American Welding & Industrial Sales, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1974

214 N.L.R.B. 1086 (N.L.R.B. 1974)

1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Welding & Industrial Sales, Inc. and Team-
sters Automotive Workers Local 495 , International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Cases 31-CA-4039
and 31-CA-4215
November 20, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On June 30, 1974, Administrative Law Judge Da-
vid G. Heilbrun issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
1974, with an order consolidating cases. The amended
complaint alleges that American Welding & Industrial
Sales, Inc., herein called Respondent, violated Section
8(a)(1), (3), and (5) of the Act by written communications
threatening employees with loss of employment because of
strike participation, by failure and refusal to reinstate van-
ous striking employees to their former positions of employ-
ment, and by manifesting a refusal to bargain collectively
with Teamsters Automotive Workers Local 495, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the Union,
through dilatory tactics, bad-faith contract proposals, sur-
face bargaining devoid of real intention to achieve agree-
ment, and claiming inability to pay economic demands
without furnishing supporting factual data on request.
Upon the entire record in this case, including my obser-
vation of the witnesses, and upon consideration of the brief
filed by General Counsel, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent, a corporation, engages in the wholesale dis-
tribution of welding and industrial supplies at North Hol-
lywood and other southern California locations. It annual-
ly purchases goods valued in excess of $50,000 for use in
such operations and receives these goods directly from sup-
pliers located outside the State of California. I find, as Re-
spondent admits, that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts and Discussion
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge it is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 In the absence of any exception to the "Unauthorized distribution of
literature" prohibition in sec 13 03-41 of the Respondent's proposal, the
inclusion of which the record shows the Respondent insisted upon, Member
Jenkins does not pass on whether or not the prohibition constitutes a viola-
tion of Sec 8(a)(5) and (1) of the Act
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at Los Angeles, California, on April 9, 10,
and 11, 1974, based on charges filed October 11, 1973, and
January 23, 1974, the second of which was amended Feb-
ruary 5, 1974, and February 12, 1974, and complaint issued
November 30, 1973, which was amended February 12,
On June 18, 1973,1 the Union was certified as exclusive
collective-bargaining representative for included employ-
ees at Respondent's four described locations. Opening of
negotiations was promptly requested by Karl H. Ullman,
union secretary-treasurer, following which he exchanged
correspondence with Erwin Lerten, a practicing attorney
authorized by Respondent to conduct collective-bargain-
ing negotiations. In the course of this exchange Ullman
submitted the Union's contract proposal and a first meet-
ing was scheduled for July 25.
Joseph Henderson and Wallace Patton appeared for the
Union at Lerten's office on July 25 and, after waiting ap-
proximately 15 minutes beyond a scheduled 10 a.m. start-
ing time, conferred with Lerten and Richard Owen,
Respondent's general manager.2 The union proposal, a 15-
page document of 26 articles, was a primary basis of dis-
cussion although the parties exchanged descriptions of
All dates hereafter are in 1973, unless otherwise indicated
2
Owen was also present as a participant for Respondent at all future
bargaining sessions between the parties, each of which was similarly held in
Lerten's office
214 NLRB No. 149
AMERICAN WELDING & INDUSTRIAL SALES, INC 1087
their respective group health insurance plans. Lerten com-
mented on the lack of a preamble tailored to the actual
identity of the parties and departure from certified bar-
gaining unit language in the recognition clause. This and
related discussion consumed approximately 30 minutes, af-
ter which the meeting ended with Lerten stating he would
prepare a counterproposal and the endeavor would take at
least a week.3
By letter dated August 8, Lerten advised Ullman that a
draft proposal was being reviewed by his client. This pro-
posal, released in duplicate to Ullman by Lerten's letter
dated August 15, was a 29-page draft of 34 sections. Lerten
and Ullman arranged a meeting for August 31 at which
Ullman appeared alone only to wait at least 15 minutes
beyond the scheduled 2:30 p.m. starting time. Discussion
commenced with Ullman stating his comparison of
Respondent's proposals showed they contained no eco-
nomic improvements and even eliminated benefits then in
effect. Lerten stated that existing wages and benefits were
high enough to obtain personnel for Respondent's semis-
killed jobs but that "another look" might be taken at his
economic offer should the freeze on price ceilings be lifted.
In discussing the point further, Lerten added that Respon-
dent 4 was not disposed to increase wages when its ceiling
prices were frozen and did not feel it was necessary to do
so.5 This meeting of approximately 30 minutes' duration
ended shortly thereafter. Ullman recalls remarking at the
end that he guessed "[T]here is nothing else we can talk
about, if that is the company's position," while Lerten re-
calls Ullman's final remark to cover a need for wage in-
creases and intention to submit the existing counterpropo-
sal for membership consideration
Ullman returned to his office, informed colleague Thom-
as O'Leary6 of Respondent's position, and requested the
latter seek production of a financial statement via assis-
tance from the Union's legal department. As a result, Ler-
ten received a letter dated September 4 from Union Attor-
ney Paul Crost requesting production of Respondent's
"books and records" for the purpose of substantiating a
"claim of inability to grant wage increases." Lerten replied
to Crost by letter dated September 6 with a refusal to so
produce, writing in negation that Respondent "has at no
time made a claim that it is unable to grant wage increas-
es.,
Approximately a week before November 19, Ullman
telephoned Lerten's office and arranged a third meeting for
3 Lerten is credited over union witnesses as to this time estimate
4 Tr p 415,1 7, is corrected by substituting "company" for "union "
5 Ullman testified that Lerten made a claim of inability to pay by uttering,
in the context of dialogue concerning Respondent's giant parent corpora-
tion, Gulf and Western, "[W]e aren't making any money at American Weld-
ing So we are not prepared to give any economic increases " Lerten denied
Gulf and Western was even mentioned until the next meeting and Owen
does not, contrary to the implication of General Counsel's brief, contradict
Lerten on the point Ullman's quoted testimony varies from an unrefreshed
version while his notes of the meeting and an original affidavit in the case
allude only to Lerten assuming a "won't improve" posture as to wages
Consistency in Ullman's testimony is found only in a supplemental affidavit
executed November 1 Lerten's version is substantially more credible and I
accept it as fact
6 O'Leary is a special organizer and business agent for the Union whose
truncated testimony begins at p 381 of the transcript The index of tran-
script volume III is corrected to show this witness' name
that date. Ullman and Patton appeared for the Union and,
after waiting at least 10 minutes beyond the scheduled 10
a.m. starting time, began the session. The proposal and
counterproposal of the parties were as yet unchanged from
the form in which they were orginially furnished in July
and August, respectively. The Union had proposed a typi-
cal union-shop provision to cover present and future em-
ployees, checkoff rights, and detailed successorship lan-
guage. Articles entitled "Retained Rights," "Maintenance
of Standards," "Other Labor Disputes," and "Union Rep-
resentative-Union Steward" read, respectively:
It is mutually agreed that the Employer reserves the
right to discharge any employee for sufficient and
proper cause; provided, however, that no employee be
discharged or discriminated against for upholding
Union principles and taking part in normal Union ac-
tivities. The Employer also agrees that prior to the dis-
charging of any employee he will consult with the
Union Representative first.
The Employer agrees that all conditions of employ-
ment relating to wages, hours of work, and general
working conditions shall be maintained at no less than
the highest standards in effect at the time of the sign-
ing of this Agreement, and the conditions of employ-
ment shall be improved wherever specific provisions
for improvement are made elsewhere in this Agree-
ment.
I The Union agrees that it will not require its mem-
bers to recognize any labor dispute which has not
been approved by the Joint Council of Teamsters lo-
cally or in the area in which the strike occurs.
2. The Employer will not require employees coming
under the terms of this Agreement to handle in any
manner goods , products or merchandise sold, manu-
factured or handled by persons , firms or corporations
who are on the unfair list of the Joint Council of
Teamsters in this area, and the Employer agrees that
he will not require such employees to go through pick-
et lines sanctioned by the Joint Council of Teamsters
in this area , and will in no manner penalize any em-
ployee who acts in accordance with the rights set forth
in this provision.
3. The Employer further agrees that the rights confer-
red herein are specifically consented to and that the
exercising of such rights shall not be considered a
breach of contract.
s
The Business Representative or qualified represen-
tative of the Union, and the Union Stewards so desig-
nated by the Union, shall be permitted to talk with the
employees on Company property for the purpose of
ascertaining whether or not this Agreement is being
observed by the parties hereto, or to assist in adjusting
grievances. This privilege shall be exercised so that no
time is lost to the Employer.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An article entitled "Warning Notices, Grievance and Arbi-
tration Procedure" recited the Company's right to dis-
charge "any employee for cause" with respect to which two
warning notices shall have first been given with differences
between the parties concerning such or "any provision" of
the agreement to be submitted to final and binding deci-
sion by a board of arbitrators, the third impartial member
of which shall act as chairman and be appointed through
Federal Mediation and Conciliation Service auspices upon
failure of the representatives of the parties to agree upon a
direct selection. Eleven holidays were proposed with elabo-
rative language on the subject, vacation entitlement based
on continuous service was proposed with appropriate pro-
tective language, sick leave, leave of absence, funeral leave,
and jury duty were the subject of separate articles, while
seniority was treated extensively with seniority preference
controlling as to promotions when occupational qualifica-
tions showed no "distinguishable difference." The subjects
of posting of notices, job classifications and wage rates,
temporary assignment, hours of work, overtime, guaran-
teed hours, job bidding, and safety and health provisions
were treated, a cost of living formula plus four benefit
plans each described separately in appendices were pro-
posed and language concerning the term of agreement was
structured, with effective dates and deadline for reopener
notice to be determined.
Respondent had proposed a recognition clause that mir-
rored the certification, pa simple open shop, to forbid car-
rying on of "[U]nion business, collection of dues, solicita-
tion of membership, or drives for membership . . . during
working hours on the employer's premises at any time," to
accommodate desired operational interchangeability by
permitting temporary transfer of employees for a continu-
ous period up to I week without wage rate change, a 3-
month probationary period for new employees, a definition
of senionty with listed reasons for its loss and additional
protective language, the privilege of adopting "[A]ny com-
pany rules which are not in direct conflict with the provi-
sions of this agreement," a minimum wage rate schedule
reflecting those already in effect, overtime pay in excess of
40 hours a week, 6 paid holidays with limiting and qualify-
ing language excluding pay or time off for holidays falling
on a Saturday, the existing vacation formula with limiting
and forfeiture language, continuation of Respondent's
group health and life insurance with dependent coverage to
be paid by employees, an elaborate provision forbidding
strike, lockout, or "boycotts," recognition of the entitle-
ment of nonbargaining unit personnel to perform bargain-
ing unit work, a separability clause, a legalistic "waiver and
7 The Culver City location was inadvertently omitted A second inadver-
tence appears in Sec 16 02(a ) of Respondent's proposal in which reference
to "Paragraph 15 06" must, from context, mean 15 07 Noting that Art 1, 2,
of the Union's proposal contains the garbled phrase "[E]xecutes a contrac-
tor of transaction " and that its arbitration clause presumes to call on
the Federal Mediation and Conciliation Service to select an arbitrator with-
in 3 days although that agency reports a fiscal year 1973 capacity of 15 7
days average for such service and striving for further reduction from a
current 6 5 days , (News and Background Information , 86 LRRM 58), I
attach no significance to such minor errors in preparation of documents of
this length and given the time element involved Comment is occasioned
since General Counsel briefed the point
notice" clause and language structured for the term of the
agreement , and mechanics of reopener notice.
Section 5 of Respondent's proposal was entitled "Rights
of Management" and carried the following introductory
language:
Except as otherwise specifically provided in this agree-
ment, the employer has the sole and exclusive right to
exercise all the rights or functions of management,
and the exercise of any such rights or functions shall
not be subject to the grievance or arbitration provi-
sions of this agreement.
Without limiting the generally [sic] of the foregoing, as
used herein, the term "Rights of Management" in-
cludes:
Following this listing of 25 specified rights appeared with
language that would close the subject by deeming the enu-
meration of "[M]anagement prerogatives listed above" not
exclude "other management prerogatives not specifically
enumerated." The rights enumerated dealt typically with
business policy, product distribution, and employee utiliza-
tion.9
Section 13 of Respondent's proposal, entitled "Disci-
pline and Discharge," provided, in essence, through intro-
ductory language that regular, full-time employees were
not to be disciplined or discharged without just cause and,
while Respondent would reserve sole discretion to impose
a lesser penalty, an enumeration of reasons were each to be
deemed just cause for immediate discharge. There followed
49 listed types of typical industrial misconduct by employ-
ees covering broad areas of neglect, dishonesty, insubordi-
nation, or personal dereliction. Number 5 read:
Engaging in a strike, picketing, sabotage, or slow-
down, or failure or refusal to cross a picket line at the
premises of the employer, or at the premises of any of
the employer's customers or suppliers in connection
with their work.
Number 41 read:
Unauthorized distribution of literature, written or
printed matter on the employer's premises, or solicita-
tion in any manner on the employer's premises during
working hours.
Working hours does not include before or after
8 Other subjects in Respondent's proposal which did not have a particular
significance in the negotiations that followed were a nondiscrimination
clause, language concerning temporary and part-time employees , the sub-
jects of reduction in work force, recall procedure, employees' obligations,
superannuated employees ( later withdrawn by Respondent ), lunch and
break periods , sick leave , leave of absence, and existing retirement and
savings plan, termination of employees for reasons of health or age, and a
military service clause
v Two of those listed were "The determination of safety, health and prop-
erty protection measures for the business" and "The placing of service,
maintenance or distribution work with outside contractors or subcontrac-
tors" Within the overall rationale I apply to this case neither of these pro-
posed managerial rights is deemed to evince lack of good-faith bargaining
Gulf Power Co, 156 NLRB 622 (1966), and Stuart Radiator Core Mfg Co,
173 NLRB 125 (1968), both cited by General Counsel, are each d istinguish-
able in this area
AMERICAN WELDING & INDUSTRIAL SALES, INC.
work, coffee breaks, or lunch periods, providing that
the employee doing the soliciting or distribution and
the employee being solicited or to whom the material
is being distributed, both are not working during this
period.
The section concluded by making discipline for any of the
enumerated reasons grievable but limited arbitral review of
such a matter only to "[T]he question as to whether the
employee committed any of the prohibited acts."
Section 15 of Respondent's proposal was entitled,
"Grievance Procedure." It defined a grievance as any
claim that an "express provision" of the agreement had
been violated and provided for initiation of grievances only
by "[A]n aggrieved employee of the employer, or by a
union officer, or the union shop steward.... " Griev-
ances were to be filed within 3 working days of the "incep-
tion or occurrence thereof" and a further set of time limits
governed higher level review. This proposal included the
following subsections:
15.05. The parties agree to follow the foregoing
grievance procedure in accordance with the steps, time
limits and conditions set forth above. If, at any step of
the grievance procedure, the Employer's representa-
tive fails to give his written answer within the time
limit herein set forth, the Union may appeal the griev-
ance to the next step at the expiration of the time limit.
If the employee or the Union fails to follow the fore-
going procedure in accordance with the time limits set
forth herein, the grievance shall be settled on the basis
of the Employer's last answer, and no further action
can be taken.
15.06. At any stage of the grievance or arbitration
proceedings, either party may request that any witness
for the other party, including the employee filing the
grievance, shall submit to a polygraph test. Refusal of
any witness to take a polygraph test will make that
witness' testimony inadmissable for the purpose of re-
solving the grievance or in the arbitration provided for
in the next Section 16 (Arbitration). The polygraph
test may be administered by any expert in the giving
of such tests, selected by the party requesting the test,
who is qualified by the Keeler Institute, Chicago, Illi-
nois, and who is not in the employ of the Employer or
the Union. The cost of such test shall be borne by the
party requesting the test. The results of the polygraph
test shall be final and binding upon all parties to the
grievance. Further, if the grievance goes to arbitration
in accordance with the provisions of the next Section
16 (Arbitration), the arbitrator shall be bound by the
results of the polygraph test in making his decision.
15.07 Anything in this Agreement to the contrary
notwithstanding, the following matters are not subject
to the grievance or arbitration procedures of this
Agreement:
(a) Any matter specifically covered by any provi-
sion of this Agreement where there is no dispute as
to the facts; or
(b) Any matter reserved solely to the rights of
management, or to the discretion of the Employer,
by the terms of this Agreement; or
1089
(c) Any matter which would require a change
from the wages, hours, or conditions of employment
set forth in this Agreement; or
(d) Any matter which is not regulated by this
Agreement, or
(e) Any grievance which is not filed in accor-
dance with the provisions of Paragraph 15.02 of this
Section 15.
Section 16 of Respondent's proposal, entitled "Arbitra-
tion," sets forth procedures for direct appointment of arbi-
trators or, failing that, appointment from Federal Media-
tion and Conciliation Service panels. The proposal limited
arbitral authority by negating any power to decide a matter
not declared to be a grievance under Paragraph 15.07, to
change wages, hours, or conditions of employment as set
forth in the agreement, to add to, subtract from, or modify
any of the terms of the agreement, to substitute an
arbitrator's discretion for the employer's discretion in cases
where the employer was given discretion by the agreement,
and, further, to deal only with the grievance occasioning
appointment and to not consider any hearsay evidence.
Expenses of the impartial arbitrator were proposed to be
paid by the party losing the arbitration.
Section 28 of Respondent's proposal, entitled "Employer
Investigations," read in part:
28 01 In the event that the Employer has reason to
believe that an act of sabotage has been committed or
that there has been a theft or destruction of the Em-
ployer or another employee's property, or that there
has been poor work performance, or that there has
been a violation of any of the Employer's rules, the
Employer may require an employee who is reasonably
related to the act or acts in question to take a poly-
graph test in order to determine the responsibility for
the act or acts in question. Any employee who refuses
to take a polygraph test, when requested to do so by
the Employer, shall be subject to immediate discharge
without notice.
Section 31 of Respondent's proposal, entitled "Entire
Agreement," read:
31 01. The Employer shall not be bound by any re-
quirement which is not specifically stated in this
Agreement. Specifically, but not exclusively, the Em-
ployer is not bound by any past practices of the Em-
ployer or understandings with any labor organiza-
tions, unless such past practices or understandings are
specifically stated in this Agreement.
31.02. The Union agrees that this Agreement is in-
tended to cover all matters affecting wages, hours, and
other terms, and all conditions of employment and
similar or related subjects, and that during the term of
this Agreement neither the Employer nor the Union
will be required to negotiate on any further matters
affecting these or any other subjects not specifically
set forth in this Agreement.
The meeting of November 19 began with Lerten elabo-
rating on his disclaimer of inability to pay posture. The
spokesman then exchanged economic feelers with discus-
sion proceeding to center on the Union's demand for a
6.2-percent economic improvement and Respondent's offer
of a 5.5-percent wage increase without change in fringe
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits . The subject was left as discussion moved to van- read:
ous other areas of disagreement . On union security , Lerten
offered a maintenance -of-membership clause with right of
employee withdrawal during the first 10 days of the con-
tract. Ullman tied this subject into the Union having equal
opportunity with other sources as to the furnishing new
employees but Lerten refused such concession on grounds
Respondent was satisfied with its hiring sources and be-
lieved a change would only generate problems. Ullman re-
quested relief from the restrictive language concerning vis-
itation rights of union representatives but Lerten adhered
to his contract proposal adding the matter could be han-
dled on a case-by-case basis. Ullman voiced support for
the Union' s maintenance-of-standards proposal but Lerten
refused to agree to such language countering with explana-
tion that any particular benefits the Union desired should
be raised and, if agreeable , "spelled out" in the contract.
The subject of management rights was discussed with Ler-
ten characterizing the Union 's proposal as worthless in this
regard , adding that he did not necessarily insist on man-
agement rights as set forth in his proposal but instead on
the principle that management rights be expressly detailed
in negotiated language. There was refinement in principle
concerning full-time employees regularly working two jobs
and employee transfers . Ullman sought to shorten the pro-
posed 3-month probationary period but Lerten declined
any change . The parties disagreed as to the extent of se-
niority usage concerning promotions , shift choice, over-
time , and vacation scheduling with Lerten insisting that
seniority apply only to job protection and not in areas
which would limit operational flexibility. Discussion
moved to language concerning discipline and discharge
with Ullman favoring a simple "just cause" concept to ap-
ply in the area while Lerten desired specific reasons be set
forth and denominated as requisite just cause. Some pro-
gress occurred when Lerten displayed language for a three-
step progressive disciplinary approach. 10 Proceeding to the
subject of overtime , Ullman stated an understanding that
daily overtime was already in effect and, upon verifying
this with Owen, Lerten agreed to such change. In the same
area , Ullman proposed double time pay for Sunday work
and in the belief that such rarely, if ever, occurred Lerten
agreed to this. During the course of the meeting , II which
concluded at 12:45 p.m., Ullman commented as to the pos-
sibility of a strike in the event employees rejected the over-
all contract offer.
Negotiations were dormant into early December at
which time rumors reached Owen that a strike was immi-
nent. By that time employees had, in fact, rejected
Respondent 's proposed contract at a union meeting. On
December 1, Owen sent telegrams to employees which
10 The parties tentatively agreed that 18 of the enumerated 49 reasons
would require two warnings before discharge Company practice had been
that of discretionary use of a two -step warning plan
i i Lerten is credited as to events occurring during this and successive
bargaining meetings His meeting notes were more thorough and better or-
ganized than other participants and his chronological testimony of the nego-
tiations generally more persuasive An exception to my general credibility
resolution relates to whether a strike possibility was mentioned on Novem-
ber 19 , as this subject appears prominently in Ullman's notes and is a con-
vincingly likely utterance on his part
UNDERSTAND UNION CALLING STRIKE MONDAY . COMPANY
WILL CONTINUE TO OPERATE . YOU HAVE LEGAL RIGHT TO
CROSS [PICKET] LINE AND WORK . IF NECESSARY COMPANY
WILL REPLACE STRIKERS . IF PERMANENTLY REPLACED, YOU
MAY [LOSE] POSITION.
A strike did occur December 3 and Owen wrote the follow-
ing letter to striking employees on that date:
This letter is written to inform you that this company
will continue to operate in spite of the work stoppage
which began on this day. If it is necessary to replace
striking employees in order to maintain our opera-
tions, we shall do so. Accordingly, we feel that it is
only fair to inform you that in the event you are per-
manently replaced , you will lose your position with
this company.
Respondent did, in fact, maintain operations with replace-
ment employees hired during the period December 7-10.
On December 10, Ullman telephoned Lerten and a
meeting was arranged for December 12. Ullman and James
Fitzgerald appeared for the Union, waiting 15 minutes be-
yond the scheduled 2 p.m. starting time before discussion
commenced . Ullman summarized a possible basis for
agreement should the Company improve its economic offer
to an overall 6.2 percent, agree to a modified union shop
excluding any present employee not desiring to join, and
improve administrative language regarding grievance pro-
cedure, work rules, disciplinary discharge , polygraph test,
and qualifying fringe benefit language . Lerten and Owen
caucused for approximately 20 minutes and upon returning
Lerten stated Respondent would not offer to pay group
insurance for employee dependents but would offer an ad-
ditional one-half holiday on Christmas Eve, and an addi-
tional one-half holiday on New Year' s Eve , providing such
holidays fell on a Tuesday through Friday. This concession
reflected a practice already in effect . Lerten continued by
stating the Company would offer to equally share an
arbitrator 's cost and minor changes were made in some of
the Respondent 's enumerated reasons for discharge with
an additional three of them deleted . Generally Lerten ar-
gued that express description of various types of just cause
for disciplinary action should remain ; otherwise it opened
the area too wide for an arbitrator to apply his notions of
reasonableness . In discussing disciplinary reasons, Lerten
emphasized the Company's interest in expecting employees
to carry out their duties, notwithstanding such picket lines
as might confront them. Lerten adhered to Respondent's
position that bargaining unit work by supervisors should
continue to be permitted as was customary in
Respondent 's "small operation" and that, regarding union
security, a slight modification was offered in that mainte-
nance of membership was proposed with an employee's
right of withdrawal during the 15 days at the end of a
contract The period of time for the filing of a grievance
was increased to 5 days, however Lerten adhered to lan-
guage calling for grievance forfeiture in the event time lim-
its were not observed , while not exposing Respondent to a
AMERICAN WELDING & INDUSTRIAL SALES, INC.
corresponding penalty. As at the prior meeting, discussion
of the polygraph arose in terms of Subsection 15.06 with
Ullman terming it illegal and Lerten insisting it was appro-
priate to the grievance procedure and in customary use at
the Company.12 The meeting ended at approximately 4
p.m.13
On December 18, Ullman telephoned Lerten urging the
Company to modify its position on union shop in the inter-
est of reaching agreement. Lerten agreed to reconsider with
company officials and after doing so sent Ullman a letter
dated December 21, restating Respondent's last position
on the subject and concluding with the statement "[T]he
Company feels it has gone as far as it can on the issue of
the union security and will not change its position . . . at
this time." Ullman replied by letter dated December 26
setting forth 15 areas as to which he was "[c]onfident an
agreement could be consummated if the Company were
willing to agree ... " and concluding with the suggestion
of a meeting at Lerten's earliest convenience to attempt
resolution of remaining issues. Lerten learned of this letter
in a contact to his office and caused his secretary to ar-
range a further meeting which was set for January 2, 1974.
Ullman and Patton appeared for the Union at this meet-
mg, waiting at least 15 minutes beyond its scheduled 10
a.m. starting time. Lerten opened the meeting by protesting
that the apparent number of outstanding issues had grown
but that the best approach was to take each item set forth
in Ullman's letter. This was done with equal hiring oppor-
tunity for the Union discussed first Lerten characterized
this as a "hiring hall," saying that while no discrimination
would be practiced against union members Respondent
wished to continue doing its own hiring. Lerten reiterated
Respondent's willingness to negotiate specific rights of
management provided they did result in eventual listing.
On visitation rights, Lerten adhered to Respondent's posi-
tion that this should occur outside working hours. Simi-
larly, he repeated opposition to a maintenance-of-stand-
ards clause stating that instead anything agreed upon rel-
ative to working conditions should be specified.
Respondent's proposed reasons for discipline were dis-
cussed and Ullman withdrew objection to 14 of them sub-
ject to the three-step warning language.14 Lerten declined
to establish a time limit on use of past discplinary record
but did agree to strike language requiring an aggrieved em-
ployee to state specific contract sections allegedly violat-
ed.(5 The use of polygraph in grievance procedure and li-
mitation on arbitral authority was also discussed without
modification by Respondent. Lerten agreed for the first
time to offer vacation entitlement to regular part-time em-
ployees but refused to agree that vacation scheduling
would occur by seniority on grounds the operation was too
small.16 He refused to grant a work guarantee but did ac-
12 Owen had testified that in regard to general polygraph matters the
company policy was to request, but not require. the taking of such tests (Tr
p 122, 123)
13
Ullman characterized it in his testimony as being "very brief" to the
point the Union "practically wasted our time "
14
At Tr p. 446, Lerten testified that Ullman had no serious objection to,
among others, number 5 As this was always in dispute, I deem the testimo-
ny an inadvertent error.
15 Tr p 447, 1 8, is corrected by substituting "15 02" for "17 02 "
1091
cept the first portion of the Union's safety and health pro-
posal. Lerten would not agree to a job bidding procedure
on grounds of Respondent's size and adhered to the offer
of Respondent's existing benefit plan without dependent
coverage. This meeting ended at approximately 2:30 p.m.
Subsequently, on February 6, 1974, Ullman communi-
cated an unconditional offer to return to work on behalf of
five striking employees. Employee Walter M. Greenleaf,
III, had by then been recalled to work to fill a position
vacated when Respondent terminated a replacement em-
ployee. Ishmael Guzman was also recalled to work while
other striking employees either resigned or were continued
on preferential reinstatement status for future vacancies.
This case concerns a course of bargaining with specific
factors indicative, in General Counsel's view, of bad faith.
As to overall mechanics and tempo of negotiations, I find
an utter absence of dilatory conduct. An extensive counter-
proposal was produced with promptness, delay in com-
mencing meetings was based on minor factors under-
standable in a business office context and although Re-
spondent did not ordinarily initiate negotiations it
continued them briskly on occasion of each request.
I have rejected evidence that the August 31 meeting saw
a claim of inability to pay. It is true the Stockton 17 case
found an inability to pay claim based on utterances that
were interpreted to have that meaning. Here, a refusal to
increase labor costs is based on classic bargaining disincli-
nation rather than the notion of business poverty. See
Charles E. Honaker, 147 NLRB 1184 (1964).
Essentially, the Union sought an industry pattern con-
tract while Respondent desired to minimize the effects of
unionization. The Union pressed for immediate achieve-
ment of institutional-type proposals tending to consolidate
its position, make it more visible and establish a looseness
of language permitting further gain by contract interpreta-
tion of bargaining intent or custom and practice.
Respondent's proposals invariably sought to eliminate
ambiguity and clamp rigid, limiting language on many sub-
jects covered. Its aim, sufficiently explained in negotia-
tions, was to convert to the newly required collective basis
of dealing with its employees only in a manner in which
predictability was present and operational flexibility at a
continued high level.
Respondent permissibly adhered to a modest form of
union-security offer, remaining within doctrinal limits on
the subject. Similarly its demand for management rights
was sufficiently justified, both in the abstract as to lan-
guage proposed and by explanations repeatedly given
union negotiators on the subject. Cf. Wheeling Pacific Com-
pany, 151 NLRB 1192 (1965), and cases cited therein;
Schnell Tool & Die Corporation, 144 NLRB 385 (1963).
As to disciplinary powers, Respondent sought to com-
partmentalize prohibited employee conduct. The effect of
doing so narrows disciplinary disputes to the more particu-
larized question of whether conduct falling within artful
employment law meaning 18 has occurred, rather than us-
16 In the course of negotiations, Respondent also modified its vacation
proposal to permit pro rata vacation pay for part-time employees reflecting
current practice
"Stockton District Kidney Bean Growers, 165 NLRB 223 (1967)
Id See "Contract Terms Interpreted," Labor Arbitration Cumulative Digest
Continued
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the generalized notion of just cause .19 Lerten expressly
noted a purpose of this was to exclude arbitral consider-
ation based on sympathy. As movement occurred on the
subject and no startling prohibitions were proposed, this
area rests merely as another in which agreement was not
totally reached. Fragmented evidence of Respondent's past
condonation of employee misconduct does not corrupt the
proposal. I find that enumerated reason for discharge num-
ber five does not constitute a per se violation both intrinsi-
cally and, in part, since a meaningful no-lockout clause
was proposed in contrast to the illusory one significant to
decision in Stuart Radiator, supra.
The desire for strong management rights language, cou-
pled with near abhorrence of the Union's proposed mainte-
nance-of-standards clause and desir' for a tightly worded
arbitration clause, was the central rationale of
Respondent's bargaining position. It maintained willin--
ness to negotiate any subject and compromise any issue 0
seeking mainly to assure that terms of the contract would
carry substantial certainty relative to labor costs and work
force utilization. Ullman rightly claimed that the arbitra-
tion language Respondent proposed was harsh and seem-
ingly unprecedented 21 The fact remains that it contemplat-
ed a third-party dispute settlement mechanism in which,
while sharply limiting arbitral powers, latitude still would
exist for judgmental determination of evidence leading to
crucial resolution of ultimate fact issues. In the last analy-
sis, arbitration mutates the ability of parties having a col-
lective-bargaining relationship to fix and administer their
own contractual terms and Respondent exhibited nothing
more than a keen desire to closely channel this process to
and Index with Table of Cases (BNA), vol 51-60 (1974) for "moonlighting,"
p 429, and vol 21-3p (1960) for "horseplay," p. xv
i9 Often also termed sufficient cause , good cause , justifiable cause, rea-
sonable cause, proper cause, or combinations thereof. This is a narrow illus-
tration of the range of phrasing available to negotiations.
20 Lerten's testimony, Tr p 485, which I credit
21 Proposing that only the Union could forfeit a grievance has reasonable
compatibility with the overall scheme of Respondent's Sec 15 when it is
noted that Respondent as an employer has no entitlement to initiate a griev-
ance . This privilege is often present with instances of union liability found
in reported decisions . Haddon Craftsmen, Inc, 57 LA 895 (M Berkowitz),
PPG Industries, Inc, 51 LA 500 (J Vadakin), Teamsters v Consolidated
Freightways, 56 LRRM 3033 Since here only the Union (or an employee)
could initiate a grievance it follows that reasonableness is not offended to
seek forfeiture against the only potential "moving party" for such purposes
As to mandatory polygraph testing applicable to any witness, it remains
problematical whether that would have the mechanistic significance sug-
gested at first reading While such results might bind parties and the arbitra-
tor, the manner in which the latter would be "bound" could only be learned
in an actual proceeding. Thus, a particular witness' version of events might
show strong truthfulness or strong nontruthfulness but still not be persua-
sive as to accepted evidentiary fact of the events since greater weight could
be accorded other testimony While such is conjectural it is true cautious
application of polygraph techniques has arisen in reported arbitration cases
Bowman Transportation, Inc, 61 LA 549, (C Laughlin), American Maize-
Products Co, 56 LA 421, (J Larkin), Koppers Company, Incorporation, 68-1
ARB par 8084 See also American Oil Company, 189 NLRB 3 (1471) Sec
16 02(f) would exclude hearsay evidence although it is commonly permitted
in labor arbitration See 29 CFR 1404 12 (Federal Mediation and Concilia-
tion Service Arbitration Rules) and Rule 28, Voluntary Labor Arbitration
Rules of the American Arbitration Association This point must rest with
comment that parties may shape their arbitration creature as they see fit and
I cannot treat this proposed language as indicative of bad faith See Steel-
workers v American Manufacturing Company, 363 U S 564, 570 (concurring
opinion)
the extent it was mvoked.22
The failure to reach agreement was affected by the
Union's indifferent approach to bargaining. At the conclu-
sion of the second meeting on August 31, it had contribut-
ed little of meaningful substance as shown by Ullman's
own testimony to his belief Respondent's claim of inability
to pay left "nothing else we can talk about." 23 Contrarily
there would have been much yet to talk about; the first
topic suggested whether Respondent could document its
financial position and beyond that all remaining noneco-
nomic areas of disagreement as to which there were
many.24 Each party's proposal was its own bastion of
words. The spirited advocacy of one party was the exasper-
ation of the other. Respondent had no monopoly on clever-
ly meager phraseology for traditional contract areas.25 In
the touchstone area of union security Respondent made
progressive concessions, slight though they were, which be-
lay concluding an effect or intent of overall employer bar-
gaining was to undermine the Union's achieved status or
escape reaching worthwhile agreement. The most telling
feature of the evidence is that subsequent to the November
19 meeting the Union presented Respondent's offer to bar-
gaining unit members for their own acceptance or rejec-
tion. This action largely undercuts application of estab-
lished doctrine that an employer's bargaining posture can
involve such onerous terms as to insure opposition by any
self-respecting labor organization 26
Other subjects of lesser significance have been attacked
by General Counsel on grounds of inherent illegality. The
proposed no-solicitation rule is only arguably ambiguous
and when read in conjunction with enumerated reason for
discharge number 41 the ambiguity is shed 27 leaving mere-
ly a proposal subject to modification. The general poly-
graph proposal respecting new employees 28 was reflective
of Respondent's practice. To the extent California Labor
Code 432.2 is raised, it is significant to consider an authori-
tative published interpretation of that statute.29 Apart from
the point of it being a mere proposal to the Union, Owen's
22 For a sophisticated discussion of the essence of labor arbitration and
lurking nuances about which Respondent harbored legitimate concern see
Edgar A Jones, Jr, "The Schizophrenic World of Labor Arbitration and
Mr Q Vadis, Arbitrator," proceedings of Fourteenth Annual Institute on
Labor Law, The Southwest Legal Foundation, at 251-302 (1968)
23 Tr p 254
24 In evaluating this case, I note the apparent expertise and depth of
experience in collective-bargaining matters possessed by each chief spokes-
man Ullman is shown to be a principal negotiator for the Union while
Lerten has had many years labor law practice
25 The Union's proposed Art III verged on a "negative" management
rights clause by stating, under the pluralistic heading of "Retained Rights,"
onli the single , closely circumscribed right to discharge
2 Cf Abingdon Nursing Center, 197 NLRB 781 (1972)
27 See Walton Manufacturing Company, 126 NLRB 697 (1960)
28 1 find Respondent's proposed Sec 28 was never reached for discussion
between the parties Lerten denies it was, I credit this denial A close read-
inC of Ullman's testimony (Tr p 279) fails to show a contrary claim
'29 The following conclusions were reached upon a request for interpreta-
tion in 43 Ops Cal Arty Gen 25, issued January 14, 1964
New Section 432 2, Labor Code, prohibits an employer from demand-
ing or requiring a polygraph test as a condition of employment or
continued employment, although it does not prohibit an employer from
asking for or requesting such a test An evaluation of all the circum-
stances will determine whether the section has been violated
AMERICAN WELDING & INDUSTRIAL SALES, INC.
testimony was that Respondent only requested such tests
and thereby functioned within the permissible area. Occa-
sionally Respondent's tough bargaining posture over-
reached. While discussion between the parties never
reached legalistic Subsection 26.05 of Respondent's pro-
posal, this passage, presuming to substitute the authority of
contract for judicial-type determinations, is axiomatically
unenforceable. Whether read in connection with the separ-
ability clause or simply viewed as a bargaining proposal, I
can in neither event deem the existence of this language as
part of an intention on Respondent's part not to achieve
agreement with the Union.
The strike of employees commencing December 3 was
economic in nature as at that point Respondent was not in
violation of the Act. It began at a time when only 2-1/2
hours of serious negotiating had occurred over a 4-month
period. While subsequent bargaining sessions brought only
slight change,30 there was balanced adamancy on each side.
The strike continued to early February 1974 for the same
motivation as present at inception. It was not prolonged by
subsequent bargaining action of Respondent or its failure
to make concessions fully satisfactory to the union negotia-
tors. The Dow Chemical Company, 186 NLRB 372 (1970);
Speciality Container Corporation, 171 NLRB 24 (1968);
Webster Outdoor Advertising Company, 170 NLRB 1395
(1968). During this period and beyond the rights of striking
employees were recognized within applicable doctrine.
A final matter for consideration is the written communi-
cations issued by Respondent at the time the strike com-
menced. General Counsel focuses on the second of these
30 Failure to harmonize Respondent's proposal with existing fringe bene-
fits is not commendable, but in circumstances of this case fails to impress as
a deliberately disruptive bargaining tactic
1093
because of the finality of language used. I do not consider
Owen's letter of December 3 to embody a threat. It must
be viewed in conjunction with the telegram close in point
of time and accurately states the literal truth that the em-
ployee addressed "will" lose his position for at least the
time being if permanently replaced. After a week of strik-
ing, employee Greenleaf inquired of his status and, al-
though learning from a supervisor he had been perma-
nently replaced, could not recall whether told he had not
been "fired." This branch of the case differs substantially
from The Laidlaw Corporation 31 in which the statement to
employees was that they would "forever" lose the right to
employment by commencing a strike. Considering this and
other circumstances in Laidlaw, I find it distinguishable
and otherwise conclude employees here were not subjected
to a threat cognizable under Section 8(a)(1) of the Act. The
Dow Chemical Company, supra.
As to each contested issue the preponderance of evi-
dence does not support allegations of the complaint. My
conclusion of law is that Respondent has not in any man-
ner violated the National Labor Relations Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 32
The complaint is dismissed in its entirety.
31 171 NLRB 1366 (1968)
32 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102
48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes