannot be imagined . I find therefore that the Respondent committed further viola-
tions of Section 8(a)(1) and (5) of the Act by discussing Local 967's contract
demands directly with its employees on March 6, 1959, and submitting at least one
contract proposal of its own to said employees for their consideration prior to sub-
mitting its proposals to the Union . I alsp find that it committed a violation of
Section 8(a)(1) and ( 5) of the Act by making threats of reprisal and promises of
benefit to its employees to induce them to withdraw their support of the Union's
demands and to support its own proposals which it intended to submit to the Union
thereafter. See Central Metallic Casket Co., 91 NLRB 572, 574-575; Ben Carson
Manufacturing Company, et al., 112 NLRB 323, 341; Medo Photo Supply Corpora-
tion v. N L.R.B., 321 U.S. 678, 684. I reject the contention of counsel for the
Respondent that the Respondent was justified in taking these actions because the
Union had allegedly violated certain oral agreements made with it in 1958 concern-
ing the making of an additional wage demand in 1959 and the elimination of
nonemployees from the Union 's bargaining and grievance committee.
C. The inclusion of the clause in the new contract limiting Local 967's right to
select its grievance committee
On April 28, 1959, Bowen met with the union bargaining committee and sub-
mitted the Respondent's contract proposals which included a proposal for a 3-year
contract with 1-cent per hour wage increase for each employee during the first year
of the contract and a 3-cent per hour increase for each of the succeeding years of
the contract . He also announced that the grievance committee which was to be
established under the contract be composed of employees of the Respondent, the
only exception being representatives of the International . The union representatives
rejected the wage and other economic proposals of the Respondent and informed
Bowen that the composition of the grievance committee could not be bargained as
it had already been selected by the Union. On May 12, 1959, the parties met again
and further discussions were held on the wage and other economic clauses of the
contract but no agreement was reached.
On May 26, 1959, the parties met again and with the assistance of a conciliator,
agreement was reached on all clauses of the contract except the composition of the
grievance committee . Bowen informed the union negotiators that President Miller
was determined that nonemployees , who were not representatives of the Interna-
tional , would not be recognized by the Respondent in the handling of grievances and
other matters arising under the terms of the new contract . The union negotiators
again informed him that the composition of the grievance committee was a concern
of the Union only and that its right to select the members of said committee was not
subject to contract limitation.
Bowen then told them that the inclusion of a clause in the contract limiting the
composition of the grievance committee to employees of the Respondent was a con-
dition of any contract being executed . The union negotiators then suggested that in
order to avoid a strike on that issue alone they would be willing to go along on the
15 These findings are based on the text of a report by Bowen to the Respondent of his
discussions with the employees on March 6 , 1959, which was introduced into evidence
at the hearing
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's proposal insofar as the rank-and -file members of the committee were
concerned but that the chairman of the committee should be selected by the Union
from any source it wished . Bowen told them he was sure President Miller would
reject this suggestion but that he would submit it to him. On the following day Presi-
dent Miller called Copley 's home and left a message for him to call the Respondent's
office in Cleveland as soon as possible. On May 28, 1959 , Copley called President
Miller who informed him that the purpose of his call on the previous day was to
clarify the Respondent 's proposal concerning the composition of the grievance
committee under the new contract . Miller explained that it was not the intention
to disqualify Holmes and Fisher from the grievance committee because he now
understood they could not be removed having been elected to serve for 1 year, but
that when the union elections were held again in February 1960 and 1961, only
members of the Local who were employees of the Respondent could be selected
Copley informd him that he was personally opposed to any clause limiting the
right of the union members to elect their own grievance committee being included
in the new contract but that he would submit his new suggestion to the members.
Miller then told him that if the members would not go along with his new sugges-
tion, they would have to "hit the bricks ," i.e., go out on strike. On that night,
Copley called a meeting of the members and submitted the new proposal of Miller
on the composition of the grievance committee . The membership voted on the
proposal and rejected it. On June 2, 1959 , Copley called President Miller and in-
formed him of the action of the membership on his proposal and told him that the
officers of the Union were powerless in the matter because, under the constitution
and bylaws of the Local, the officers could not sign a contract with such a clause
in it without the consent of the membership . Miller, however, was adamant and told
Copley that the lack of power of the officers to act on the matter without the
consent of the membership was their problem and not his.
On the night of June 2, 1959, Copley again called a meeting of the membership and
told them that Miller insisted upon the clause being included in the contract and that
no contract could be signed without it. He then suggested that the contract with the
offending clause in it be signed by the Union under protest and with written notice
to the Respondent that the matter would be submitted to the Labor Board for a
determination of their rights in the matter . The union membership voted to accept
this recommendation . Accordingly on the following day, June 3 , 1959 , Copley
signed a memorandum of agreement on the terms of the new contract , the formal
contract to be drawn by the Respondent and executed on June 12, 1959. On June 8,
1959 , Copley sent a registered letter to the Respondent informing it that the Union
would sign the contract with the clause limiting the Union 's right to select its gnev-
ance committee but that it would do so under protest and reserving its right to raise
the matter before the Labor Board . The contract was formally executed on June 12,
1959, without objection from the Respondent on the reservation made by the Union.
The contract provides in the section entitled "Grievances" (article IV) that a com-
mittee should be selected by the Union consisting of "employee members of Local
967" whose duty it was to assist it in carrying out the terms of the agreement and
take up all grievances and labor disputes with the Respondent . In the same section
the Respondent agreed to recognize and deal with a committee of from three to five
"employee members" of the Union to represent the employees in the bargaining unit
"for the purpose of collective bargaining ." It also agreed to recognize representa-
tives of the International for this purpose. In a stipulation attached to the contract
which was signed on the same day, it was agreed ( section 4 ) as follows:
The present nonemployee members of the committee shall continue in office
until the 1960 elections . After the 1960 elections , all committee members will
be employees of the American Vitrified Products Company, White Hall, Illinois
plant.
Concluding Findings
I have already found that the'Respondent violated Section 8(a) (1), (3 ), and (5)
of the Act when it attempted by means of threats of lockout and an actual lockout
of its employees , in the period prior to the commencement of bargaining negotiations,
to force Holmes and Fisher from the Union 's bargaining committee . I have also
found that the Respondent engaged in 'additional violations of Section 8(a) (1) and
(5) of the Act after the bargaining negotiations commenced when it discussed the
Union's contract demands directly with its employees and submitted at least one of
its contract proposals directly to said employees for their consideration before dis-
cussing counterproposals with the Union . I have also found that it violated Section
8 (a) (1) and ( 5) of the Act by making threats of reprisal and promises of benefit
to its employees , during the bargaining negotiations , to induce them to withdraw
their support of the Union 's contract demands and to support contract proposals it
AMERICAN VITRIFIED PRODUCTS COMPANY 717
was going to submit to the Union. The only question remaining to be decided is
whether the Respondent violated Section 8(a) (1) and (5) of the Act by insisting
upon the inclusion of provisions and stipulations in the new contract which were
designed to limit the Union's statutory right to select the members of its bargaining
and grievance committee under the new contract.
In the early Clayton & Lambert Manufacturing Company case (34 NLRB 502),
the Board held that it is not a violation of the Act for an employer and a union to
agree upon the inclusion of a clause in a contract which has the effect of limiting the
union's right to determine the size and composition of the employees "shop com-
mittee" which will handle individual employee grievances. The Board found that
the union and the employer had reached the agreement concerning the size and
composition of the shop committee through genuine collective bargaining. In the
later The Oliver Corporation case (74 NLRB 483), the Board held, however, that it
is contrary to the policy of the Act for an employer and a union to agree upon the
inclusion of a clause in a contract which has the effect of limiting the employees'
statutory right to select a "bargaining committee" to represent them in the discus-
sion of general questions and problems dealing with their wages, hours, and work
conditions, which arise during the term of the contract as distinguished from a
"grievance committee" which will only handle their individual grievances.
In the Bethlehem Steel Company, Shipbuilding Division., et al. case (89 NLRB
341), the Board held that a clause, which was included in the contract at the
employer's insistence, that had the effect of preventing the union's shop steward from
being present at the initial discussions of individual grievances unless the employee
or employees involved elected to have the shop steward present, was invalid as being
in derogation of the union's status as the statutory bargaining agent of the employees
for the purposes of collective bargaining with respect to their wages, hours, and
work conditions and for the adjustment of their grievances.
In the Shell Oil Company and Shell Chemical Corporation case (93 NLRB 161),
the Board laid down the basic rule concerning the inclusion of clauses limiting a
union's right to determine the size and composition of a "grievance committee" which
is established under the terms of the contract to handle individual employee griev-
ances during the term of the contract. The Board laid down the rule on this subject
at the very beginning of its decision as follows:
Under the Act, a union , as the only designated representative of its employees,
has a right to select the class of persons, whether they be employees or non-
employees, to negotiate with the employer as to grievances. An employer may
not, without violating the Act, insist, as a condition of signing a collective-
bargaining agreement, that the union surrender its right to be represented by a
particular class in bargaining as to grievances.
The Board went on, however, in the same decision, to point out that while a union
may not be compelled to bargain concerning the size or composition of a grievance
committee, it saw no reason why the union may not waive that right and if an
agreement on that subject is reached, through genuine collective bargaining between
the parties, the agreement may be included in the contract without the parties incur-
ring a violation of the Act. The Board warned, however, that even if the union
chooses to bargain concerning the composition of the grievance committee, the em-
ployer may not, without violating the Act, insist upon the inclusion of the limiting
clause in the contract, as a condition of the contract being signed, after all other
terms of the contract have been agreed upon and an impasse has been reached on
the issue of the composition of the grievance committee.
Applying the principles established by the Board in the above cases to the facts
in the instant case, I have no difficulty in concluding that the Respondent's conduct
in the matter of the inclusion of the clauses and stipulations in the contract of
June 12, 1959, dealing with the composition of the Union's bargaining and grievance
committee, was a violation of Section 8(a)(1) and (5) of the Act. I have reached
this conclusion for several reasons, any one of which, in my opinion, would be
sufficient to establish a violation of Section 8(a)(1) and (5) of the Act on the
part of the Respondent on this aspect of the case only. In the first place the
Respondent sought and is seeking, by the inclusion of the provisions in question in
the contract of June 12, 1959, not only to limit the Union's right to select the
grievance committee which would handle individual grievances of, the employees
during the term of the new contract but to also limit the Union's right to select its
bargaining committee which would handle questions of general concern to all em-
ployees in the bargaining unit such as the negotiation and settlement of labor
disputes over the meaning and application of the terms of the contract, the negotia-
tions of wage rates for new categories of workers created during the,term of the
contract, and other general subjects of collective bargaining.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is clear from the plain language which the Respondent included in the
memorandum agreement signed on June 3, 1959, and from the language it included
in article IV of the contract itself.
Secondly, the Respondent chose a method to accomplish the limitation of the
Union's right to select its grievance and bargaining committees, which is plainly
repugnant to the policies of the Act. A reading of section 4 of the stipulation 'at-
tached to the contract discloses that the Respondent has, in effect, assumed the
power, by contract, not only to limit the Union's right to select its grievance and
bargaining committee but the manner in which it is to be done internally in the
Union. Thus the stipulation provides that the existing nonemployee members of
the committee shall continue in office until the 1960 elections but that after the 1960
elections, all the committee members would have to be employees of the Respondent.
What, in effect, the Respondent is requiring the Union to do is to limit the candidates
for election to the committee at the annual elections of the Union held in February
1960 and 1961 to employees of the Respondent. - Since the Respondent was per-
fectly aware when it drafted this stipulation that, according to the bylaws of the
Union, the chairman of the grievance and bargaining committee is a member of the
Union who is elected president of the Local at the annual union elections of officers,
it is, in effect, requiring the Union to elect its president from among the members of
the Local who are employees of the Respondent at the time of the election. To
carry out this stipulation of the contract the Union will have to either rescind its
bylaw which makes the president elect the chairman of the bargaining committee or
adopt another bylaw which will limit the choice of the president from among the
members of the Local who are employees of the Respondent. This was the very
reason why the union representatives were so opposed to the inclusion of such a
clause or stipulation in the contract. In spite of Copley's explanation to the Re-
spondent's president, Edgar Miller, that this was the necessary consequence of the
clause being included in the contract, he nevertheless insisted upon its inclusion in
the contract, as a condition of any contract being signed at all. A more flagrant at-
tempt to control the internal affairs of a union can hardly be imagined.
But even were I to hold that the clauses in question were limitations only on the
Union's right to select a committee to handle individual grievances and that the
procedure adopted by the Respondent to accomplish this purpose was not repugnant
to the policies of the Act, I would still hold the inclusion of the clauses in question
in the contract to be a violation of the Act on the part of the Respondent. It is clear
to me, and I find, that the Union never accepted, in principle, the Respondent's right
to limit, by contract, its selection of the grievance and bargaining committees, which
would function during the term of the contract. I find that it never conceded that
its right to do so under the statute was.a proper subject of collective bargaining. I
make this finding in spite of the fact that at the bargaining session of May 26, 1959,
after all the clauses of the contract except the composition of the bargaining and
grievance committees had been agreed upon, Copley proposed that the rank-and-file
members of the committee mentioned be required to be employees of the Respondent
but that the Union be left free to select the chairman of the committee. Copley
made this proposal after Bowen made it clear that President Miller would not sign
the contract without a clause limiting the Union's right to select the grievance and
bargaining committee from among the Respondent's employees. But even were I
to find that the Union voluntarily chose to bargain on the composition of the griev-
ance and bargaining committee on and after May 26, 1959, 1 would still find that
the Respondent violated the Act because President Edgar Miller's final proposal,
made on May 28, 1959, that the limitation become operative beginning with March
1960 was stated by him to be a condition which had to be accepted by the members
of the Local or that they would have to "hit the bricks," i.e., go out on a strike for a
contract as the only alternative. At this point the bargaining on the subject, if there
was any, had reached an impasse because the membership voted to reject the Re-
spondent's new proposal that very night and Copley so informed Miller on June 2,
1959. In spite of Copley's appeal that Miller recede from his position to avoid dif-
ficulties internally in the Union, Miller was adamant. It was after this that Copley
conceived the idea of signing the contract with the rejected clause included therein
under protest and with notice to the Respondent that the validity of the clause would
be attacked before the Labor Board. Under these circumstances I cannot find that
the inclusion of the clause in question was the result of genuine collective bargain-
ing between the parties. Finally, I am also compelled to conclude that the Re-
spondent acted in bad faith in demanding the inclusion of the clause in question in
the contract since I find it to be a continuation of the course of bad-faith bargaining
which it adopted shortly after it received notice from the Union that it wished to
negotiate a new contract.
AMERICAN VITRIFIED PRODUCTS COMPANY 719
Viewing the Respondent's conduct in its totality, from the time it received the
notice to negotiate the new contract on February 5, 1959, to the date of the execu-
tion of the new contract on June 12, 1959, I have no difficulty in finding that it acted
in bad faith throughout said period and that it did not comply with the good-faith
collective-bargaining standard imposed upon it by the provisions of Section 8(d)
of the Act.
I therefore conclude that the inclusion of the provisions in question in the contract
of June 12, 1959, constituted not only additional evidence of its bad-faith bargaining.
with the Union throughout the negotiations but also that it constitutes a separate and
independent violation of Section 8(a)(1) and (5) of the Act. Cf. N.L.R B. v.
Wooster Division of Borg-Warner Corporation, 356 U.S. 342, N.L R.B. v. American
National Insurance Co., 343 U.S. 395.16
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, having occurred in
connection with the operations of the Respondent set forth above in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce.
V. THE REMEDY
I have found that the Respondent engaged in various acts of interference, re-
straint, and coercion against its employees. I shall recommend that it cease and
desist from said activities and any other activities of a like or related nature.
I have also found that the Respondent unlawfully laid off the employees listed in
Appendix A on February 16, 1959. Since it appears that the Respondent had by
March 13, 1959, recalled all of said employees to work and that they were rein-
stated to their former or similar positions of employment, I shall not recommend the
reinstatement of said employees. However, I shall recommend that the Respondent
make whole each of said employees, for any loss he may have suffered, by reason
of his unlawful layoff during the period between February 16 and March 13, 1959,
from the date of his layoff to the date of his reinstatement, by payment to him of a
sum of money equal to that which he would normally have earned as wages during
such period, less his net earnings during that period, such sums to be computed in
accordance with the formula set forth by the Board in F. W. Woolworth Company,
90 NLRB 289.
I shall also recommend that the Respondent make available, upon request of
the Board or its agents, for examination and copying, all payroll and other records
necessary to enable the Board to analyze and compute the amounts of backpay due
to said employees.
I have also found that the Respondent failed or refused to bargain in good faith
in several respects with Local 967, the recognized majority representative of its
employees working at its White Hall, Illinois, plants, in the negotiation of the,
contract of June 12, 1959. I shall recommend that, in addition to ordering the
Respondent to bargain in good faith in the future with Local 967 or any other labor
organization representing its employees at White Hall, Illinois, in the negotiation
of contracts, the Respondent also be ordered to rescind and eliminate from the
collective-bargaining contract it executed with Local 967 on June 12, 1959, any and
all provisions or stipulations which have the effect of limiting the right of said Local
967 and its members to select persons, who are neither employees of the Respondent
nor representatives of the International of said Local to act on the bargaining or
grievance committee or committees which shall function under the terms of said
contract. All that is required of the Respondent by this recommended remedy is
10I reject the contentions of counsel for the Respondent that it was justified in taking
the measures It did against the Union and its members because of the breach of alleged
oral understandings reached with the Union in 1958 concerning the wage demands of
the Union under the new contract and the control of the affairs of the Local by non-
employees of the Respondent. I do not find it necessary to decide whether such under-
standings actually existed because they would, in any event, not be a justification for the
unlawful measures taken by the Respondent against the Union and its members I like-
wise reject the further contention of Respondent's counsel that the Respondent cannot be-
held responsible for bad-faith bargaining because the Union itself engaged in bad bargain-
ing by making unlawful and improper demands upon it during the bargaining negotiations
I do not find evidence in the record to support this contention of the Respondent. On the-
contrary, I find that the Union bargained in good faith throughout the negotiations.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it recognize and deal with persons selected by Local 967 and its members who
are neither employees of the Respondent nor representatives of the International
and accord them the same standing as it has given the other representatives of the
Local 967's bargaining and grievance committee or committees in the negotiation of
questions arising under the terms of the contract or in the adjustment of grievances
presented to it. It is not intended , by this recommendation , that any of the Re-
spondent 's obligations , either under the statute or under its existing contract with
Local 967, shall be altered or modified in any respect.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
the Act.
2. Local 967 is a labor organization within the meaning of the Act.
3. All production, maintenance , boiler, and engineroom employees working at
the Respondent 's plants located at White Hall, Illinois , excluding office clerks who
perform no production , maintenance , boiler, or engineroom work, superintendents,
assistant superintendents , technical employees , foremen, inspectors , office employees,
watchmen , professionals , guards, and supervisors as defined in Section 2(11) of the
Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Local 967 was, on February 5, 1959, and at all times since has been, the
recognized exclusive representative of all employees in the aforesaid unit for the
purposes of the collective bargaining within the meaning of Section 9(a) of the Act.
5. By unlawfully locking out or laying off the 16 employees listed in Appendix A
to compel Local 967 and its members to remove certain designated representatives
from said Local's bargaining committee , the Respondent discriminated against its
employees in regard to their hire, tenure , terms, and conditions of employment to
discourage membership in or activities on behalf of said Local and it thereby engaged
in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
6. By locking out and laying off the employees listed in Appendix A for the
purpose of compelling Local 967 and its members to remove certain designated
representatives from said Local's bargaining committee ; by dealing directly with its
employees concerning their wages, hours, and work conditions while bargaining
negotiations were in progress ; by making threats of economic and other reprisals
and promises of benefit to the employees in the aforesaid bargaining unit for the
purpose of forcing said employees to withdraw their support of certain bargaining
demands made on their behalf by the Union and to support certain proposals made
or to be made by it to said Union; by insisting , against the will and desire of the
Union, during the bargaining negotiations , that the composition of the grievance
and/or bargaining committee or committees which would function under the terms
of said contract be negotiated ; by insisting , as a condition of any contract being
executed , that a provision or provisions be included in the contract being negotiated
which would compel the Union and the employees it represented to select the mem-
bers of the bargaining and/or grievance committee or committees which would
function under said contract from among employees of the Respondent , the only
exception being representatives of the International of said Union ; and by inserting
said provisions in the contract after notice from the Union that it would sign the
contract with said provisions contained therein under protest , the Respondent has
impeded and impaired collective bargaining with the Union and has acted in a
manner inconsistent with good-faith bargaining and by reason thereof has failed
to observe the requirement of good-faith bargaining imposed upon it by Section 8(d)
of the Act and thereby it engaged in unfair labor practices within the meaning of
Section 8(a) (5) of the Act
7. By threatening to lock out and lay off its employees and by locking them out
and laying them off, to compel them and their bargaining agent to eliminate certain
persons designated by them to act on their bargaining committee for a new contract;
by making threats of economic and other reprisals against and promises of benefit
to its employees to induce them to withdraw their support of their bargaining agent's
demands and to support its own contract proposals; and by forcing its employees to
accept a contract which contains limitations on their right and that of their bar-
gaining agent to select the persons who are to represent them in the negotiation of
any questions arising under the contract and in the adjustment of their grievances
during the term of said contract , the Respondent interfered with, restrained, and
GINO IANNI CONSTRUCTION CO., INC. 721
coerced and is interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act and thereby it engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication. ]
Gino lanni Construction Co., Inc. and Hi Varney
Gino lanni Construction Co., Inc. and William Varney. Cases
Nos. 7-CA-1971 and 7-CA-1979. May 11, 1960
DECISION AND ORDER
On June 10, 1959, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the alleged unfair labor practices and
recommending that the complaint herein be dismissed, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter, the
General Counsel filed exceptions to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, to the extent consistent with the
footnote below.'
[The Board dismissed the complaint.]
1 The General Counsel excepted to the failure of the Trial Examiner to reopen the
record to allow the introduction of evidence bearing upon commerce and certain issues on
the merits . The General Counsel had prior to the hearing subpenaed all the Respondent's
payroll and commerce records, but it was discovered at the hearing that the Respondent
had failed to produce sufficient information for the parties to agree to a stipulation on
commerce . However, it was agreed by all the parties that counsel for the Respondent
would make available after the hearing the necessary records and attempt to arrive at a
stipulation with the General Counsel for the purpose of jurisdiction . With this under-
standing, hearing on the merits of the case proceeded. It was apparently also agreed by
the parties that the General Counsel should have an opportunity to examine the Respond-
ent's "time book" in order to determine if it had any bearing upon certain testimony of
the Respondent given at the hearing. The Trial Examiner in closing the hearing on
March 25 , 1959, referred to the agreements of counsel by stating that it was his under-
standing that the case was complete except for the parties "getting together on a stipula-
tion on the jurisdictional facts , and except for a look at the time book ." The Trial
Examiner also granted the parties 30 days from the date they arrived at a stipulation an
commerce to file briefs. On May 29, 1959, counsel for the Respondent notified the Trial
Examiner he was unable to comply with the agreement reached at the hearing, and there-
fore requested permission to withdraw from the case. In view thereof, on June 1, 1959,
the General Counsel requested the Trial Examiner to reopen the hearing. On June 10,
1959, the Trial Examiner issued his Intermediate Report finding Board jurisdiction on the
basis of Tropicana Products, Inc., 122 NLRB 121, but upon considering the merits recom-
127 NLRB No. 91.
560940-61-vol. 127-47