Arkansas Grain Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1968

172 N.L.R.B. 1742 (N.L.R.B. 1968)

1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arkansas Grain Corporation and Arkansas Rice
Growers Cooperative Association and Interna-
tional Union of United Brewery , Flour , Cereal,
Soft Drink and Distillery Workers of America,
AFL-CIO. Cases 26-CA-2686, 26-CA-2687,
26-CA-2688, and 26-CA-2689
August 27, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On September 12, 1967, Trial Examiner Leo F.
Lightner issued his decision in the above-entitled
proceeding, finding that Respondents had engaged
in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondents had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended dismissal of such al-
legations. Thereafter, Respondents filed exceptions
to the Trial Examiner's Decision, and the General
Counsel filed cross-exceptions to the Decision 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
cross-exceptions, the brief, and the entire record in
the case, and finds merit in the cross-exceptions.
Accordingly, the Board adopts the findings of the
Trial Examiner only to the extent that they are con-
sistent with the following.
The Trial Examiner found that Respondents
had not violated Section 8(a)(5) of the Act by
walking out of a meeting with the Union on
February 7, 1967, on the ground that a "stranger"
to the negotiations was present. We find, however,
that under the circumstances of this case Respon-
dents' walkout constituted a refusal to bargain. The
' At the time the Trial Examiner issued his Decision herein, there was
also outstanding an order of the Board , upon which the Trial Examiner
based his finding of an unlawful refusal to bargain , requiring Respondent,
Arkansas Grain Corporation, to bargain with the Union for a unit of its
Stuttgart , Arkansas, plant employees Arkansas Grain Corporation, 163
NLRB 625 Subsequent to the Trial Examiner's Decision, the court of ap-
peals denied enforcement of the said order A' L R B v Arkansas Grain
reasons for our disagreement with the Trial Ex-
aminer are set forth below.
Respondents operate approximately 20 plants
which process and sell grain or mill and market rice
related products. Respondents have common of-
ficers, ownership, and directors. Their agents for-
mulate and administer a common labor policy. The
Union represents the production and maintenance
employees at three of the plants in separately cer-
tified units.'
Respondents have maintained a uniform Blue
Cross and Blue Shield Insurance Plan for all of their
employees since 1959. During November 1966,
Respondents were notified by the insurer that as
the result of the adoption of Medicare a premium
change was necessary to maintain the relative level
of benefits then enjoyed by the employees. Respon-
dents agreed to this change and explained it in a
memorandum distributed to employees about
January 1, 1967. According to the memorandum
Respondents would continue to contribute the en-
tire cost for employees, but employees on the fami-
ly benefit plant would have to pay $7 per month
rather than $5.85 per month, the old rate. The
Union was first apprised of this unilateral change
on January 9 when one of its members disclosed
Respondents' memorandum explaining the change.
The Trial Examiner found that the above uni-
lateral change of a mandatory subject of bargaining
violated Section 8(a)(5) and (1) of the Act.
Furthermore, he found that in view of their other
unfair labor practices Respondents were engaged in
a "less than subtle effort" to undermine the Union.
We agree with these findings.
On February 1, 1967, at a negotiation meeting of
the Arkansas Grain, Helena, unit, the Union
broached the issue of the insurance change. Without
explaining their failure to notify the Union earlier,
Respondents proposed three meetings, one each at
Helena, Stuttgart, and Jonesboro, to explain the
change to the Union. The Union's International
representative, their chief negotiator for the grain
and rice units, suggested that a single meeting with
negotiators from all units present would be more ef-
ficient. While Respondents and the Union never
agreed on the holding of a joint meeting or separate
meetings, they did agree to meet on February 7 in
Stuttgart.
On February 3, 1967, the Union sent a notice to
its members at the Stuttgart, Jonesboro, and Helena
Corporation, 390 F 2d 824 (C A 8) In view of this circumstance, and as
there is no other evidence of majority representation , we shall modify the
Trial Examiner's Decision by deleting his finding that Respondent , Arkan-
sas Grain Corporation , had unlawfully refused to bargain with the Union
for the Stuttgart plant employees , and we shall dismiss the complaint in-
sofar as it alleges such violation The court 's decision does not affect the
other parts of the Trial Examiner 's Decision which we have adopted
172 NLRB No. 205
ARKANSAS GRAIN CORPORATION 1743
units, stating that Respondents offered to explain
the insurance change on February 7. They also
stated that each unit would meet separately to vote
on the matter; if the vote favored cancellation of
the plan, Respondents agreed to rescind the change
until a new plan could be negotiated.
On February 7, at Stuttgart, the Union was
represented by Gerchak (the chief negotiator), Ed-
wards (Helena unit), three delegates of the
Jonesboro unit, and seven members of the Stuttgart
(Rice) unit. Respondents were represented by At-
torney Clark, Guffin (Respondents' personnel
manager), Mason (assistant general manager of Ar-
kansas Rice Growers and Arkansas Grain Corpora-
tion), and Parks (manager of Arkansas Rice,
Jonesboro, plant). As the meeting commenced,
Clark objected to the presence of Edwards, the
Union's efforts to contact the insurer, and the
union letter of February 3 to which we referred
above.' Shortly thereafter, Respondents left the
meeting. The Trial Examiner found that Respon-
dents' withdrawal was permissible since they were
under no statutory duty to conduct "joint bargain-
ing sessions with all three, or four units...."
We find, however, that the Union was not at-
tempting to force joint bargaining upon Respon-
dents who had proposed the meeting as one for the
explanation of the insurance change. The February
3 letter of the Union characterized the meeting in
those same terms. The Union's chief negotiator,
during his testimony, may have described the meet-
ing as a "negotiation meeting," but that cannot ob-
scure the fact that the Union was not insisting upon
joint bargaining. The most that can be said is that
the meeting was some part of the collective-bar-
gaining process.
Respondents contend that engaging in a joint
meeting would establish a pattern which the Union
could use at a later date to force joint bargaining on
other matters. Furthermore, they suggest that the
different nature of the rice and grain units would
engender conflict on various subjects of bargaining.
It was, however, Respondents who offered to
have the Stuttgart and Jonesboro units meet
together; and, in fact, these two units did meet
together on February 13, 1967. This meeting was
held only to explain the change in the insurance
plan which would be uniform for all units. Such
uniformity has been the practice in the past, and
there is no indication that either party contem-
plated a change in this practice. The uniform imple-
mentation of the plan also nullifies Respondents'
contention regarding the potential conflict between
rice and grain units.
Respondents' stated reasons are therefore no
more than pretexts to disguise their lack of good
faith in dealing with the Union. Under the circum-
stances stated above, it was unreasonable for
Respondents to have walked out of the February 7
meeting.3 We find that Respondents' conduct was
but another step in their continuing efforts to un-
dermine the Union.
Accordingly, we find, contrary to the Trial Ex-
aminer, that by walking out of the February 7,
1967, meeting, Respondents violated Section
8(a)(5) and (1) of the Act.
As Respondents and the Union have since met to
explain the insurance changes, the Board finds it
unnecessary to modify the Trial Exqminer's remedy
recommendation.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Arkansas Grain Corpora-
tion, Helena, Arkansas, and Arkansas Rice Growers
Cooperative Association, Stuttgart and Jonesboro,
Arkansas, their officers, agents, successors, and as-
signs , shall take the action set forth in the Trial Ex-
aminer 's Recommended Order, as so modified.
Delete the fourth indented paragraph of the
Notice to All Employees attached to the Trial Ex-
aminer 's Decision
IT IS HEREBY FURTHER ORDERED that the com-
plaint be, and it hereby is, dismissed insofar as it al-
leges that Respondent, Arkansas Grain Corpora-
tion, unlawfully refused to bargain with Interna-
tional Union of United Brewery, Flour, Cereal, Soft
Drink and Distillery Workers of America,
AFL-CIO, as the representative of Arkansas Grain
Corporation's Stuttgart, Arkansas, plant employees.
1 Since the Union clearly had the right to communicate with its members
and the insurer, we agree with the Trial Examiner that the true reason for
Respondents' withdrawal from the meeting was the presence of Edwards
' Cf Standard Oil Company, 137 NLRB 690, enfd 322 F 2d 40 (C A 6),
where a refusal to bargain was found when the company refused to meet
with the union as long as temporary, nonemployee representatives were
present The refusal related to a full-blown bargaining session, although the
union made it clear that it was not requesting companywide bargaining
172 NLRB No 205-T-26
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceed-
ing was heard before me in Helena, Arkansas, on
May 25, 1967, on the consolidated complaint of
General Counsel and the answer, as amended, of
Arkansas Grain Corporation and Arkansas Rice
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Growers Cooperative Association, herein called the
Respondents or, alternatively, Arkansas Grain and
Arkansas Rice.' The complaint alleges violations of
Section 8(a)(5) and (I) and Section 2(6) and (7)
of the Labor Management Relations Act, 1947, as
amended, 61 Stat. 136, herein called the Act. The
parties waived oral argument and briefs filed by the
General Counsel and Respondents have been care-
fully considered.
Upon the entire record, and from my observation
of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
Arkansas Grain is an Arkansas corporation with
plants and places of business at Helena and Stutt-
gart, Arkansas, where it is engaged in the
processing and sale of grain . Arkansas Rice is an
Arkansas corporation, with plants and places of
business at Stuttgart and Jonesboro, Arkansas
where it is engaged in the milling and marketing o1=`
rice and related products.2 During the 12 calendar
months preceding the issuance of the complaint, a
representative period, Arkansas Grain purchased
and received at its Helena and Stuttgart, Arkansas,
plants from points outside the State of Arkansas
goods and products valued in excess of $50,000,
and during the same period of time, processed,
sold, and shipped products valued in excess of
$50,000 from the Helena and Stuttgart, Arkansas,
plants directly to points outside the State of Arkan-
sas. During the same period of time , Arkansas Rice
processed, sold, and shipped products valued in ex-
cess of $50,000 from it Jonesboro and Stuttgart,
Arkansas, plants directly to points located outside
the State of Arkansas.
Arkansas Grain and Arkansas Rice are, and have
been at all times material herein, affiliated business
concerns with common officers, ownership,
directors,, and constitute a single -integrated busi-
ness enterprise, whose agents formulate and ad-
minister a common labor policy for the said
Respondents, affecting the employees of said
Respondents.
The complaint alleges , the answer, as amended,
admits, and I find that Respondents are, and at all
times material have been, employers engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of United Brewery, Flour,
Cereal, Soft Drink and Distillery Workers of Amer-
' The charges in the four numbered cases were all filed on February 27,
1967, and a consolidated complaint was issued on April 13, 1967
r While James Louis Mason , identified as assistant general manager of
ica, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Issues
The principal issues raised by the pleadings and
litigated at the hearing are whether the Respon-
dents, as more fully set forth in the complaint, en-
gaged in activity in contravention of the provisions
of Section 8(a)(5) and (1) of the Act, by refusing
to bargain collectively with the Union, as the exclu-
sive collective-bargaining representative for all the
employees, in each of four separate units, described
[infra, by (1) on or about January 1, 1967, uni-
Laterally changing existing medical and hospitaliza-
tion insurance benefits and thereafter by refusing to
meet with the Union and bargain with respect to
the changes already instituted, or (2) on or about
February 7, 1967, refusing to meet and bargain
with the Union until and unless the Union removed
one of the members of its negotiating committee.
Respondents deny the commission of any unfair
labor practice, affirmatively assert that (a), prior to
January 1, 1967, it had bargained with the Union to
an impasse at the Arkansas rice plants and there-
fore the Company was free to make a unilateral
change, (b) alternatively, Respondents assert that
its entire system, not just the four identified plants,
was involved, and this particular change affected all
employees, the program was entered into prior to
the advent of the Union, and the Company wished
to keep abreast of increased costs in hospital
rooms, and (c) that during the course of negotia-
tions the chief negotiator for the Union had agreed,
in effect, to the insurance program and had as-
serted that he had no objection to any changes or
benefits which could be made at any time. Respon-
dents, inaccurately, asserted that the February 7,
1967, meeting related to Arkansas Grain in Helena
only.3
Background
The Appropriate Units-Previous Board
Certifications-Previous Board Finding of Majority
and Order To Bargain
Pursuant to an election, held on November 18,
1967, Case 26-RC-2518, the Board, on February
8, 1966, certified the Union as the exclusive collec-
tive-bargaining representative of the production
and maintenance employees, at Arkansas Rice's
Stuttgart plant, excluding guards, professional, and
both corporations and affiliates , asserted there are 20 corporations, it is un-
disputed that we are herein concerned only with the 4 identified plants
Actually this meeting was in Stuttgart , as set forth infra
ARKANSAS GRAIN CORPORATION
clerical employees, and supervisors as defined in
the Act.
Pursuant to an election, held on March 3, 1966,
Case 26-RC-2592, the Board, on May 12, 1966,
certified the Union as the exclusive collective-bar-
gaining representative of the production and main-
tenance employees, at Arkansas Rice's Jonesboro
plant, with the same exclusions stated in the
preceding paragraph.
Pursuant to an election, held on September 21,
1966, Case 26-RC-2721, the Board, on September
29, 1966, certified the Union as the exclusive col-
lective-bargaining representative of the production
and maintenance employees, at Arkansas Grain's
Helena plant , excluding guards, office clerical em-
ployees, and supervisors as defined in the Act.
In early February 1966, the Union requested
recognition and bargaining as the exclusive collec-
tive-bargaining representative of all production and
maintenance employees, at Arkansas Grain's Stutt-
gart plant, excluding all laboratory employees, of-
fice clerical employees, professional employees,
watchmen, guards, and supervisors as defined in the
Act. A consent election was held, on February 16,
1966, in Case 26-RC-2583, in which the Union
was unsuccessful . Timely objections resulted in the
Board 's ordering the election set aside and that a
second election be held, in a decision dated April 8,
1966. Meanwhile, the Union filed unfair labor prac-
tice charges , asserting violations of Section 8(a)(1)
and (5) of the act. The Board, on March 28, 1967,
in a case reported as 163 NLRB 625, in finding a
Joy Silk Mills' type violation, found that the union,
in fact, represented a majority of the employees in
the unit described on February 3, 1966,5 and the
Board, inter alia , issued a bargaining order.
There is no evidence, in this record, that the
Union has failed to maintain a majority in each of
the units described, as previously found by the
Board, in the manner herein described.
History of Bargaining in Each of the Separate Units
Described
No substantial dispute relative to the facts set
forth under this section appears in the record.
Edward S. Gerchak, as International representa-
tive of the Union and chief negotiator, it is inferred,
participated in all of the separate negotiating ses-
sions held relative to the Arkansas Rice units at
Stuttgart and Jonesboro, and the Arkansas Grain'
unit at Helena. There were no negotiating sessions
relative to the unit at Arkansas Grain's Stuttgart
plant, prior to this hearing. It is inferred that
Gerchak, during negotiations at Arkansas Rice's
Stuttgart plant, was accompanied by approximately
seven committee members, all of whom were em-
' Joy Silk Mills, Inc ., 85 NLRB 1263, enfd. 185 F.2d 732 (C A D C )
' While the allegation of par 10 of the consolidated complaint, herein,
alleging that the Union had been designated by a majority on January 26,
1966, is, thus, patently erroneous as to the date of the Union 's acquiring a
majority , the discrepancy of dates is , I find , of no substantial consequence
1745
ployed at that plant, whose identitiy is obscure and
of no consequence herein. Similarly, at the negotia-
tions at Arkansas Rice's Jonesboro plant, Gerchak
was accompanied by three committee members,
who were employed at that plant, whose identity is
similarly obscure and of no consequence herein.
The union committee at Arkansas Grain's Helena
plant, in addition to Gerchak, were Nathan Ed-
wards, Jimmy Ward, and an individual named
Bennett. Respondent's negotiators, inferentially at
all sessions , were Bill S. Clark, attorney and chief
negotiator, John Guffin, personnel manager of all
plants, and James Louis Mason, assistant general
manager of Respondent's corporations and all af-
filiates. In addition, at the Jonesboro negotiations,
Parks, manager of the Jonesboro plant, was a
member of the management team, and at Helena,
William Edward Higginbothom, manager of the
Helena plant, was a member of the management
team at the Helena negotiations.
Gerchak credibly related that negotiations at Ar-
kansas Rice's Stuttgart plant commenced in March
1966. Approximately 12 negotiating meetings were
held in Stuttgart, inferentially all but 2 of them on
or prior to August 1 1 , 1966.6 On August 1 1, 1966,
the Union offered to accept specified company
proposals, desist in its requests relative to certain
other proposals, and to consummate a 1-year con-
tract, as more fully set forth in the prior case. Sub-
sequently, on September 22, 1966, Respondent re-
jected this offer. Subsequently, on November 23,
1966, another, inconclusive, meeting was held at
Stuttgart. There were no other meetings relative to
the Stuttgart unit except the meetings of February 7
and 13, 1967, set forth infra.
The number of meetings at Jonesboro, estimated
by Gerchak as approximating five in number, is
somewhat obscure. In the case reported as 165
NLRB 577 the Board found that there were
meetings at Jonesboro on July 22 and 27 and Sep-
tember 23, 1966. A reading of that decision reveals
that there were negotiations relative to Jonesboro
on other dates, earlier than July 22, 1966. Un-
disputed is the fact that substantially all of the
Jonesboro negotiating meetings were separate from
the Stuttgart negotiating meetings. , Gerchak
acknowledged that because of the similarity of the
operations in Jonesboro and Stuttgart, and because
Respondent's employment policy had been the
same regarding these two operations, that the
parties agreed that the agreements reached at Stutt-
gart, relative to working conditions, would be made
a part of the Jonesboro agreement. The variation,
in conducting separate meetings , appears to have
occurred on August 11, 1966, when, according to
Gerchak, Parks, the Jonesboro manager, appeared
at a Stuttgart meeting Gerchak asserted the Com-
to the resolution of the issues herein
' Gerchak's estimate of 15 meetings appears erroneous , in the light of the
agreement of the parties that the dates of these meetings are correctly set
forth in the Arkansas Rice decision , identified as 165 NLRB 577
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany had decided to place into effect a wage raise
the following day at both Stuttgart and Jonesboro,
this was the first notice the Union had of the grant-
ing of the wage increase, and the reason for Parks'
presence was that the wage increase would effect
the Jonesboro employees, as well as the Stuttgart
employees. In this case, the parties stipulated that
the last negotiation meeting, relative to the Stutt-
gart and Jonesboro plants, took place on November
23, 1966. This is necessarily exclusive of the events
set forth infra. In the earlier case, reported as 165
NLRB 577, the Board found that committee mem-
bers for both Stuttgart and Jonesboro appeared on
November 23, and at that time Clark, company
spokesman, insisted that the negotiations for the
two plants should "remain separate," and Gerchak
pointed out that Parks had attended the August 1 1
Stuttgart meeting. It is thus reasonable to infer that
all the negotiation sessions, relative to Jonesboro,
were separately held, with the exception of the
variations indicated on August 11 and November
23.
Gerchak's assertion that negotiation sessions
commenced at Arkansas Grain in Helena on Oc-
tober 23, 1966, and that there were subsequently
13 negotiation sessions , with the last session being
held on March 24, 1967, stands undisputed. It is in-
ferred these meetings concerned negotiations rela-
tive to this unit only.
Previous Unfair Labor Practice Findings of the
Board, Involving Respondents
General Counsel has requested that official
notice be taken of prior Board decisons, involving
both Respondents, for several purposes: (I) to
establish that the Union is the majority representa-
tive at the Arkansas Grain Stuttgart plant; (2) to
establish Respondents' defense of impasse, at Ar-
kansas Rice, is without merit in view of the Board's
finding of surface bargaining; and (3) to establish
union animus , as demonstrated by Respondents'
past conduct. These prior cases, and the findings in
each, are set forth seriatim:
On August 22, 1966, in a case reported as 160
NLRB 309, the Board found that Arkansas Grain,
at Helena, had coercively interrogated employees
and had discriminatorily discharged an employee,
in derogation of the provisions of Section 8(a)(1)
and (3 ) of the Act. A petition for enforcement is
presently pending before the Eighth Circuit Court
of Appeals.
On February 10, 1967, in a case reported as 162
NLRB 1576, the Board found respondent Arkansas
Rice, at Stuttgart, had threatened an employee with
reprisals, had imposed more arduous working con-
ditions, and had discriminatorily discharged an em-
ployee, in derogation of the provisions of Section
8(a)(3) and (1) of the Act.
On March 28, 1967, in a case reported as 163
NLRB 625, the Board, as set forth supra, found that
respondent Arkansas Grain, at Stuttgart, had en-
gaged in a Joy Silk Mills' type violation and issued a
bargaining order. The Board found, inter alia, that
respondent rejected the principle of collective bar-
gaining and undertook to undermine the union
majority and prevent a fair election, by warnings to
employees that it would never recognize the union
or sign a contract with it, even if the employees
voted for a union or went on strike to obtain a
union contract, and, in addition, conducted coer-
cive interrogation, engaged in surveillance, and
threatened employees with discharge and other
reprisals.
On June 19, 1967, in a case reported as 165
NLRB 577, after the close of the hearing herein,
the Board found respondent Arkansas Rice, at both
Stuttgart and Jonesboro, had failed and refused to
bargain in good faith by, inter alta, (1) failing to
supply requested relevant data, to the Union, (2)
refusing to negotiate in good faith, and (3)
negotiating in bad faith with no intention of enter-
ing into any final or binding collective-bargaining
agreement . The specific finding that Respondent
engaged in "surface bargaining with no intention of
entering into final and binding collective bargaining
agreements with the Union, for either Stuttgart or
the Jonesboro plants ," patently bars consideration
of Respondent's contention of "impasse," herein,
relative to the events predating the hearing in the
preceding case , which occurred on December 6
and 7, 1966. I so find.
On June 28, 1967, in a case reported as 166
NLRB 1 1 1 after the close of the hearing herein, the
Board found that respondent Arkansas Grain at
Helena by threatening employees with discharge
and with implementation of more stringent working
conditions, by declaring the futility of collective
bargaining , by threatening employees with
discipline in the event they engage in union solicita-
tion, without specifying that such solicitation is for-
bidden only during working hours, by discrimina-
torily harassing employees with reprimands and
warnings which could lead to their discharge, and
by coercively interrogating employees, had engaged
in conduct in derogation of Section 8(a)(1) and (3)
of the Act.
The Unilateral Modification of the Blue Cross and
Blue Shield Program
On approximately January 1, 1967, and within a
few days thereafter, Respondents distributed to
each of its employees a "Memorandum" over the
signature of L. C. Carter, executive vice president
and general manager of Arkansas Rice, relative to
a modification of its Blue Cross and Blue Shield
' Job Silk Mills, Inc , supra
ARKANSAS GRAIN CORPORATION 1747
hospitalization coverage.8 The memorandum sets
forth, inter alia : That the charge for hospital rooms
has increased, that the employee could have a seri-
ous financial loss if not adequately protected;
Respondents had entered into discussions with the
carrier "on how we could best improve our policy
to meet the needs of our employees"; a decision
has been reached resulting in a "major improve-
ment"; effective January 1, 1967, the room al-
lowance has been increased from $10 a day to $16
a day, and the $20-per-day room limitation on
major medical has been increased to an unlimited
room allowance; and the latter is explained as
meaning the employee will be reimbursed for 80
percent of the difference between the $16 per day
basic room allowance and the actual cost, while the
prior contract permitted recoupment of 80 percent,
limited to the difference between $10 and $20 per
day. The memorandum noted that Respondents
would continue paying the cost of the employees'
hospitalization coverage, and that employees who
had family memberships would be required to pay
$7 per month, as compared to a former payment of
$5.85 per month, for this coverage.
It is undisputed that the first notice the Union
received of this modification of the Blue Cross and
Blue Shield program was on January 9, 1967, when
a member of the Union gave a copy of Carter'^
memorandum to Gerchak. Gerchak credibly re-
lated that immediately preceding a negotiating ses-
sion relative to the Arkansas Grain unit, at Helena,
on January 9, he was given a copy of the Carter
memorandum, by a member of that unit. While
Clark, Guffin, and Higginbothom were present for
Respondents at that meeting, no reference was
made to the insurance program during the meeting.
Respondents' personnel manager, Guffin, related
that Respondents entered into its initial Blue Cross
and Blue Shield program in 1959. That policy pro-
vided, inter alia , allowance for a semiprivate room
at $10 per day which, purportedly, was the state-
wide average charge, in the State of Arkansas, at
that time. Guffin asserted that with the advent of
Medicare, which became effective in July 1966,
with a purported Government insistence that
hospitals make reasonable charges for reasonable
service, as distinguished from the hospitals' alleged
traditional practice of keeping the room charge
down and making up the difference with dispropor-
tionate charges for other services, hospital boards
began changing the cost of semiprivate room and
other hospital charges. The end result, in Arkansas,
was an increase in the average statewide
semiprivate room rate from $10 a day to $16 a day.
Guffin acknowledged that Respondents were
notified by Blue Cross and Blue Shield, on an un-
specified day in November 1966, that there would
be a premium change, essential to the continuance
of the existing hospitalization and medical
coverage. It is undisputed that the monthly cost,
per employee, all of which was paid by Respon-
dents, was increased from $4.25 per month to
$5.40 per month, effective the first payroll period
ending in January 1967. It is undisputed that the
family benefit plan, which is optional with the em-
ployee, and entirely at the employee's expense, was
likewise increased, simultaneously, $1.15 per
month, per participating employee.
It is undisputed that Respondent Arkansas Grain
had a contract negotiating meeting with the Arkan-
sas Grain unit in Helena, on November 30, 1966,
and the Union was not notified of the proposed
Blue Cross and Blue Shield modification, at that
meeting , or in any other manner, prior to January
9, 1967. While it is obscure as to whether Respon-
dent Arkansas Rice had knowledge of the proposed
modification in the Blue Cross and Blue Shield pro-
gram at the time of its last negotiation meeting
prior to January 1 at Stuttgart on November 23, it
is patent that the Union was not notified of the
proposed change, by Respondent Arkansas Rice, at
any time prior to January 9, 1967, insofar as the
modification related to the separate units at Stutt-
gart and Jonesboro.
Concluding Findings
It is alleged that Respondents, in derogation of
the provisions of Section 8(a)(5) and (1) of the
Act, refused to bargain with the Union, as the ex-
clusive collective-bargaining representative, for the
employees in the four separate units described, by
unilaterally changing the medical and hospitaliza-
tion insurance benefits, on or about January 1,
1967, and thereafter by refusing to meet with the
Union and bargain with respect to the changes al-
redy instituted.
It is patent that there was no change in "bene-
;fits," rather there was a renegotiation of the
cost of existing benefits, without advice or notice to
the Union, prior to the modification being placed in
effect. The modification, insofar as the employees,
in each of the units, were concerned was the up-
ward revision of the monthly cost of the monthly
cost of the dependents program, in the amount of
$1.15 per month, per participating employee.
Respondents assert a variety of inconsistent
defenses. At the outset of the hearing, Respondents
8It is undisputed that there are approximately 1,250 employees in
Respondents ' various plants, in Arkansas , and of these approximately 800
are eligible for the insurance program Those ineligible are new employees,
and the ineligibility results from a requisite waiting period of 6 months
after employment It is obscure and unimportant whether the memoran-
dum was distributed to the ineligible employees
Arkansas Rice, at Stuttgart, has approximately 450 employees, all of
whom are covered by the insurance program, and 250 of them are in that
unit Arkansas Rice, at Jonesboro, has from 100 to 120 employees all of
whom are covered under the program, approximately 90 of whom are in
that unit Arkansas Grain, in Stuttgart , has a total of 90 employees covered
under the insurance program , and 80 of these are in that unit
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserted , relative to the Arkansas Rice units at
Stuttgart and Jonesboro , that it had bargained to a
true impasse and therefore was free to make a uni-
lateral change , if this was a unilateral change.
Respondents appear to have abandoned this con-
tention in its brief . Since the brief was filed on June
22, 1967 , and the Board issued its finding of "sur-
face bargaining ," rejecting Respondents ' conten-
tion of " impasse " on June 19, set forth supra, it is
reasonable to assume that knowledge of the Board's
decision explains this abandonment . In any event,
there is no claim that an "impasse " existed relative
to the Arkansas Grain units . I find no merit in this
asserted defense.
Respondents urge that it was confronted with a
"necessity for the adjustment or change in the in-
surance plan ," to maintain the coverage it
originally undertook to provide . The premise may
be factually accurate , and insofar as this record
reveals the facts are not challenged ; however, this
does not consititute an explanation of Respondents'
failure to advise and meet with the Union concern-
ing the change , prior to its effectuation . In the light
of the Board 's finding , in the case reported as 165
NLRB 577, that respondent Arkansas Rice at-
tempted to undermine the Union as the collective-
bargaining representative of the employees, this
conduct would appear as a less than subtle effort by
the Respondents to demonstrate the ineffectiveness
of the Union and to disparage the efforts of the
latter to carry out its statutory duties.
Respondents allude to , and would rely upon, a
statement made by Gerchak , chief negotiator for
the Union , at the negotiation sessions at Arkansas
Rice in Stuttgart in March 1966, that the Union
had no objection to any changes in the program
that amounted to improvements and that Respon-
dents could make changes in the insurance program
at any time . Gerchak acknowledged having agreed
that the insurance program which was in effect
would continue for the duration of the contract,
when entered into . Similarly, Gerchak
acknowledged that during negotiations at Arkansas
Grain , at Helena , the Union agreed that for the du-
ration of the contract , and "when arrived at," that
they would accept the insurance program in effect.
While Gerchak asserted he had no clear memory he
acknowledged that he "probably " agreed that the
Company could make changes or improvements in
the insurance program . Respondents, for these
reasons , assert that the Union is now estopped to
complain or allege unfairness . Obviously these were
no more than tentative interim agreements, depen-
dent upon conclusion of collective -bargaining
agreements , and were not a carte blanche for the
Citing W W Cross and Company, Inc v N L R B, 174 F 2d 875 (C A
1), Standard Oil Company, 92 NLRB 227, Inland Steel Company, 77 NLRB
1, enfd 170 F 2d (C A 7), cert denied 336 U S 960
10 Citing N L R By Benne Katz, dlbla Williamsburg Steel Products Co ,
369 US 736
11 Id at 743
Company to modify the existing insurance program,
without either advice to or consultation with the
Union . Even were there merit , which I do not find,
in the assertion that the Union is estopped , it is the
General Counsel , not the Union , who is charged,
under the Act, with the responsibility for the
prosecution of alleged violations . No claim that
General Counsel is estopped is asserted . For the
reasons stated , I find no merit in this asserted
defense.
General Counsel correctly asserts that it is settled
beyond argument that a group medical and
hospitalization insurance plan is a subject about
which an employer is required to bargain ,' and that
a unilateral change in such a program is a violation
of Section 8(a)(5) and ( 1) of the Act , without re-
gard to Respondents ' alleged "good faith " in taking
the unilateral action.10
The Supreme Court has stated . " A refusal to
negotiate in fact as to any subject which is within §
8(d), and about which the union seeks to negotiate,
violates §8 ( a)(5) though the employer has every'
desire to reach agreement with the union upon an
overall collective agreement and earnestly and in
all good faith bargains to that end . We hold that an
employer 's unilateral change in conditions of em-
ployment under negotiations is similarly a violation
of §8(a )( 5), for it is the circumvention of the duty
to negotiate which frustrates the objectives of §
8(a)(5) much as does a flat refusal ." The Court
also stated : " Unilateral action by an employer
without prior discussion with the union does
amount to a refusal to negotiate about the affected
conditions of employment under negotiation, and
must of necessity obstruct bargaining , contrary to
the congressional policy . It will often disclose an
unwillingness to agree with the union . It will rarely
be justified by any reason of substance . It follows
that the Board may hold such unilateral action to
be an unfair labor practice in violation of §8(a)(5),
without also finding the employer guilty of over-all
subjective bad faith.""
General Counsel correctly notes that Respon-
dents agreed to and placed in effect the changes in
the insurance program without notifying the Union,
even though the parties were in contract negotia-
tions at the time the Respondents were discussing
these changes with the insurer.t3
Accordingly , for the reasons stated, I find
Respondents ' unilateral modification of the existing
medical and hospitalization insurance benefits,
without notice to the Union , at a time when
negotiations were in progress , was an unfair labor
practice within the meaning of Section 8(a)(5) and
(1) of the Act.
" Id at 747
" While, as noted by General Counsel, Respondents ' memorandum to
the employees, of January I, 1967, characterized the changes as "major
improvements ," at the hearing Respondents sought to downgrade the
modifications to a description of "simple administrative changes " I find it
unnecessary to resolve the accuracy of either characterization
ARKANSAS GRAIN CORPORATION 1749
The Walkout of February 7, 1967, and Related
Events
It is undisputed that the first discussion, between
either Respondent and the Union, relating to the in-
surance change, occurred on February 1, 1967,
near the termination of a collective-bargaining
negotiation meeting of the Arkansas Grain unit, in
Helena . What actually occurred at that time, rela-
tive to the insurance program, however, is
somewhat in dispute.
According to Gerchak, he asked the Respondents
"why they didn't tell the Union about these
changes , in view of the fact that these changes had
been arrived at, or agreed upon, by Mr. Carter and
the insurer as of January the 1st, and that we had
had negotiating session late in November, and dur-
ing the month of January, and if the Company had
been dealing or bargaining as they should be, then
certainly the Company should have notified the
Union about the fact that there were changes pend-
ing, and at least discussed the possible changes or
what the changes would be in the new insurance
program ." Gerchak asserted that Clark did not
offer any explanation of the failure to notify the
Union, "except that they now offered to discuss the
insurance plan with the Union and suggested that
we meet in a series of meetings in Stuttgart,
Jonesboro and Helena to explain to the negotiating
committees, in those respective plants, the changes
and how they would affect our employees."
Gerchak asserted that the Company suggested a se-
ries of meetings beginning February 7, in Stuttgart,
with later meetings to be held in Jonesboro and in
Helena, "a series of three different meetings."
Gerchak related that he suggested that this would
be a waste of time and that the changes could be
explained "to the committees in one session." Ac-
cording to Gerchak, Clark objected and insisted
that all three meetings be held separately, however,
he indicated that he might consider consolidating
Jonesboro and Stuttgart into one meeting . Gerchak
asserted that Clark indicated that after the "ex-
planations" had been given, if the Union was un-
happpy about them, the Company would un-
willingly rescind them. Gerchak acknowledged the
Stuttgart meeting , by agreement, was scheduled for
February 7, 1967, however, Gerchak denied that
there was any agreement for separate meetings of
the three units. Later, Gerchak acknowledged that
Clark had suggested February 20, 1967, as the date
for a meeting in Helena , but could not "remember"
if that date was agreed to, asserting that he was still
continuing to raise an objection to the series of
meetings of the three plants and still insisting "that
we have a meeting combined in the one plant to
save a series of meetings." Gerchak asserted, "I
have other things to do than meet on the same issue
when I can do it all at one meeting."
Jimmie Ward is an employee of Arkansas Grain
at Helena, and was a member of the negotiating
committee of that unit, and was present during the
discussion of February 1, 1967. Ward asserted that
there was no agreement, on February 1, between
Gerchak and Clark as to whether Nathan Edwards,
who was president of Local 204, in Helena, and a
member of that negotiating committee, would or
would not attend the February 7 meeting in Stutt-
gart. Ward acknowledged that Clark advised that
Respondent wanted separate meetings to discuss
the insurance issue . Ward acknowledged that a
meeting at Helena was scheduled for February 20,
1967, at the February 1 meeting, but asserted it was
for the purpose of negotiating between the Union
and the Company, and there was no agreement that
the February 20 meeting would be utilized to
discuss the insurance issue. To the extent Gerchak
was unable to recall an agreement, reached on
February 1, to meet in Helena on February 20, I do
not credit his testimony. 19
Attorney Clark, who is the chief negotiator for
Respondents, acknowledged that, on February 1,
Gerchak had voiced objections to the Company's
,having changed the insurance program without
notice to the Union. Clark credibly asserted that he
saw no reason not to place the entire matter on the
bargaining table and discuss it fully with the Union
and to give them the opportunity to ask any
questions. He asserted the Company was willing to
open the whole matter and place it on the negotiat-
ing table. Clark acknowledged that Gerchak as-
serted that he desired to have all the negotiating
committees present at the proposed Stuttgart meet-
ing, scheduled for February 7. Clark asserted that
he stated Respondents' objections to a consolidated
meeting, with particular reference to Helena. Clark
asserted that Helena was a separate plant producing
a different product. Clark related that the question
of the Jonesboro unit representatives attending the
Stuttgart meeting was left open, and subsequently
agreed to, and Gerchak was so advised, prior to the
meeting, by Guffin. Clark asserted that it had been
agreed, on February 1, that Respondent would
" Nathan Edwards, formerly employed at Arkansas Grain, at Helena,
was separated , under circumstances which are of no consequence and are
obscure herein, 5 weeks prior to his testimony He was a member of the
negotiating committee and did attend the February 1 meeting Edwards as-
serted that nothing was said relative to "any negotiating member from the
Helena plant ," attending the February 7 Stuttgart meeting, at the Febeuary
I meeting Edwards also asserted that there was no discussion relative to
keeping the meetings separate that he could recall . In the light of the other
evidence in the record, particularly the testimony of Gerchak , I find the
recitation of Edwards incomprehensible and incredible
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meet with the Helena unit bargaining committee, in
Helena , on February 20.'5
Gerchak related that after the February 1 meet-
ing, and prior to the meeting of February 7,
Gerchak went to Little Rock, Arkansas, conferred
with a Mr. Presson, identified as president of Blue
Cross and Blue Shield, in Arkansas, and obtained
an assurance from Presson that the insurer was
willing to send someone to the February 7 meeting,
subject to Respondents' agreement.
On approximately Friday, February 3, 1967,
Gerchak sent a notice to all of the members of the
Arkansas Grain and Rice Workers Local Unions,
identified further as Local 201 in Stuttgart, Local
203 in Jonesboro, and Local 204 in Helena .'s In es-
sence, the notice stated that Respondents "in viola-
tion of the law changed your insurance and hospital
policy without bargaining with the Union." The
notice then stated that Respondents' attorney had
advised the Union that if the members did not like
the policy it would be rescinded- until the Union
and the Company could meet the insurance com-
pany to negotiate a new one. The notice then
stated:
Tuesday, February 7 the Company will meet
with the officers of your union in Stuttgart and
explain exactly what your new policy will do
for you. Resident Bonham of Jonesboro will
bring Hudson and Caples to Stuttgart and Pre-
sident Edwards of Helena will bring Vice Pre-
sident Ward.
The notice then stated there would be meetings of
the membership of the locals, in Stuttgart, Helena,
and Jonesboro, on Wednesday, Thursday, and
Friday, respectively, following the meeting
scheduled for Tuesday, February 7. The notice then
concluded:
If the majority of our members attend these
meetings [sic] decide to cancel the plan, Mr.
Carter will be so informed. If you are not at the
meetings we can only assume that you do not
like the plan and wish to have it cancelled.
Gerchak described the union representation at
the February 7, 1967, meeting as "all the members
of the negotiating committee,"" and enumerated
these as one delegate from Helena (Edwards),
three delegates from Jonesboro, and the seven
members of the Stuttgart (Rice) negotiating com-
" Personnel Manager John Gufrin corroborated Clark's version of the
events of February 1, particularly the fact that Respondent indicated a
willingness to meet with the Union , on February 7, in Stuttgart , that the in-
clusion of the Jonesboro unit was taken under consideration , with the
Union to be advised of Respondent 's attitude prior to the meeting , and par-
ticularly that a meeting was scheduled for February 20, at Helena, to
discuss and explain the insurance change However, I do not find credible
Guffin's assertion that Gerchak did not raise any objection to this schedule
of meetings
Guffin also corroborated the assertion of Clark , that, on February 1,
Clark announced his opposition to "one big negotiation session, " with all
three units
Helena Plant Manager William Edwards Higginbothom was unable to re-
late what was said on February I, and asserted that he could state his un-
derstanding of what was said I find it unnecessary to evaluate his
mittee. In addition, a Federal mediator identified as
Mille was present. Those representing Respondents
were Attorney Clark. Guffin, Mason, and Parks.
the latter being the manager of the Jonesboro
plant of Arkansas Rice.
Gerchak related the meeting commenced with
Attorney Clark voicing objections to Gerchak hav-
ing breached an agreement, which Gerchak as-
serted he had supposedly made in Helena, by in-
cluding Edwards, of the Helena unit, among those
attending the meeting. In addition, Clark accused
Gerchak of having acted in an underhanded
manner in approaching the insurer, after having
been assured by Clark that Clark would provide the
desired information "at this negotiating meeting."
Clark, according to Gerchak, also objected to the
mailing of the letter to the union members, asserting
the letter was designed only for the purpose of un-
dermining the Company and to make the Union
look like a hero. Gerchak asserted that he
responded that he had certain prerogatives and
rights, in obtaining all information in order to do a
proper job of negotiating, that his approaching the
insurers to ascertain the nature of the insurance
plan was not underhanded, that he had a right to
advise the employees that Respondents had vio-
lated the law, and to schedule union meetings to
explain to the members the information obtained at
the February 7 meeting. Gerchak acknowledged
"there was some more exchange or repartee,"
after which all four representatives of the Com-
pany walked out of the meeting.
It is undisputed that it was not until after the de-
parture of Respondents' respresentatives that Ed-
wards suggested to the mediator, Mille, that if his
presence was the reason for the meeting breaking
up that he would withdraw. Gerchak acknowledged
that Edwards' presence was the "main objection"
voiced by Clark. According to the Union, Mille
went into the hallway and upon return advised that
the company respresentatives had left. According
to the company representatives Mille met them in
the hallway and inquired as to the possible date of
another meeting, and said nothing else.1e This
evidence does not establish that the offer of
withdrawal was communicated to Respondents.
Subsequently, after an exhange of telegrams, by
agreement of the parties, Respondent Arkansas
testimony
i" It is obscure whether Local 201 includes both the Arkansas Rice and
Arkansas Grain plant in Stuttgart or is confined solely to the Arkansas
Rice plant
•• A slight inaccuracy in view of the fact that Vice President Ward, and
Bennett , from Helena, were not present
i" Mille did not appear as a witness and I find it unnecessary to resolve
this conflict , if it is a conflict
The recitation of Clark, relative to the events of February 7, do not vary
substantially from the recitation of Gerchak Clark acknowledged that the
inclusion of Edwards, from Helena, was the basis of Respondents ' objec-
tions, although , in addition , he did advise Gerchak that he considered
Gerchak 's letter to the membership misleading The recitation of Guffm is,
similarly, not unlike the recitation of Gerchak, relative to the events of
February 7
ARKANSAS GRAIN CORPORATION 1751
Rice and the union committees of the Stuttgart and
Jonesboro met at Stuttgart on February 13, and
Respondent Arkansas Grain and the union commit-
tee at Helena met on March 24 at Helena. It is un-
disputed that the Union was supplied the informa-
tion it requested at these meetings and by a
separate communication transmitted on approxi-
mately April 12.
Contentions of the Parties and Concluding Findings
The principal question presented is whether
Respondents were required, as a matter of law, to
meet, for the purpose of bargaining, with the
representatives of three separately certified plant
units in a joint bargaining session. The allegation of
the complaint is that Respondent committed an un-
fair labor practice by "refusing to meet and bargain
with the Union until and unless the Union removed
one of the members of its negotiating committee."
I have found, and the testimony of Gerchak,
which is corroborated by the testimony of Respon-
dents' witnesses, established that there was no
agreement for a combined meeting which would in-
clude the Helena unit. While it appears, un-
disputed, that Respondent included its Jonesboro
plant manager in a Stuttgart negotiating session on
August 11, 1966, relative to the Arkansas Rice
unit, and it appears that the Arkansas Rice meet-
ing of November 23, 1966, was a joint meeting,
of both the Stuttgart and Jonesboro units, all other
negotiating sessions involved single units. At no
time was there a negotiation session combining the
Arkansas Grain Helena unit with any other unit.
General Counsel incorrectly asserts the principal
reason for Respondents' walkout was Gerchak's
having contacted the insurance carrier and
Gerchak's February 3 letter, as revealed in Clark's
February 8 telegram. This assertion conflicts with
both the testimony of Gerchak and the contents of
the telegram. The telegram clearly states, "we,
therefore, saw fit to walk out until such time as you
were ready to discuse [sic] the matter per our
agreement, and you were so advised." Obviously,
this language could only relate to the presence of
Helena unit negotiators. The assertion also conflicts
with the allegation in the complaint and General
Counsel's opening statement.
Respondent correctly asserts the offer to
withdraw Edwards from the negotiating session was
not communicated to it on February 7.
Gerchak acknowledged there was no agreement
for a combined meeting of the three units on
February 7, that the Company objected to a com-
bined meeting , asserting that it wanted to keep the
meetings separate . It was Gerchak who described
the February 7 meeting as a "negotiation meeting"
at which all members of the three negotiating units
were present . This case is thus distinguishable from
the line of cases in which the Union sought the
assistance of "outsiders ," but the negotiations were
confined to the local unit.19
Had Respondents herein insisted upon conduct-
ing joint bargaining sessions with all three, or four
units, without the Union 's concurrence , such a de-
mand would obviously be found to constitute a
refusal to meet its statutory obligation . The fact
that the matter that was to be considered on
February 7 was a problem common to all three cer-
tified units does not enlarge Respondents ' statutory
obligation . The Board has recently reaffirmed its
finding that a respondent may lawfully attempt to
obtain the union 's agreement to an alteration of a
bargaining unit ; however , insistence on such a
pproposal , after rejection by the union , was found to
be violative of Section 8(a)(5) and (1) of the
'Act.20 A fortiori, the Union has no more right than
Respondent to insist upon joint bargaining of
separately certified units.
The Board has found a union 's attempt to enlarge
a certified unit, resulting in an impasse constituted
conduct violative of Section 8(b)(3).21 In that case,
the Board held that to permit the ILA to do so
would frustrate the Board's statutory duty to deter-
mine the appropriate unit . 22 What the Union at-
tempted herein was no different , the Board did not
certify a combined unit.
Section 8(a)(5) defines as an unfair labor prac-
tice, "to refuse to bargain collectively with the
representatives of his employees , subject to the
provisions of Section 9(a)." Section 9(a) defines
the term " representatives " as those designated or
selected for the purposes of collective bargaining
by the majority of the employees " in a unit ap-
propriate for such purposes ." Section 9(b) em-
powers the Board to determine the unit appropriate
for the purposes of collective bargaining , including
specifically an employer unit , a plant unit , or other
units, "in order to assure the employees the fullest
freedom in exercising the rights guaranteed by this
Act."
It is patent that the intent of Congress in adopt-
ing Section 8(a)(5) was, as clearly stated, to
require the employer to bargain collectively with a
majority representative of the employees in a unit
appropriate.23
It may be urged in the light of Respondents'
previous unfair labor practices that Respondents
i9 See American Radiator and Standard Sanitary Corporation, 155 NLRB 21 International Longshoremen's Association, 118 NLRB 1481
736, enfd denied 381 F 2d 632 (C A 6, August 8, 1967), Standard Oil 22 Id at 1491, see also Douds v International Longshoremen's Associa-
Company, 137 NLRB 690, enfd 322 F 2d 40 (C A 6) tion, 241 F 2d 278 (C A 2)
10 Delhi-Taylor Refining Division , Hess Oil and Chemical Corporation,
13 Legislative History of the National Labor Relations Act, 1935
167 NLRB 115, fn 4 (August 17, 1967), citing N L R B v Wooster Divi- Volume 2, pp 2649-50, HR 6288, 74th Cong 1st session
sion of Borg-Warner Corporation, 356 U S 342
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are predisposed not to bargain in good faith. The
Supreme Court has held that earlier events may be
utilized when the evidence of events within the
statutory period is not substantial.24 The obvious
answer is that such prior findings neither enlarge
nor diminish Respondents' duties under the Act.
Having found that Respondents are not required
to bargain in a joint meeting with separately cer-
tified units, I find Respondents did not, as alleged,
refuse to meet and bargain with the Union on
February 7, 1967, within the meaning of Section
8(a)(5) and (1) of the Act, and I will, accordingly,
recommend dismissal of the allegations of para-
graph 16(2) of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in sec-
tion III, above, occurring in connection with the
operations described in section I, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondents have engaged
in certain unfair labor practices, I will recommend
that they cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondents have refused to
bargain with the Union in violation of Section
8(a)(5) and (1) of the Act, I shall recommend that
they be ordered to bargain with the Union, upon
request, as the exclusive representative of all of
their employees, in each of the appropriate units,
concerning any change in the existing medical and
hospitalization insurance plan or plans.
It is further recommended that Respondents be
ordered to cease and desist from in any like or re-
lated manner infringing upon rights guaranteed to
its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact
and upon the entire record of the case, I make the
following:
CONCLUSIONS OF LAW
1. Respondents are employers engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. International Union of United Brewery, Flour,
Cereal, Soft Drink and Distillery Workers of Amer-
ica, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees in the production and main-
tenance departments at Respondent Arkansas
Rice's Stuttgart, Arkansas, facilities, but excluding
guards, professional and clerical employees, and su-
pervisors as defined in the Act, constitute an ap-
propriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. All production and maintenance employees at
Arkansas Rice's Jonesboro, Arkansas, plant, ex-
cluding guards, professional and clerical employees,
and supervisors as defined in the Act, consititue an
appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
5. All production and maintenance employees at
Respondent Arkansas Grain's Helena, Arkansas,
plant, excluding guards, office clerical employees,
and supervisors as defined in the Act, constitute an
appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
6. All employees in the production and main-
tenance departments at Respondent Arkansas
Grain's Stuttgart, Arkansas, plant, excluding all
laboratory employees, office clerical employees,
professional employees, watchmen, guards, and su-
pervisors as defined in the Act, constitute an ap-
propriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
7. The Union has been the exclusive representa-
tive of all employees for the purposes of collective
bargaining in the aforesaid unit for the Stuttgart
plant, of Arkansas Rice, on and after November 18,
1965, and in the aforesaid unit for the Jonesboro
plant, on and after March 3, 1966, and in the
aforesaid unit for the Helena plant, on and after
September 21, 1966, and in the aforesaid unit for
the Stuttgart plant, of Arkansas Grain, on and after
February 3, 1966, within the meaning of Section
9(a) of the Act.
8. By unilaterally changing existing medical and
hospitalization insurance benefits and failing and
refusing to meet with the Union, as the exclusive
collective-bargaining representative for the em-
ployees, in each of the appropriate units described
herein, with respect to the changes, Respondents
have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a)(5) of
the Act, and have thus interfered with, restrained,
and coerced their employees in the exercise of
rights guaranteed in Section 7 of the Act, and have
thus engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
9. Respondents have not engaged in unfair labor
practices, within the meaning of Section 8(a)(5)
and (1) of the Act, by failing and refusing to meet
2' Local Lodge No 1424, International Association of Machinists ( Bryan Manufacturing Co ] v N L R B , 362 U S 411.
ARKANSAS GRAIN CORPORATION
and bargain with the Union, in a combined negotia-
tion session in which three of said units were jointly
represented, on February 7, 1967.
10. The aforesaid unfair labor practices are un-
fair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
1753
the said Regional Director, in writing, that it will
comply with the foregoing Recommended Order
the National Labor Relations Board issue an order
requiring Respondents to take the aforesaid action.
IT IS FURTHER RECOMMENDED that the allegations
of the complaint contained in paragraph 16(2) be
dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in the case, I recommend that the Respondents, Ar-
kansas Grain Corporation and Arkansas Rice
Growers Cooperative Association, their agents, suc-
cessors, and assigns , shall be ordered to:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively
with respect to changes in existing medical and
hospitalization insurance benefits with the Union,
as the exclusive representative of its employees in
each of the appropriate units.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their right to self-organization, to form
labor organizattions, to join or assist International
Union of United Brewery, Flour, Cereal, Soft Drink
and Distillery Workers of America, AFL-CIO, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
Union, as the exclusive representative of the em-
ployees in each of the above-described appropriate
units, with respect to any modification of the medi-
cal and hospitalization insurance program.
(b) Post at their places of business in Stuttgart,
Jonesboro, and Helena, Arkansas, copies of the at-
tached notice marked "Appendix."25 Copies of said
notice, on forms provided by the Regional Director
for Region 26, after being duly signed by the
Respondents' authorized representative, shall be
posted by Respondents immediately upon receipt
thereof, and be maintained by them for 60 consecu-
tive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith. 26
IT IS FURTHER RECOMMENDED that unless within
20 days from the date of the receipt of this Trial
Examiner's Decision, the Respondents shall notify
25 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words " a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
26 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondents
have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that:
WE WILL NOT fail or refuse to bargain with
International Union of United Brewery , Flour,
Cereal , Soft Drink and Distillery Workers of
America , AFL-CIO, as the representative of
our employees in each of the units described
below. The bargaining units are:
All employees in the production and
maintenance departments at the Arkansas
Rice Stuttgart , Arkansas , facilities, but ex-
cluding guards , professional and clerical
employees , and supervisors as defined in
the Act.
All production and maintenance em-
ployees at the Arkansas Rice Jonesboro,
Arkansas, plant , excluding guards, profes-
sional and clerical employees , and super-
visors as defined in the Act.
All production and maintenance em-
ployees at the Arkansas Grain Helena, Ar-
kansas , plant, excluding guards , office
clerical employees, and supervisors as
defined in the Act.
All employees in the production and
maintenance departments at the Arkansas
Grain Stuttgart , Arkansas, plant , excluding
all laboratory employees, office clerical
employees, professional employees,
watchmen , guards , and supervisors as
defined in the Act.
354-126 O-LT - 73 - pt. 2 - 39
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain collectively
with International Union of United Brewery,
Flour, Cereal, Soft Drink and Distillery Wor-
kers of America, AFL-CIO, as the exclusive
representative of all the employees in each of
the above-described bargaining units with
respect to any changes in the existing medical
and hospitalization insurance plan.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their rights to self-or-
ganization, to form labor organizations, to join
or assist International Union of United
Brewery, Flour, Cereal, Soft Drink and Distil-
lery Workers of America, AFL-CIO, or any
other labor organization, to bargain collective-
ly through representatives of their own choos-
ing, and to engage in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any and all such activities.
ARKANSAS GRAIN
CORPORATION AND
ARKANSAS RICE GROWERS
COOPERATIVE
ASSOCIATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 746 Federal Office Building, 167 North
Main Street , Memphis, Tennessee 38103, Tele-
phone 534-3161.