Barlett-Collins Co.

National Labor Relations Board - Board Decisions

Jun 13, 1977

230 N.L.R.B. 144 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bartlett-Collins Company and American Flint Glass
Workers' Union of North America, AFL-CIO,
Local No. 716. Case 16-CA-5809
June 13, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On June 30, 1976, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, the Charging
Party filed its answer and cross-exceptions with a
supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions 2 of the Administrative Law
Judge to the extent consistent herewith3 and to adopt
his recommended Order, 4 except as modified below.
AMENDED REMEDY
The Administrative Law Judge, inter alia, ordered
reinstatement of striker Douglas Bell and backpay
accruing from the date of his discharge. We disagree
with this recommendation, since it does not conform
to established Board policy limiting backpay awards
to unlawfully discharged strikers.5 The Administra-
tive Law Judge found that Bell was on strike at the
time of his discharge. He did not find that Bell ever
unconditionally applied for reinstatement, nor does
the record support such a finding. Moreover, the
Administrative Law Judge found, and the record is
clear, that the strike had not ended. Accordingly, Bell
I The Respondent 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
credibility 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 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
There are, however, two instances in which the Administrative Law Judge's
findings warrant correction: (1) There is reference in the Decision to
testimony by employee Mattie Thomas in confirmation of employee Joanne
Harper's testimony. The record indicates that no witness named Mattie
Thomas testified at the Board hearings, and we so find. The absence of such
evidence does not fatally affect the Administrative Law Judge's credibility
finding with respect to Harper. (2) Contrary to the Administrative Law
Judge, we find that discriminatee Douglas Bell did not deny receipt of a
Christmas bonus check which he did in fact receive from the Respondent. In
our opinion, the correction further strengthens the Administrative Law
Judge's finding with respect to Bell's overall credibility.
2 The Administrative Law Judge failed to discuss the evidence pertaining
230 NLRB No. 18
is entitled to the same compensatory rights and
privileges as all other unfair labor practice strikers
involved. To this end, we shall modify the Adminis-
trative Law Judge's recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Bartlett-Collins Company, Sapulpa, Oklahoma,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as herein modified:
i. Substitute the following for paragraph 2(a):
"(a) Offer to Floreine Aggers immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of
earnings she may have suffered by reason of the
discrimination against her, in the manner set forth in
the section of this Decision entitled 'The Remedy.' "
2. Insert the following as paragraph 2(b), and
reletter the subsequent paragraphs accordingly:
"(b) Make whole Douglas Bell for any losses he
may have suffered by reason of his discharge in the
manner set forth in the section of the Board's
Decision entitled 'Amended Remedy.' "
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
I dissent from the majority's conclusion that in the
circumstances of this case the purposes of the Act
will be effectuated by denying Bell, the unlawfully
discharged striker, backpay because of his failure to
request reinstatement. An unlawfully discharged
striker is nevertheless an unlawfully discharged
employee. Where a strike is not involved and an
to whether Respondent's supervisor, Clyde Adams, threatened employee
Aubrey Fleming in violation of Sec. 8(aXl) of the Act. In view of the
violations found and the broad cease-and-desist order which we employ, we
find it unnecessary to decide whether Respondent also violated Sec.
8
(aX1)
by Adams' alleged threat to Fleming.
3 Member Walther concurs in the result reached with respect to the
8(aX5) "surface bargaining" violation found herein for the reasons stated in
Chairman Miller's concurrence in The Adrian Daily Telegram, a Division of
Thompson Newspapers, Inc., 214 NLRB 1103 (1974).
4 As indicated by par. I(e) of the recommended Order, the Administra-
tive Law Judge, who properly found an 8(a)(l) violation in Respondent's
furnishing free work gloves to the nonstriking employees in the "hot end"
department, inadvertently failed expressly to find that this was unilateral
action which violated Sec. 8(aX5). The record warrants such a finding and it
is hereby made.
I Mid-West Paper Products Co., 223 NLRB 1367 (1976); Valley Oil Co.,
Inc., 210 NLRB 370 (1974); Sea-Way Distributing, Inc., 143 NLRB 460
(1963).
144
BARTLETT-COLLINS COMPANY
employee is unlawfully discharged, the employer is
required to make a valid offer of reinstatement to toll
backpay. An employer has no less an obligation
when the employee is unlawfully discharged for
participation in a lawful strike, particularly where, as
here, the Employer's unfair labor practices precipi-
tated or at least prolonged the strike. Thus, the
existence of the strike is no reason to shift the burden
to the employee to establish that he is available for
employment; the Employer has made it abundantly
clear by his unlawful discharge that he will not be
taken back. The burden of undoing the wrong must
be placed on the wrongdoer lest we permit the
Employer to undermine and inhibit the fundamental
Section 7 right to engage in concerted activity.
Prior to his discharge, Bell had the right like any
other employee to choose whether he would report to
work during the strike or honor the picket line.
However, when Respondent unlawfully discharged
Bell, it deprived him of this fundamental right to so
choose and, as a result, it becomes difficult, if not
impossible to determine whether Bell would have
continued to strike and, if so, for how long, had the
opportunity to return to work been available to him.
This uncertainty is a product of the Respondent's
unlawful conduct and any doubts which cannot be
resolved factually should by law be resolved against
the wrongdoer.
The discriminatee in this case should be entitled to
backpay from the date of discharge until the date he
receives a valid offer of reinstatement, absent
affirmative evidence establishing a willful loss of
earnings. Whether this unlawfully discharged em-
ployee has been unavailable because he was striking
or for other reasons is a question to be resolved in a
compliance proceeding in the same manner as any
other willful loss of earnings incurred by an unlaw-
fully discharged employee. The burden, however, is
on the Respondent not only to offer reinstatement or
demonstrate that an offer has been made, but also to
prove willful loss of earnings.
I would order the Employer to reinstate the
unlawfully discharged employee with backpay from
the date of discharge, subject to normal offset
considerations.
In all other respects, I agree with the conclusions
reached by my colleagues. 6
6 1 agree with my colleagues' finding that Respondent violated Sec.
8(a) I) of the Act by its enforcement of an overly broad no-solicitation rule.
However, I reach this conclusion independent of any consideration of the
distinctions drawn in Essex International. Inc., 211 NLRB 749 (1974), for the
reasons expressed in my dissent therein.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question any of our employees
about their union activities or membership or
their attitude toward American Flint Glass
Workers' Union of North America, AFL-CIO, or
its Local No. 716.
WE WILL NOT make threats, including threats of
loss of jobs or loss of pension rights to any of our
employees for their support of or their participa-
tion in activities on behalf of or their sympathies
for the aforesaid Union.
WE WILL NOT threaten our employees for
soliciting membership on behalf of the said Union
provided the said employees may not solicit on
behalf of the said Union or on behalf of any other
cause on working time.
WE WILL NOT offer free work gloves to any
employees in any department of our plant unless
and until we furnish free work gloves to the
employees in the "Hot End" also known as the
"Front End" or the "Forming Department."
WE WILL NOT discharge any of our employees
for engaging in any union or concerted activity on
behalf of the aforesaid Union or any other union.
WE WILL NOT give our employees the impres-
sion that we are spying on their activities with
regard to any union activity including union
meetings.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to form, join, or assist, or be
represented by American Flint Glass Workers'
Union of North America, AFL-CIO, or any other
labor organization, to bargain collectively
through representatives of their own choosing or
engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activity.
WE WILL NOT refuse to bargain in good faith
with the Union named above.
WE WILL offer to Floreine Aggers immediate
and full reinstatement to her former position or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to her
seniority or other rights and privileges, and we
WILL make her whole for any loss she may have
suffered as a result of our discrimination against
her.
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make Douglas Bell whole for any loss
he may have suffered as a result of our discrimi-
nation against him.
WE WILL also reinstate all strikers who notify
us that they unconditionally offer to return to
work, within 5 days after we receive such
unconditional offer, and WE WILL give to such
strikers who make such offers and who we fail to
reinstate within the said 5 days full compensation
for each day beyond 5 days that we fail to
reinstate them. Further, in order to reinstate them
to their former or equivalent positions, WE WILL,
if necessary, discharge any individuals who have
replaced the said strikers.
WE WILL, upon request, bargain collectively
with American Flint Glass Workers' Union of
North America, AFL-CIO, or any of its represen-
tatives including Local No. 716, as the exclusive
bargaining representatives of our employees with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment, and, if an understanding is reached with the
said American Flint Glass Workers' Union of
North America, AFL-CIO, embody such under-
standing in a signed agreement. The unit of our
employees for whom we will negotiate with the
aforesaid Union is as follows:
All senior machine operators, press machine
operators, press machine helpers, pace ma-
chine operators, pace machine helpers,
tankmen, tankmen trainees, turnouts, floor
boys, production clerks, oilers, repairmen,
senior mechanics, mechanics-repairmen, me-
chanics-welders, machinists, machinists
learners, and other employees regularly
employed in the forming department (which
is also known as the Front End) at our
Sapula, Oklahoma, plant, excluding all other
employees including office clerical, other
plant production and maintenance employ-
ees, moldmakers, professional and technical
employees, watchmen, guards, tankmen and
other supervisors as defined in the National
Labor Relations Act, as amended.
In connection with the aforesaid request to bargain
and offer to bargain with the aforesaid Union, we
have been notified that it has been ordered by the
National Labor Relations Board that the certifica-
tion year of the American Flint Glass Workers'
Union of North America, AFL-CIO, as the bargain-
ing representative of the unit described, above, is
'All dates herein are in the year 1974, unless otherwise specifically
noted.
2 The Respondent's motion to correct the transcript, opposed in part by
extended for a period of I year from the date we
commenced to bargain in good faith with the said
Union in order to give to our employees represented
by the said Union in the above-described unit full
and complete opportunity to arrive at a just and
honorable collective-bargaining agreement with us.
All our employees are free to become or remain or
refrain from becoming or remaining members of the
American Flint Glass Workers' Union of North
America, AFL-CIO, and its Local No. 716, or any
other labor organization, except to the extent that
this right may be affected by an agreement in
conformity with Section 8(aX3) of the National
Labor Relations Act, as amended.
BARTLETT-COLLINS
COMPANY
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
case was heard on 19 days between June 16 and October
23, 1975, upon an amended complaint issued on April 30,
1975, which complaint was based upon an original charge
filed by American Flint Glass Workers' Union of North
America, AFL-CIO, Local No. 716, herein called the
Union or Charging Party on October 21, 1974, and a first
amended charge filed by the Union on December 6, 1974.1
The amended complaint alleges that Bartlett-Collins
Company, herein called the Respondent or the Company,
has violated and is violating Section 8(a)(1), (3), and (5) of
the National Labor Relations Act, as amended, herein
called the Act. The Respondent's duly served answer to the
amended complaint, while admitting certain complaint
allegations, denies the commission of any unfair labor
practices.
After several extensions of time to file briefs were
granted because of the length of the record, all parties filed
voluminous briefs.
Upon the entire record in the case,2 the briefs of the
parties, and upon my observation of each witness, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, maintains its
principal place of business at Sapulpa, Oklahoma, where it
is engaged in the manufacture and sale of glass tableware
and other glass items. During the year immediately
preceding the issuance of the complaint herein, a represen-
tative period, the Respondent produced, sold, and shipped
glass products of a value in excess of $50,000 from its
Sapulpa, Oklahoma, facility directly to purchasers located
in States other than Oklahoma.
counsel for the General Counsel, is granted to the extent set forth in
Appendix B annexed hereto. [Appendix B omitted from publication.l
146
BARTLETT-COLLINS COMPANY
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues
The complaint alleges, and the General Counsel and
Charging Party contend, that the Respondent by bad-faith
negotiations, unilateral granting of benefits to employees,
refusal to meet at reasonable times, insistence in retaining
for itself management rights which would effectively render
the Union, the employees' certified representative, nullity,
by failing to respond to union proposals, other similar
negotiating tactics, and engaging in violative acts away
from the bargaining table, all for the purpose of undermin-
ing the Union, has refused, in violation of Section 8(a)(5) of
the Act, to bargain with the Union.
Additionally, the complaint alleges that the Respondent,
with the same purpose in view, has engaged in acts of
interference, coercion, and restraint of unit employees, and
others, by unlawful interrogation of employees' union
activities and sympathies, by threats of discharge and loss
of employment and retirement and other fringe benefits, by
creating the impression of surveillance, and discriminatori-
ly enforcing a no-solicitation rule, all in violation of Section
8(a)(1) of the Act.
Finally, they allege and contend that the Respondent, in
order to discourage union membership and union adher-
ence, has discriminatorily discharged three employees
because of their activities on behalf of and sympathies for
the Union in violation of Section 8(a)(3) and (1) of the Act.
Respondent denies all of the allegations set forth above,
contending that its bargaining attitude and approach to the
problem of reaching a suitable agreement has been
undertaken in good faith and in conformity with the Act
and Board and court precedent; that its officers, agents,
and supervisors have not engaged in any acts violative of
employees' Section 7 rights; and that two of the alleged
discriminatees were discharged for cause while the third
was never discharged at all.
B. Background-Respondent's Bargaining History
As noted, Respondent manufactures various types of
glass tableware and other molded glass items. The
operation is of the machine molding type. The plant is a
continuous operation plant divided, roughly, into three
departments. The first department for purposes of identifi-
cation is the moldmaking department in which the
employees, known as moldmakers, are highly skilled
individuals who have been represented by another local of
the same International Union, of which the Charging
Union herein is an affiliate. However, there has never been
a Bartlett-Collins Company, 140 NLRB 202(1962).
4 The information regarding the decertification and the date thereof is
a formal contract between the bargaining representative of
the moldmakers and Respondent.
There has been only an informal understanding between
the moldmakers as a group and the Respondent, with the
representative playing little part. Nevertheless, when the
employees in the unit represented by the Union, herein,
went out on strike, as hereinafter set forth, the moldmakers
honored the picket line.
The second department is the forming department or
"hot end" where the functions of melting the glass and the
forming of the glassware is accomplished by use of
machinery operated and supervised by the employees for
whom the International was certified and for whom the
Union herein seeks to obtain a collective-bargaining
agreement.
The third department is the selector/packer department,
whose employees inspect, select, and pack the products
made in the forming department by use of machines
known as lehrs. The Charging Union was in the process of
organizing these employees during the time the events
occurred with which this proceeding is involved.
To better assess the events and attitudes of the allegedly
unlawful conduct of the Respondent, additional history of
Respondent's labor relations becomes relevant as back-
ground. Between 1941 and 1951, the Respondent and the
International maintained a bargaining relationship encom-
passing a unit, basically, of all production and mainte-
nance employees with the exception of the moldmakers. At
the expiration of the contract in 1951, a strike ensued
lasting for 10 days. No contract was reached and evidently
the International did not represent the production and
maintenance employees thereafter, because in 1961, anoth-
er union, United Ceramic Glass Workers, was certified as
bargaining representative of the production and mainte-
nance employees.
However, the bargaining following the certification of
United Ceramic Glass Workers did not result in a
bargaining agreement. The Board found, in that instance,
that the Respondent had violated Section 8(a)5) of the Act
by failing to satisfy the 8(d) requirement of the Act that the
employer meet at reasonable times to bargain.3 Despite the
bargaining order in that case, dated December 20, 1962,
the United Ceramic Glass Workers Union was unable to
obtain a contract and was thereafter decertified sometime
in 1963. 4 Thus, between 1963 and June 10, 1964, the date of
the certification of the International as representative of
the employees here involved, none of the production and
maintenance employees of the Respondent, aside from the
moldmakers, were represented.
The International began an organizational drive among
the Respondent's employees in the forming department on
February 12, 1974. During the campaign, on March 4, the
Respondent granted a wage increase to all employees in the
plant. On March 14, the International filed a petition for
certification as bargaining representative of the forming
department, or "hot end," employees. Thereafter, the
International and the Respondent entered into a Stipula-
tion for Certification Upon Consent Election for a unit o,
the forming department employees despite the fact that,
taken from the testimony of Irving Bartlett, vice president and secretary of
the Respondent.
147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
historically, the International had formerly represented all
of the production and maintenance employees. A Board
election was thereafter held and the International was
successful. It was certified, as noted above, on June 10 for a
unit, found herein to be appropriate, described as follows:
All senior machine operators, press machine operators,
press machine helpers, paste machine operators, paste
machine helpers, tankmen, tankmen trainees, turnouts,
floor boys, production clerks, oilers, repairmen, senior
mechanics, mechanics-repairmen, mechanics-welders,
machinist, machinist learners, and other employees
regularly employed in the forming department (which is
also known as the Front End) at the Respondent's
Sapulpa, Oklahoma, plant, excluding all other employ-
ees, office clerical employees other plant production
and maintenance employees, moldmakers, professional
and technical employees, watchmen, guards, head
tankmen and other supervisory employees as defined in
the Act.
C. The Negotiations and Events Pertaining Thereto
Following the certification of the International, Local
No. 716 the Charging Union herein, was chartered. This, of
course, was for the purpose of representing, specifically,
Respondent's production employees in the "hot end."
With regard to these employees, and others in the plant,
on June 13, 1974, the Respondent, by Charley F. Bartlett,
addressed a letter to the International's headquarters in
Toledo, Ohio, explaining that it had been the policy of the
Company in June of each year to consider the need for
basic hourly rate adjustments and, when indicated, to
implement such increases. The letter went on to state that
the Respondent had reviewed the current base rates and
that it intended to increase the hourly base rates for the
Respondent's employees, excluding the moldmakers and
moldmaker apprentices, from 15 to 20 cents per hour on
June 30. However, Bartlett went on to say that such
increase would not be put in effect with regard to the
employees in the "hot end," whom the International
represented, without the permission of the International.
Additionally, the letter stated that the desired increase
would in no way prejudice the Union's right to bargain for
further wage adjustments or any other matters which were
"within the ambit of obligatory bargaining."
In response to this letter, George M. Parker, Internation-
al union president, wrote to Bartlett that the International,
of course, did not object to any raises given to the
employees, but reminded Bartlett that the action of the
Respondent in increasing wages at that particular time
might be viewed by some as an attempt to undermine the
bargaining position of the Union prior to the start of the
negotiations.
By letter dated June 27, Union President Parker
requested a date for initial bargaining, which letter was
addressed to Mr. Charley Bartlett. By letter dated July 3,
Bartlett informed Parker that the firm of Mueller &
Mueller, of Fort Worth, Texas, would be representing the
Respondent in the negotiations and suggested that Parker
arrange directly with Mueller & Mueller for a date for the
first bargaining meeting. In accordance with this sugges-
tion, Parker, on July 10, addressed a letter to Mr. Harold
Mueller, Respondent's counsel, advising Mueller that
Joseph Alvarez would be the principal negotiator for the
Union and that Parker would depend upon Alvarez'
contacting Mueller for the purpose of agreeing on a date to
begin contract negotiations. However, before Parker's
letter was written, Joseph Alvarez, the Union's Internation-
al representative located in Tulsa, Oklahoma, telephoned
Respondent's attorney, Harold Mueller, on July 8. Alvarez
explained to Mueller who he was and told him that the
committee would be available to work day and night,
Saturdays and Sundays, until an agreement was reached.
Mueller replied that at that time he could not give Alvarez
an answer. However, Mueller stated that he would call
Alvarez the following day, July 9. Mueller did call back on
July 9 and apologized to Alvarez but explained that he
could not give him an exact date for the first meeting. This
was because Mueller's schedule was so full. Nevertheless,
Mueller called Alvarez back the following day again, on
July 10, and a meeting was arranged between the two for
July 18, in Tulsa, Oklahoma.
In accordance with the agreed-upon date, the parties met
on July 18 at the Holiday Inn in Tulsa, Oklahoma. The
Respondent was represented by Attorney Harold Mueller,
the latter's son, Don Mueller, vice president of the
Respondent, Irving Bartlett, Respondent's personnel man-
ager, James Roth, Plant Superintendant Dave Benedict,
and Respondent's local counsel, Thomas Allen. The Union
was represented by Alvarez, Executive Board Member L.
O. Jones, and the local union negotiating committee
members Dean Reynolds, Ron Sloan, Robert Wiley, and
Carol White. It should be noted at this juncture that
Alvarez, on behalf of the Union, and Harold Mueller, on
behalf of the Respondent, acted as chief negotiators and
spokesmen for their respective parties for each of the eight
bargaining meetings which took place between July 18 and
December I I.
It should also be noted that the recitation herein of what
occurred at the first seven bargaining sessions, from July 18
through September 26, comes from the testimony of Joseph
Alvarez, elicited both on direct and lengthy cross-examina-
tion by Respondent's counsel. There is little controversy
with regard to what actually occurred at those meetings
from this virtually uncontroverted testimony. Additionally,
what occurred at the final meeting which took place on
December I 11 was agreed upon by the parties by stipulation
entered into the record.
At the first meeting, which, as noted above, took place on
July 18, after the parties introduced themselves, the Union
presented, in writing, what the committee and Alvarez
considered a complete, proposed collective-bargaining
agreement which included, among other things, economic
proposals including a wage increase proposal of 40 percent
for the first year and a 30-percent increase for each of the 2
succeeding years, the proposal being for a 3-year agree-
ment. However, before the commencement of the actual
discussion of the subject matter of the proposal, Respon-
dent's chief spokesman, Attorney Harold Mueller, stated,
in agreement with the Union, that all agreements reached
would be considered as tentative until final agreement on
all provisions of any collective-bargaining agreement
148
BARTLETI-COLLINS COMPANY
entered into were settled. The Union, as noted above, in its
initial proposal suggested percentage wage increases, but
Mueller suggested at the outset that an effort be made to
reach agreement on all noneconomic issues before attempt-
ing to resolve the economic matters. Alvarez responded to
this proposal by Mueller to the extent that he did not
object to discussing initially all of the noneconomic issues
but, however, insisted that a complete contract be ultimate-
ly reached.
The entire first meeting was devoted to the reading by
Alvarez of the proposal's 31 articles with questions,
comments, and discussion with regard to each article. Left
for discussion in the proposed agreement were the items of
seniority, pensions, and Christmas bonuses.
At the very outset of the discussion of the proposed
agreement, the preamble was read in which a management
rights proposal consisting of one sentence was included.
This proposal merely stated "The Union recognizes the
right and responsibility of the Company to manage its
plants and to direct its working forces." However, before
the preamble was read, Mueller raised the question of the
inclusion of Local Union No. 716, which was formed and
chartered as heretofore noted to represent the unit
employees, as a contracting party inasmuch as the
certification by the Board was only for the International.
Mueller insisted, however, that the Respondent's legal
obligation, according to the certification, was only to
bargain with the International which was the certified
Union. Alvarez maintained that inasmuch as Local 716
was chartered to administer on behalf of the unit
employees, it should be the contracting union.
In much the same manner without coming to any
agreement on any of the subjects in the 31 articles, all 31
were discussed with the exception of the so-called econom-
ic issues. The discussion was open and there is nothing in
the record to indicate intransigence on the part of the
Respondent's representatives at this meeting. The only real
conflict in the testimony with regard to this meeting insofar
as the Union's proposal was concerned was that Alvarez
testified that the forming department employees, by virtue
of their work, which included the handling of hot material,
required the use of a number of pairs of gloves which they
had to purchase at personal expense and that these should
be furnished by the Respondent. Respondent's personnel
manager, Roth, testified that the glove and tool furnishing
proposal was bypassed during the July 18 meeting
inasmuch as the Respondent considered it an economic
issue.
The questions asked during the meeting of July 18 by
Respondent's chief negotiator, Mueller, were, for the most
part, pertinent and in the nature of inquiry as to the
reasons for the insertion of the various clauses. To repeat
the discussion had on each and every one of the clauses
would unduly lengthen this Decision, but, needless to say,
the discussion was lengthy. The meeting began at 10 a.m.
and did not end until approximately 6 p.m. As noted, no
agreement was reached with regard to any of the provisions
of the union contract proposal.
Inasmuch as seniority was not included in the proposal
and was left open to discussion, before the meeting was
adjourned Mueller asked Alvarez to submit a seniority
proposal. Alvarez consented, stating that, together with the
negotiating committee, he would attempt to formulate a
seniority proposal over the following weekend. When, at
the end of the meeting, Alvarez requested of Mueller to
meet on either the next day or in the following week,
Mueller stated that he could not make any commitment at
that time for another meeting because he needed time to
study the Union's proposal. When Alvarez asked whether
the members of the Union's negotiating committee could
be absent from work on the Monday following the meeting
to assist in preparing the seniority proposal to be submit-
ted, Mueller, on behalf of the Respondent, acknowledged
that the committee members would be permitted to use
Monday for that purpose.
As he had promised, Alvarez and the committee drafted
a proposed seniority clause and on July 22 mailed the same
to Mueller's office in Fort Worth, Texas. On July 24,
Alvarez telephoned Mueller and asked the latter for some
indication as to when they could meet again to bargain
further. Mueller informed Alvarez at that point he did not
know but would call Alvarez back within a day or so to
schedule a meeting. On the following day, July 25, Alvarez,
not having heard from Mueller with regard to a new
meeting date, sent Mueller a letter dated that day
reminding Mueller of the conversation of the day before
and further reminding Mueller that the International had
been certified on June 10 and that I week had elapsed since
the first bargaining meeting, yet Alvarez still had no
indication from Mueller when the latter would be available
to meet for further negotiations. Thereafter, on July 29, still
not having heard from Mueller, Alvarez sent a telegram
informing Mueller that he was awaiting the response to
their telephone conversation July 24 and Alvarez' letter of
July 25.
By letter dated July 30, 1974, Mueller wrote to Alvarez a
lengthy letter reviewing, in considerable part, the history of
the relationship between the parties from June 10, the date
of the certification of the International, to that date, and
stating, among other things, that the Union had not
submitted a complete proposal and that the seniority
proposal had not been received until July 24, the day
Alvarez called for a second meeting. Mueller further stated
that Alvarez sent the July 25 letter by surface mail which
did not reach Mueller until July 29, the same day that
Alvarez sent his telegram to Mueller reminding them of the
conversation and the letter. Furthermore, Mueller remind-
ed Alvarez that on July 30, 1974, the telegram dated July
29 finally reached Mueller.
Mueller then went on to state that it would be only
appropriate for the Respondent to have a reasonable
opportunity to consider, evaluate, and analyze the Union's
proposal in its entirety before undertaking to prepare a
counterproposal. Finally, after stating his position, Mueller
noted that, in agreement with Alvarez, the Respondent
hoped to reach an honorable agreement in due time and
that he would communicate with respect to fixing a date
for the resumption of meetings as soon as the Respondent
was able.
On August 4, Alvarez, by night letter telegram, replied to
Mueller's July 30 letter stating that the first meeting was
delayed from June 25 until July 18; that the Respondent
149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had had the Union's proposal since July 18 and received
the additional seniority proposal on July 24. Alvarez then
stated that, based upon Mueller's experience in such
matters, enough time had expired for the Respondent to
make a good-faith counterproposal and requested an
immediate meeting.
Thereafter, on August 13, Mueller called Alvarez on the
telephone and suggested that the parties meet on August
15. Alvarez immediately accepted this date. Mueller
immediately addressed a letter to Alvarez confirming the
meeting, stating the time and place that the parties would
meet on August 15, and again reminding Alvarez that it
took the Union approximately 48 days in which to prepare
and present to the Respondent an incomplete draft of a
proposed contract. He again stated that the Union
certainly would not desire to accord the Respondent less
time in which to prepare its counterproposal.
In any event, despite the obvious growing tension, if not
animosity, between Mueller and Alvarez, the second
meeting took place as scheduled on August 15. The parties
were represented, for the most part, by the same individu-
als who appeared at the first meeting. The meeting was
devoted, for the most part, to the reading and discussion of
the Respondent's counterproposal. At the outset of this
reading by Mueller, Alvarez noted that the counterpropos-
ai recited that the agreement was made between the
Respondent and the American Flint Glass Workers' Union
of North America, AFL-CIO, the International, which, as
noted above, was the certified Union, and that Local 716,
the Charging Union herein, was not mentioned. When
Alvarez questioned this clause, Mueller answered that the
Respondent was reluctant to enter into a collective-bar-
gaining agreement with any labor organization other then
the one which was certified. Also, the Respondent's
counterproposal made no reference whatsoever to the
various economic matters contained in the Union's original
proposal and Alvarez remarked about that.
It would unduly lengthen this Decision to detail the
entire counterproposal offered by the Respondent at the
August 15 meeting. However, as Mueller began reading the
terms of the counterproposal to the parties assembled, a
lengthy discussion ensued regarding the Respondent's
proposed management rights clause. This clause was
extremely lengthy, consisting of three typewritten pages
with three separate sections and a number of subsections.
In sum, the clause retained for the Respondent unilateral
rights, virtually without any recourse by the Union or any
employee to any grievance procedure, to establish, change,
modify all work standards and schedules; to the exclusive
right to select, transfer, reduce the number of employees;
to modify or change the content of existing jobs as they
were then described; to lay off and assign overtime; to
spread available work by reducing workweek; to lay off
employees without any consultation whatsoever with the
Union, and to distribute any available work in any manner
that the Respondent decided to determine. It also retained
for Respondent the exclusive right to establish incentives,
bonuses, new facilities; to transfer work from one depart-
ment to another; to contract out work; to terminate,
liquidate, close any or all of the Respondent's operations;
to select, promote, or transfer employees to positions
outside the bargaining unit; to allocate and assign work to
employees; to determine the number and the hours of
shifts; and to liquidate and close down all or any part of
the Respondent's business without consultation with the
Union. It further retained for the Respondent virtually all
right to select, promote, transfer employees to managerial
positions. Further, it reserved to the Respondent any other
matter which was not otherwise listed, to be determined by
the Respondent, and established that any rights listed did
not exclude other management rights not specifically
enumerated. Most of all, these rights which were to be
retained by management without interference, restriction,
or recourse to the grievance provisions whatsoever.
With regard to the foregoing, Alvarez objected to that
portion of the management rights clause which retained for
the Respondent all of these rights without recourse to the
grievance and arbitration provisions of the contract. When
Alvarez proposed to delete this language, not only at this
particular bargaining session, but at all of the others,
Mueller remained adamant and stated that the various
provisions of any collective-bargaining agreement detract
or restrict management rights and, therefore, the only
rights granted the Union were those expressly set forth in
the Respondent's counterproposal.
A second article discussed was one entitled "Non-
Discrimination." Alvarez objected to this article because it
required the Union not to discriminate against any
employee or applicant for employment because of mem-
bership or nonmembership in the Union or because of his
union activity or nonunion activity. Presumably, this was
because Alvarez was hoping for some sort of union shop or
agency shop provision.5
A third item which presented a problem for Alvarez and
the union bargaining committee was the article entitled
"Union Representation." Alvarez had serious objections to
two sections of that article, the first of which stated that
there would only be one active steward during each shift at
any time. Alvarez' second objection to the article was
section 2, thereof, which stated that the Company would
confer with the shop steward only after working hours
about legitimate union-management matters. This section
also restricted union stewards to noninterference with
normal conduct of work or with any employees who were
on duty. Upon Alvarez' objection, Mueller stated that
supervisors would be available after working hours for
discussions of these matters with the union steward on duty
during the previous shift. There was also some discussion
with regard to section 3 of the union representation article
wherein the Company would grant time off without pay to
employees chosen by the local union to attend conferences
and conventions of International or state conferences.
Another article which provoked considerable discussion
and objection on the part of Alvarez and the Union's
committee was the article entitled "Work by Supervisors."
This article stated "Supervisors shall perform such work as
they deem necessary or proper, or as may be assigned to
them." It should be noted that in the Union's original
5 Oklahoma is not a so-called nght to work State.
150
BARTLETT-COLLINS COMPANY
proposal there was a provision that supervisors not perform
work regularly assigned to unit employees, although such
article in the Union's original proposal did not preclude
supervisors' assisting by lending helping hands to employ-
ees who needed such help in performing their work or in
instructing unit employees. The reason for Alvarez'
objection to the Company's counterproposal was obvious.
This clause could displace bargaining unit employees in
favor of supervisory employees, according to Alvarez.
Mueller, in refuting Alvarez' arguments against the work
by supervisors counterproposal, pointedly stated that the
language in the article merely embodied past practice and
that the foremen, like all other employees, were hired to
perform 8 hours of work and that they would continue
doing so. The parties remained adamant in this respect and
nothing pertaining thereto was agreed upon.
The next article which evoked some discussion was the
article entitled "Discharge." Alvarez questioned some of
the subsections which, according to the article, would
constitute good and sufficient cause for discipline and
discharge. One subsection, which stated that an employee
could be discharged or disciplined for failure to maintain
and possess necessary licenses and operating permits, was
agreed to be deleted by Mueller. 6 There was further
discussion on other subsections of this article which
Alvarez questioned in that there was a broad statement
with regard to immoral or indecent conduct. Alvarez felt
that it was too broad and wanted more of a definition of
what was meant by that. As with the other articles, no final
agreement was reached with regard to the subsections.
Although Alvarez did question some of the subsections,
there seemed to be no great difficulty with this article.
The next counterproposal article discussed, which
evoked heated discussion, was the "No-Strike, No-Lock-
out" article. The third section of this article stated, in
substance, that an employee who violated the provisions of
the article, that is one who engaged in any strike,
slowdown, restriction, or interference with production
during the term of the agreement, would be subject to
discipline including discharge in the sole discretion of the
company and without recourse of the grievance procedure.
Alvarez strongly objected to this paragraph of the article
and further strongly objected to the last sentence of the
article which provided that the Company would not be
obligated, under this article, to apply the same disciplinary
measures to all individuals violating the article. Alvarez
argued that this language could lead to unequal treatment
of employees, apparently depending upon the whim of
whatever Respondent officer or official was dealing with
the matter at the time.
Because of Alvarez' objections with regard to the cutting
off of grievance filing concerning discipline for a violation
of the "No-Strike, No-Lockout" clause, the parties engaged
in a lengthy discussion of the following article which was
entitled "Grievance Procedure."
The proposed grievance procedure was extremely
lengthy comprising nine separate sections with the griev-
ance procedure itself set forth in section 2, thereof,
comprising four steps, the last step being the step into
8 It was obvious that this section might have been taken from some other
earlier contract with another union for another company and in drafting
was adopted mistakenly into the draft of the proposed counterproposal.
arbitration, which in and of itself comprised a main
paragraph with five subsections. Alvarez commented at the
outset of the discussion of the grievance procedure that it
was lengthy and would be extremely difficult for the
employees to follow and to comply with the various steps
thereof. He objected to the requirement that an employee
was required to present the grievance personally to the
foreman, in writing, within 3 days of the happening of the
event giving rise to the grievance. Alvarez argued he
thought that an oral presentation would be sufficient and
that the written presentation might be too difficult for an
employee to handle alone. Also discussed was step four of
the counterproposal's grievance procedure, the introduc-
tion of the arbitration procedures which required that only
employee aggrieved could file the written request for
arbitration and not a union representative. When Alvarez
raised objection to this, Mueller replied that the decision to
submit a grievance to arbitration should be made by the
employee involved. This, of course, would eliminate the
decision of the Union to go to arbitration involving the
grievance in the event that the employee did not desire to
do so even assuming that the event giving rise to the
grievance could be, arguably, in violation of the contract
between the parties.
Finally, in addition to the protests by Alvarez and other
members of the union negotiating committee, there was
serious objection to the proposed provision that the
arbitrator, in making a ruling on a decision of the
Respondent to discipline or discharge an employee, could
not take into consideration the length of service and prior
unblemished employment record of the grieving employee,
nor would the arbitrator have the power or the authority to
make the Respondent's choice of discipline subject to
review or modification by the arbitrator. Presumably, this
would mean that if an arbitrator would find that the
employee was unduly harshly disciplined, he could not
modify the assigned discipline in any manner whatsoever.
There were also other objections to the grievance proce-
dure proposed by the Respondent. These were with regard
to that section of the procedure which required an
employee union representative to clock out in order to
investigate or assist in the processing of the grievance.
The next item of the Respondent's counterproposal
discussed was the "Seniority" article. As noted above, on
July 22, 1974, the Union sent to counsel Mueller the
Union's seniority proposal. This proposal was very simple
and was not sufficiently definitive to satisfy the Respon-
dent's needs, according to Mueller. Therefore, the seniority
clause in the Respondent's counterproposal was much
more detailed. Mueller stated that the seniority clause
proposed by the Union was unworkable. Thereafter, the
parties discussed each section of the counterproposal's
seniority article. Alvarez raised some question with regard
to the provision that an employee's seniority would be
terminated if the employee was laid off for more than 6
months. Mueller responded that, normally, employees who
would be laid off for more than a 6-month period seldom,
or rarely, returned to employment with the Respondent.
However, although Alvarez objected to and asked ques-
151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions concerning other portions of this seniority provision,
Mueller in each instance responded with a rationale to
support the particular provision under discussion. Indica-
tive of this was Alvarez' objection to certain language
which provided that employees who would be rehired after
a break in service would be required to undergo a
probationary period of 90 days. Mueller provided the
explanation that the basis for this provision was that
employees could possibly change working habits over a
period of time.
Also included in the seniority provision was a further
extension of the retention of control over matters in which
the Union considered it should participate. Thus, one
provision of the seniority counterproposal provided that
any permanent transfer from one classification to another,
or from one department to another, would be with the
approval of the employee with the proviso, however, that if,
in the judgment of the Respondent, its operation required
such transfer, it could make the same over and above the
employees' desire not to be transferred. There was no
provision for intervention by the Union in such an event.
Again, to further relate the discussion of the various
objections and answers by the Respondent to the lengthy
seniority provisions would unduly lengthen this Decision.
Suffice it to say, there was considerable discussion with
regard thereto and very little give and take on the part of
the Company.
The next article of the Respondent's counterproposal
was the "Hours of Work" concerning which there was little
or no discussion.
Following this, the article entitled "Overtime" evoked
little discussion. The next article discussed was "Reporting
Pay" in which again there was little discussion except that
Alvarez attempted to persuade the Respondent to extend
reporting pay from 3 to 4 work hours.
The next counterproposal article discussed was "Bulletin
Board." This, again, was submitted in reply to the Union's
bulletin board proposal which required a bulletin board or
bulletin boards of its own. The Respondent's counterpro-
posal merely provided that bulletin board space would be
provided. It also required that the posting of notices by
union representatives would have to be approved in
advance by the Respondent and set forth certain other
restrictions. Alvarez stated that the Union would desire a
separate bulletin board and questioned the necessity for
Respondent's approval of what went on the bulletin board.
He agreed, however, that matters of a derogatory nature
should not appear in such notices.
Next discussed was "Health and Safety." Here again the
Respondent stated that it would provide protective devices
which were then being provided. Among other things, this
article stated that suggestions by employees with regard to
plant safety would always be welcomed and would receive
careful consideration. With that Alvarez suggested the
formation of a safety committee which would be composed
of both employees and management representatives. The
next four articles, "Relief," "Incentive Programs," "Sever-
ance Pay," and "Payday" were quickly passed over, the
only material discussion being with regard to severance
pay. Alvarez stated that he thought the article should
provide that the Company would bargain with regard to
severance pay in the event the plant should be closed down
permanently.
The next counterproposal article which resulted in a
rejection by the Union in its entirety was the article entitled
"Transfer of Company Title" which provided nullification
of whatever collective-bargaining agreement the parties
entered into in the event of the sale, lease, or transfer of all
or any part of the operations or facilities staffed by unit
employees. Mueller contended that he deemed such
language necessary to permit the Respondent flexibility in
the event the Respondent decided to sell the plant. It
should be noted that this clause was among those which
remained as an unresolved issue through all of the
subsequent bargaining sessions and remained such when
bargaining ultimately broke off.
The next article read was entitled "Classification and
Rates of Pay." This article, although by its title seemingly
would offer a list of classifications and the rates thereof,
merely read "Classification, Rates of Pay as set forth in the
attached Rate Schedule." However, no rate schedule was
attached inasmuch as this would have been an economic
provision which, according to Mueller, Respondent did not
desire to discuss until such time as all noneconomic
matters were agreed upon. Alvarez asked where the rate
schedule referred to therein was. He was given no definitive
answer.
Also discussed was the article entitled "Physical Exami-
nation" which could require both physical and mental
fitness and regarding which the Company could require
any employee to submit to a physical or psychiatric
examination whenever, in its judgment, it deemed such
examination to be advisable. The union negotiating
committee, through Alvarez, objected to the words "men-
tally fit" and desired to know under what circumstances an
employee would be required to undergo a psychiatric
examination.
There seemed to be little discussion with regard to the
next article, "Reporting for Work." However, there was
discussion with regard to the following article entitled
"Employees Returning to Bargaining Unit." This article
provided that if employees were selected by the Company
for positions outside the bargaining unit, such employee
would retain seniority within the bargaining unit, and, if
there was a layoff, or if the same employee were to be
demoted by the Company, the said employee could return
to the bargaining unit and displace any person having less
seniority in the particular classification of the returning
employee. The discussion which evolved was based upon
the Union's objection, not to the promotion of employees,
but to the return of a promoted employee back to the
bargaining unit which could, in turn, result in a layoff of a
bargaining unit employee. It was suggested by Alvarez that
a time limit should be set for the accumulation of seniority
by an employee who was promoted or transferred out of
the bargaining unit.
The next article which was read, or at least acknowl-
edged, was the so-called waiver clause, commonly known
as a zipper clause, which provided that both parties waived
any right to bargain collectively on any matter during the
term of the collective-bargaining agreement that is not
included in the collective-bargaining agreement, even
152
BARTLETT-COLLINS COMPANY
though the same may not have been discussed during the
negotiations of the bargaining agreement. Alvarez asked
that this article and the following article entitled "Full
Compensation" be held in abeyance at that time.
Accordingly, the next articles, the "Savings Clause" and
an "Extra Contract" clause, were evidently satisfactory
because no discussion was had thereon. Finally, the parties
had a rather lengthy disputation with regard to the next
article entitled "Union Discipline" which provided that the
Union would not have the authority to fine, discipline, or
expel any employee union member for the purpose, either
in whole or in part, of requiring such employee to perform
his job in a manner other than as directed by the Company.
The vigorous protest raised by Alvarez with regard to this
clause was based on his stated reason that the fining or
disciplining of a member was purely an internal union
affair and that by this clause the Respondent was seeking
to control affairs which belonged legitimately, internally, to
the Union. He went on to say that the Respondent could
not legitimately have any interest in such internal union
affairs and that, moreover, the Union had no intention of
interfering in anyway with Respondent's direction of its
work force. In answer, Mueller suggested that the Union
could, perhaps, ask its members to slow down. To this
Alvarez answered that the Union was an honorable
organization and would not permit such activity by its
members. This clause remained a sticking point throughout
all of the following sessions to the very end of the
bargaining and to the bargaining breakoff. The Union
insisted that it would not accept such a clause and the
Employer insisted that such clause must be included in any
collective-bargaining agreement agreed upon.
The remaining clauses of the Respondent's counterpro-
posal were basically ministerial and no further discussion
was had on those clauses at the particular bargaining
session here discussed.
However, when consideration of the Respondent's
counterproposal was completed, Alvarez made the obser-
vation that the Respondent's counterproposal made no
reference whatsoever to any economic matters contained in
the Union's initial contract proposal submitted at the first
bargaining meeting. He explicitly informed Mueller that
the Company's proposal on economic issues was missing
and that the counterproposal was not a complete counter-
proposal without any money or any other economic issues.
According to Alvarez' testimony, which remained virtually
undisputed in this respect, Mueller's reply was rather
vague, merely stating that the Respondent's economic
proposal would be presented in due time.?
7 Although some of Alvarez' testimony on both direct and cross-
examination with regard to the negotiations, not only at the first and second
negotiating session, but at others as well, was indicative of some confusion
with regard to time and exact statements made by various parties, I find and
conclude from my observation of Alvarez, and also from a careful
examination of the very lengthy cross-examination conducted by Respon-
dent's counsel, that, basically, the testimony given by Alvarez was reliable as
to import and never effectively refuted. I make this observation even
though, for the most part, Alvarez' testimony was not materially contra-
vened by the testimony of any Respondent witness. Moreover, it was
Respondent's chief negotiator, Attorney Mueller, who conducted the
proceeding before me on behalf of the Respondent and the device which he
utilized in cross-examining Alvarez at great length was to ask him questions
with regard to each item to which Alvarez testified and then asked him a
question beginning with, for example. "Didn't I then say such and such and
Additionally, at the end of the meeting Alvarez requested
that another bargaining meeting be held the following day.
To this, Mueller consented. Alvarez stated that he and the
union negotiating committee together would review the
Respondent's counterproposal that evening and prepare a
response thereto. The parties agreed to meet the next
morning. In the meantime, the night of August 15 and the
following morning before the third bargaining meeting,
Alvarez and the union negotiating committee prepared a
handwritten response to the Respondent's counterproposal
of August 15. By reason of their working on this response,
the August 16 bargaining session did not commence until
1:30p.m.
At the meeting of August 16, the Union presented to the
Respondent its response to the Respondent's counterpro-
posal to the Union's original proposal. To a very significant
extent, the Union, in its response, agreed to many of the
articles in the Respondent's counterproposal. In the first
instance, the Union agreed to delete its Local No. 716
designation from the title of the agreement. Despite the
lengthy and restrictive management rights clause submitted
by the Respondent in its counterproposal, the Union, in its
response, agreed to the entire management rights clause as
submitted by the Respondent with one exception. It
refused to go along with the part of the first section of the
clause which required that the responsibility of manage-
ment to conduct its business would be without interference,
restrictions, or recourse to the grievance and arbitration
provisions of the agreement by the Union or any employee.
Alvarez explained that the language which would prevent
the Union from taking any matter regarding management
rights to the grievance and arbitration procedures was
inherently restrictive; that it, in effect, seriously prevented
the Union from fully utilizing the grievance and arbitration
procedures of the contract. However, Mueller remained
adamant with regard to this proposal and the Respondent
to the date of the hearing herein had not moved from its
position.
The Union then agreed to each and every paragraph
following that paragraph of the Respondent's counterpro-
posal until it reached the second section of the "Non-
Discrimination" article of the Respondent's counterpro-
pos- al. This article contained a clause which read,
"Neither the Company nor the Union or its members will
discriminate against any employee or applicant for em-
ployment because of his membership or nonmembership in
the Union, or because of his union activity or his nonunion
activity." The union representatives desired to delete from
this the words "or his nonunion activity" from the last
such." In virtually every instance, Alvarez either maintained what he stated
was said at the various bargaining sessions between himself and Mueller or,
in the event that the question asked upon cross-examination reminded him
that some different discussion occurred, Alvarez readily and unhesitatingly
admitted to such. For these reasons. I accept Alvarez' versions of the various
bargaining sessions which, as noted above, remained for the most part
unrefuted. Additionally, much of the material recited heretofore with regard
to the first two bargaining meetings and which will be recited with regard to
later matters, was developed from Alvarez' testimony as much on cross-
examination as on direct. I conclude therefore that, although Alvarez'
memory required some jogging inasmuch as he did not keep full notes of
most of the bargaining as it took place, he nevertheless endeavored at all
times to be forthright and truthful and to fully state all that he was able to
remember.
153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above quoted line. This, presumably, because the Union
felt that it was again interference with the internal affairs of
the Union and the manner in which it could determine
discipline. It should be noted that this clause remained an
unagreed-upon clause as of the day of the hearing herein
and the Respondent has refused to move from its position
with regard thereto.
With respect to the Respondent's counterproposal article
entitled "Union Representation," the Union's representa-
tives agreed to accept the entire proposal with the
exception of the words requiring the shop steward to confer
with the Company regarding legitimate union-management
matters only after working hours. The union representa-
tives desired to delete the words "after his working hours."
They also asked to lengthen the time that a representative
of the local union could attend a local, state, or national
convention or conference of the Union. The Respondent's
"Union Representation" clause provided for such time not
to exceed I week. The Union requested 2 weeks. Without
acceding to the Union's request in any manner, Mueller
merely inquired as to the approximate number of employ-
ee-members who would attend union conventions at any
particular time. He was told that not more than one or two
individuals would attend and that these conclaves did not
take place more than once every 2 years.
Next the Union consented to the Respondent's counter-
proposal article entitled "Visitation Privileges," but reject-
ed completely the article entitled "Work by Supervisors."
As noted, this article provided that supervisors would
perform such work as they deem necessary or proper or as
might be assigned to them. Instead of accepting this clause,
the Union's representatives thus proposed a clause which
provided that the supervisors could work in an emergency
or when employees needed assistance. The Union objected
to the supervisors freely working and performing unit work
which could affect the employment status of the Union's
members in the unit.
The next portion of the Respondent's counterproposal
that was discussed pursuant to the Union's response was
the Respondent's "Discharge" proposal which, as noted
above, mentioned as a ground for discharge violation of
company rules and regulations. Alvarez requested that this
be held in abeyance until the Respondent complied with
Alvarez' request for a written copy of the Respondent's
rules and regulations. The committee members indicated
they were unaware of such. Mueller replied that Respon-
dent did maintain rules; that Respondent, in addition to
having an old employee booklet, adhered to certain
unpublished disciplinary rules. It should be noted that the
record contains no evidence that the union representatives
ever were supplied a copy of any rules or regulations.
The parties next discussed the "No-Strike, No-Lockout"
article of the Respondent's counterproposal. The Union in
its response, or second proposal, requested deletion of the
last paragraph of this article of the Respondent's counter-
proposal which provided, in effect, that any individual
violating the article would be subject to discipline,
including discharge, in the sole discretion of the Respon-
dent and without recourse to the grievance procedure.
Alvarez, on behalf of the union committee, contended that
the language of this paragraph would, as did other
paragraphs of the Respondent's counterproposal, prevent
access to the contractual grievance-arbitration procedure.
However, the Respondent's representative again refused to
move from his position on this matter and to the date of the
hearing Respondent has refused to agree in any respect to
amend its "No-Strike, No-Lockout" proposal.
The next item of the Union's response to the Respon-
dent's counterproposal was offered in answer to the
lengthy article of the Respondent's counterproposal enti-
tled "Grievance Procedure." The Union, in writing,
objected to what it had objected to verbally; namely, that
the grievance should not have to be written and signed
solely by an employee. This objection was later withdrawn
by the Union on August 23 because of an agreement by the
Respondent for a change in language in the first step of the
grievance procedure. Also, the Union's response to the
grievance procedure proposed by the Respondent was
directed at step four of the grievance procedure which was
the taking of the grievance to arbitration. The Union
requested that this be held in abeyance by reason of the
fact that the Union desired to have inserted words which
would permit local union officers and International union
representatives to process unresolved grievances, as well as
the individual grievant. As noted above, the Respondent's
counterproposal was first discussed on the day before, and
the Union objected to the fact that only the grievant could
request arbitration.
The Union, in its response on August 16, rejected the
Company's entire counterproposal article entitled "Seniori-
ty." There were a number of reasons given by Alvarez as
the basis for this rejection. Principally the objections were
addressed to the 90-day probationary period, whereas the
Union, in its original proposal, desired a 30-day probation-
ary period. This was in connection with its proposal for a
30-day union-security clause. However, the Respondent's
counterproposal did not include any provision for union
security. Other reasons for rejecting the Respondent's
seniority counterproposal were with regard to the section
dealing with an employees' department transfer and the
section providing that seniority would terminate after a
layoff of 6 months or more. Alvarez expressed his opinion
both on August 15 and 16 that 6 months was too short a
period and suggested that seniority should terminate only
after a layoff of sometime between 12 and 36 months.
Mueller, on behalf of the Respondent rejected this
compromise. Also, with regard to further sections of the
seniority counterproposal, the Union, through Alvarez,
suggested that nonoccupational illness leave continue with
seniority undisturbed for a period of somewhere between
24 and 36 months as against the Respondent's proposed
period of 12 months. There were also additional reasons
given by Alvarez for the rejection of the Respondent's
seniority counterproposal.
The Union's response to the next article of the Respon-
dent's counterproposal entitled "Hours of Work" was
agreement with that entire clause, and no objection was
raised to that section of the counterproposal. Although,
with respect to the next article entitled "Overtime," the
Union agreed to all five sections thereof, and also proposed
to resubmit article 10 of the Union's original proposal
concerning workweek and premium pay. The reason for
154
BARTLETr-COLLINS COMPANY
this, according to Alvarez, was that the Union desired to
incorporate, in addition to what it had agreed to in the
Respondent's "Overtime" proposal, a provision to the
effect that overtime be paid for work in excess of 8 hours
per day or during any continuous 24-hour period, and for
time worked on Saturdays and Sundays and, additionally,
for work performed during the seventh consecutive day of
any workweek as set forth in the Union's original proposal.
However, during the discussion of the Respondent's
"Overtime" proposal on August 16, the Union agreed to
delete from its initial proposal designated "Workweek and
Premium Pay" the sections which dealt with time-and-a-
half pay for all time worked in excess of 8 hours in a single
workday, or in excess of 40 hours in a single workweek.
The Union's response to the Respondent's counterpro-
posal clause entitled "Reporting Pay" was a complete
rejection and resubmission of the Union's proposal with
regard to reporting and call-in pay. Next, the Union
accepted the "Bulletin Board" article of the Respondent's
counterproposal.
The next item discussed was the Respondent's counter-
proposal article entitled "Health and Safety." The Union
was in agreement with this article provided the words "or
may be required by law or company policy" at the end of
the second sentence were deleted. There was some
discussion of the Company's language. Finally, a compro-
mise was reached upon suggestion of language by both
parties, principally by the Respondent's representative.
However, from the record, it is unclear whether this
agreement was reached on that date or a later date. In any
event, agreement was ultimately reached on this proposal
as modified.
The Union's response noted acceptance of the next four
articles of the Respondent's counterproposal entitled
"Relief," "Incentive Programs," "Severance Pay," and
"Payday." However, the Union rejected the Company's
proposal entitled "Transfer of Company Title." This
proposal required that, in the event of sale, lease, or
transfer of all or any part of the operation facilities staffed
by unit employees, the agreement would forthwith become
null and void. Alvarez' reason for rejecting this article was
that he thought that the collective-bargaining agreement
should be honored by any possible successor employer. 8
The next article of the Respondent's counterproposal,
"Classification and Rates of Pay," referred to a rate
schedule attached. However, no rate schedule was at-
tached. The whole matter was placed in abeyance until the
Respondent submitted to the Union a rate schedule. It
should be noted in connection therewith that Mueller on
behalf of the Respondent again stated that he desired to
dispose of all noneconomic matters before economic
matters would be discussed and, accordingly, a rate
schedule would be submitted in due time.
To the next counterproposal article entitled "Physical
Examination," the Union's response was rejection of the
entire proposal. Alvarez testified that the committee "just
didn't like the reading and the language of the article."
I At first blush, in view of the Supreme Court's decision in N. L.R.B v.
Burns International Security Services. Inc.. et al. 406 U.S. 272 (1972), which
held that a successor employer is not bound by the collective-bargaining
agreement between its predecessor and a labor organization, Alvarez'
Alvarez and the committee, however, did not at that
meeting suggest any alternative language. Nevertheless, it
is apparent that the rejection was caused by the use of the
words "physically and mentally fit for work and free of
infectious or contagious diseases."
At the meeting of August 16, the Union, in its response
to the Respondent's counterproposal section entitled
"Reporting Pay," did accept the entire proposal on that
subject and, accordingly, the parties were in agreement on
that matter.
The next topic of discussion was the article in the
Respondent's counterproposal entitled "Employees Re-
turning to Bargaining Unit." The Union's response was
that it was in agreement provided a limitation was set upon
the time during which seniority could be retained by
employees who left the bargaining unit. The Union desired
to avoid a situation where employees holding management
positions could return after a long period to the unit and
bump employees who had remained in the bargaining unit.
The Union proposed that the article contain the words "for
a maximum of 2 years." Mueller countered that the article
was for the benefit of employees because with the security
of the knowledge that they could retain their seniority, they
would not hesitate to take more advanced work and
perhaps work into management level positions. He then
asked Alvarez whether the Union wanted to discourage
advancement. Alvarez answered "No," that the Union
wanted to encourage advancement. However, the Union
was adamant in desiring a cutoff date for accumulation of
seniority for employees who moved out of the bargaining
unit. In any event, however, at the next meeting, August 23,
the matter was agreed upon as hereinafter set forth.
The Union's response to the counterproposal of the
Respondent entitled "New Classifications" indicated
agreement and there was no discussion on that matter.
Although there was no rejection of the next article,
"Complete Agreement," the Union in its response to the
Employer's counterproposal stated that clause was to be
held in abeyance. Alvarez explained that this clause would
be held in abeyance until all of the main matters and all the
economic features were resolved, in other words, until there
was actually a complete agreement. At that time the union
representatives would decide on whether to accept this
proposed clause.
The same action was taken with regard to the Union's
position on that clause of the Respondent's counterpropos-
al entitled "Waiver." This clause, commonly referred to in
labor relations parlance as a zipper Clause in which the
parties agree that there shall be no further agreement or
request for bargaining on any matters not covered by the
original agreement during the life of the agreement. This
waiver would be in effect even if such matters were not
brought up and disposed of during negotiations for the
agreement. Alvarez stated to the Respondent's representa-
objection would seem to have little merit. However, in Burns, there was a
complete sale whereas in the instant proceeding the requirement in the
Respondent's counterproposal required nullification of the agreement if
only a partial sale of the Respondent's business involved unit employees.
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive that the Union would not agree to this clause at that
time until an entire agreement was reached.9
The next article of the counterproposal answered by the
Union was entitled "Full Compensation," which the Union
rejected until such time as the Respondent submitted its
economic proposals. However, the next article entitled
"Savings Clause," was agreed to by the Union in its
response. But, the clause entitled "Extra Contracts" was
rejected by the Union for the time being because,
according to Alvarez, "I couldn't agree to this until I knew
what the money package was." Likewise rejected was the
"Extra Contracts" article because, according to Alvarez,
the Union just did not like the language in the clause.
The article entitled "Union Discipline" was rejected by
the Union and it was explained that this was for the same
reason advanced by the Union on the previous day;
namely, that it restricted the Union with regard to its own
internal affairs.
With regard toward the article entitled "General," the
Union acknowledged in its response that it was in
agreement except for some suggested language change in
the last section.
The Union's response to the final paragraph of the
Respondent's counterproposal was to hold the matter in
abeyance until such time as the parties reached full
agreement. However, after this last clause of the Respon-
dent's counterproposal was discussed on August 16, the
Union's response was that it resubmitted its entire original
proposal as submitted to the Company on July 18.
According to Alvarez, whom I credit, the reason for the
resubmission of the entire union proposal was that the
Respondent's counterproposal, which was given to the
Union on August 15, did not contain responses to all of the
Union's proposal and, moreover, contained no economic
proposals whatsoever. In fact, Alvarez explained to
Mueller that, despite the Union's efforts, they found
missing from the Respondent's counterproposal any
answer to any of the economic items. Alvarez told Mueller
that he hoped the Respondent appreciated the concessions
the Union had made to many of the items in the
Respondent's counterproposal, and that the committee was
trying to reach an agreement. Alvarez told Mueller he
wished that Mueller would note the movement that the
Union had made and what the committee had done in
order to reach an agreement. When Alvarez then asked
Mueller if the latter would discuss economic items,
Mueller's response was "that is money issues, that's
economic." Evidently, Mueller meant that the Respondent
again would not discuss economic matters until final
disposition of all other contractual proposals.
The foregoing summarily relates what occurred at the
meeting of August 16. At the conclusion thereof, Alvarez
proposed that the parties meet again the next day, August
17. However, Mueller explained that this could not be
done; that he could not meet on the following day and the
parties finally agreed to meet at 9:30 a.m. on August 23.
The record is somewhat confusing with regard to when
Mueller on August 16 asked for the Union to submit what
9 Upon persistent cross-examination by counsel for the Respondent,
Alvarez refused to admit that at the August 16 meeting he and the union
negotiating committee agreed, in substance, to the wording of the clause. I
credit Alvarez.
it considered language for a proper seniority clause or
changes in the Respondent's proposal for such clause.
However, at some time either during the discussion of the
seniority clause or at the conclusion of the August 16
meeting, the request by Mueller was made. On August 19
Alvarez enclosed and mailed to Mueller the proposed
seniority language with which the Union would agree. Also
enclosed was the Union's proposed changes in the
grievance procedure article set forth in the Respondent's
counterproposal. °0
The parties met as scheduled at 9:30 a.m. on August 23.
Present, for the most part, for each of the parties were the
same individuals who had represented the parties at the
earlier meetings, with Alvarez and Mueller as the chief
spokesmen for their respective constituents. The session
opened with a rather lengthy discussion of the grievance
procedure in accordance with the modifications submitted
by Alvarez by letter to Mueller on August 19. Alvarez
commented that representatives of the International union
should review grievances before their submission to
arbitration. After a period of approximately 2 hours, it was
agreed that the grievance procedure would be amended to
provide that unresolved written grievances would be
considered by the International union president, or his
designee, and by the Respondent's chief executive officer,
or its designee, before submission to arbitration. Further
agreement was reached to include language in the griev-
ance procedure that unresolved grievances could be
submitted to arbitration by either the Union or the grievant
by written notice of desire therefore. Further amendment
was agreed upon to permit the initial grievance to be
submitted orally rather than in writing by the grieving
employee to his immediate supervisor before the same was
required to be reduced to writing. After much discussion
the parties finally reached agreement on the entire
grievance procedure at approximately 3 p.m. of that day.
Also discussed after agreement was reached on the
language of the grievance procedure was "Seniority."
Alvarez held that the 90-day probationary period con-
tained in Respondent's seniority proposal was of too long
duration and suggested a probationary period limited to
between 30 and 60 days. Mueller rejected this proposal out
of hand. There was also some discussion with regard to
seniority in relation to the language contained in the
Respondent's counterproposal stating that any permanent
transfer from one classification to another or from one
department to another should be with the approval of the
employee, etc. Alvarez contended that the language "from
one department to another" was not applicable inasmuch
as the unit covered by this proposed agreement included
employees in only a single department. No agreement was
reached on the proposed deletion suggested by Alvarez of
the words "from one department to another."
Nor was agreement reached on the section of the Union's
initial proposal relating to union membership, Mueller
arguing that the Respondent had the right to select its
employees regardless of whether the Union approved of
applicants for employment. However, agreement was
10 It is unnecessary at this point to detail the particular changes
proposed.
156
BARTLETT-COLLINS COMPANY
reached, after some discussion, on the "Health And
Safety" article of the Respondent's counterproposal of
August 15. The end of the second sentence contained in
paragraph I of that proposal was finally compromised to
read "or as the Company may be required by law to
provide." This was suggested by Mueller and accepted by
the Union. Further discussed was the article designated
"Work by Supervisors." Alvarez repeated his argument
that supervisory personnel should not be permitted to
perform work regularly performed by unit employees.
There was no movement on this particular clause.
Also discussed was the Respondent's "Discharge"
article, Alvarez again objecting that members of the union
committee were not aware of any written rules or
regulations maintained by the Respondent or aware of the
existence of any rules or regulations. Alvarez then
requested an explanation of the rules and regulations or in
lieu thereof a list of such regulations. Mueller's reply that if
the Union had any objections to a particular rule
maintained by the Respondent a grievance could be filed
with respect thereto. However, it should be noted that the
Respondent's proposal, from which the Respondent did
not move at this time, at least, stated that the rules and
regulations and any objections thereto would not be
grievable. Nevertheless, despite all of the foregoing, the
Union finally conceded on that day and accepted the
Respondent's "Discharge" article in its entirety as con-
tained in the Respondent's counterproposal.
Next discussed together was the clause in the Union's
original proposal designated "Successors, Transferees and
Assigns" and the clause the "Transfer of Company Title"
proposed in the Respondent's counterproposal. Alvarez
insisted that any successor be bound by the union contract.
This was again rejected by the Respondent's representa-
tives and, accordingly, Alvarez rejected the "Transfer of
Title" clause of the Respondent's counterproposal. How-
ever, with regard to the "Physical Examination" article
proposed by the Respondent, although there was initial
objection by the Union to the use of the words "physically
and mentally fit," and also to the requirement that
employees may be subject to physical and psychiatric
examinations, the Union on August 23 finally accepted
that clause and agreement was reached thereon.
The parties also had some success which culminated in
the Union's acceptance of the next article discussed,
Respondent's proposed article on "Employees Returning
to Bargaining Unit." Alvarez reiterated his original
objection to this article contending that a time limitation
should be placed upon an employee's ability to return to
the bargaining unit after leaving the same and accumulat-
ing seniority. Mueller suggested that the article be modified
to permit "actively employed individuals" to return to the
bargaining unit if they desired to do so. With this
modification, the Union accepted the article entitled
"Employees Returning to Bargaining Unit."
Additional discussion was had which related to the
Respondent's "Union Representation" article. Alvarez
again contended that the provision for leave of absence to
attend union conclaves be extended from I to 2 weeks.
Furthermore, he again objected to the requirement of the
section of that article which provided that shop stewards
could confer with management representatives only after
regular working hours. Alvarez argued that this would
work a hardship upon the stewards. Although, in testifying,
Alvarez could not place the date when Mueller suggested
an acceptable amendment to this article, Mueller did
propose an amendment to the section permitting leave of
absence to attend meetings not to exceed 3 weeks. The
Union thereupon accepted the leave of absence section.
However, as far as can be ascertained from the record, the
Union did not accede to the portion of the article which
required union stewards to meet with Respondent's
representatives only after working hours.
No further agreements of any part of the Union's
proposal or the Respondent's counterproposal were
reached on that day. Toward the conclusion of this August
23 meeting, Alvarez again requested discussion of econom-
ic issues. This was brushed aside by Mueller's statement to
the effect that he desired to discuss other matters. Alvarez
then predicted that a strike would possibly ensue if the
negotiations between the parties did not result in more
progress and if the Respondent continued to fail to submit
a complete contract proposal including economic provi-
sions. He explained to those present that, as heretofore set
forth, the Union had made numerous concessions and, in
particular, had consented to the very lengthy and difficult
to follow grievance procedure proposed by the Respon-
dent. The Respondent's vice president and secretary, Irving
Bartlett, then inquired of Alvarez if the statement with
regard to the strike constituted a threat. Bartlett thereupon
affirmed the Respondent's confidence in the representation
it was receiving from its counsel, Mueller. Bartlett stated he
felt Mueller had performed in a satisfactory manner and
Respondent would continue to rely on Mueller's advice.
Thereupon, after Mueller agreed to follow up Alvarez'
request for the next meeting by telephone to Alvarez on the
following Monday, the meeting adjourned at approximate-
ly 6 p.m.
On August 26, Mueller, by telephone, arranged with
Alvarez to meet again on September 5 and 6. On that same
day, Alvarez held two union membership meetings, one at
I p.m., and the other at 7 p.m. During these meetings
Alvarez, together with International Representative Jun-
kins, reported to the employees the progress, or lack of
progress, that had been made in the bargaining to that
date. In response to a question, Alvarez told the employees
that the Respondent "was dragging its feet" and, in his
opinion, violating the law. Someone from the group of
employees at one of the meetings indicated that they
should strike on Labor Day. Alvarez requested the
members to restrain their emotions with regard to the
strike. The members thereupon by secret ballot voted to
begin a strike against the Respondent on September 15 in
the event that a satisfactory agreement was not reached in
the meetings scheduled for September 5 and 6.
On the following day, August 27, Alvarez and Junkins
visited Irving Bartlett and Charley Bartlett at the Respon-
dent's plant office. Alvarez informed the two Bartletts that
the employees in the unit had voted and were prepared to
strike on September 15 if satisfactory progress was not
made in negotiations before that date. Alvarez also
informed the Bartletts that it was only because he had
157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persuaded the employees to postpone strike action until
September 15 that the strike was not going to occur before
that date, and that the employees, through him, requested a
complete contract proposal from the Respondent, includ-
ing economic issues. The short meeting ended with the
Bartletts thanking Alvarez for this information.
Bargaining session number 5 was held, as scheduled, on
September 5. The parties were represented, for the most
part, by the same individuals with the exception, however,
that also present was Union Executive Board Member
Jones. The meeting began at approximately 2 p.m. on that
day. This meeting, initially, was devoted to a discussion of
the Union's original proposal, which the Union resubmit-
ted, especially with regard to economic matters. According
to Alvarez, each time an economic matter, such as
reporting and call-in pay, funeral leave, gloves and tools,
vacations and holiday pay, insurance for active employees,
was submitted, the answer by Mueller was almost uniform-
ly "that is economics" or "that is a money item" and the
matter was passed. Mueller indicated that he did not wish
to discuss these items inasmuch as they were economic
items, apparently maintaining the position which Respon-
dent had maintained during the prior four negotiation
meetings that all noneconomic issues be resolved before
economic issues were to be discussed and disposed of."
Most important of all, the Union resubmitted its article
captioned "Wages." Mueller's sole answer to that was
"economic." Also in this category was the Union's original
"Cost of Living" article to which again the answer was
"economic."
On noneconomic matters, or matters not classified by
Mueller as economic, there was a considerable discussion
with regard to the Respondent's counterproposal clause
entitled "Nondiscrimination." Alvarez suggested that the
words "or because of his union activity or his nonunion
activity" be deleted or, in the alternative, that a period be
placed after the word union activity, and the rest of the line
deleted. Alvarez stated that if this was done the Union
would accept the Respondent's entire management rights
proposal provided the words "alone, without interference,
restrictions or recourse to the grievance arbitration provi-
sion hereof by the Union or any employee" were deleted
from the first section of the management rights article.
Alvarez once more stated the Union's objection to the
Respondent's proposed "No-Strike, No-Lockout" article
because the language did not provide equal application of
disciplinary measures and was limited with regard to
arbitration. Also, once again, as he had before, Alvarez
also stated that the Union would agree to the Respondent's
"Reporting Pay" article if it were amended to provide 4
rather than 3 hours' pay to employees reporting for
regularly scheduled work. However, evidently none of
these suggestions were accepted by the Respondent and no
further movement was made with regard to those articles.
Thereafter, on behalf of the Union, Alvarez accepted the
Respondent's article designated "Classification and Rates
of Pay" despite the lack of an attached rate schedule and
further informed Respondent's representatives that the
articles designated "Complete Agreement," "Waiver," and
" The item "Severance Pay," was disposed of at the August 16 meeting,
although this would seem to have been an economic matter. It was evidently
"Full Compensation" would be acceptable to the Union
upon the provision that agreement was finally reached
concerning all other portions of the bargaining agreement.
Also accepted on September 5 was the Respondent's
counterproposal article entitled "Extra Contracts." How-
ever, Alvarez once again rejected Respondent's "Union
Discipline" article. The reason, as hereinbefore stated, was
that Alvarez and the union committee felt that this was
interference with internal union affairs.
At the September 5 meeting, the Union also withdrew a
number of the clauses of its initial proposal. These, for the
most part, were articles which were similar to or had been
substituted by like articles worded somewhat differently in
the Respondent's counterproposal which the Union had
accepted. The Union also resubmitted on that day that
portion of its "Workweek" and "Premium Pay" articles
which dealt with time and a half for time worked in excess
of 8 hours in a single workday, or 8 hours in excess of a
continuous 24-hour period or in excess of 40 hours in a
single workweek or work on Saturdays or Sundays, time
worked on the seventh consecutive day to be paid at the
rate of double time, and emergency time to be paid at time-
and-one-half rate. However, section III of that article was
agreed upon after it was amended with a provision that
employees injured while working would receive a full day's
pay for the day of the injury. The Union resubmitted a
number of other provisions of its original contract proposal
including "Reporting and Call-in Pay," "Union Labor,"
"Military Leave," and "Gloves and Tools."
Thus, the parties stood in relation to each other at the
close of the bargaining meeting of September 5. Before it
closed, however, Alvarez reiterated, as he had at the end of
the prior meeting, that the Union had again made
numerous concessions with regard to its bargaining
proposals and had accepted many of the Respondent's
proposals even though they were onerous to the Union. He
especially pointed out the acceptance of the Respondent's
proposed grievance procedure which he and the Union's
committee considered overly long and complicated and
difficult for the union membership to follow and under-
stand. Alvarez ended by asking Mueller to rply or make
proposals or counterproposals regarding the unresolved
economic portions of the Union's initial proposal given to
the Respondent at the very first bargaining session.
Mueller, on behalf of the Respondent, again refused a
definite response, merely stating that economic proposals
would be forthcoming.
As scheduled, the sixth bargaining session was held the
next morning, September 6, at approximately 9 a.m., the
parties being represented by the same individuals present
at the previous day's meeting. When the meeting began, the
Respondent submitted to the union representatives a copy
of its pension plan in accordance with an earlier request by
the Union. This having been done, the parties then began
to discuss seniority. Again, Alvarez stated that the Union
requested a probationary period of 30 days, evidently
referring to its original proposal for a 30-day union-security
provision, rather than the 90 day contained in the seniority
section of the Respondent's counterproposal. Also Alvarez
not discussed on September 5 inasmuch as agreement had been reached
thereon at the earlier date.
158
BARTLETT-COLLINS COMPANY
told the parties that he did not believe employees who quit
or were discharged should be required to undergo an
additional 90-day probationary period in the event of
rehire. Mueller countered to the effect that a 90-day
probationary period, as proposed by Respondent, was
reasonable. Again, Alvarez also contended that Respon-
dent's proposal with regard to transfers between depart-
ments was not necessary inasmuch as the Union represent-
ed only forming department employees.
In addition, at the September 6 meeting the Union
conceded to the Respondent's proposal that seniority of a
laid-off employee would terminate 12 months after the
layoff. Also agreement was reached on that portion of the
Respondent's seniority proposal which related to nonoccu-
pational illness leave, after the words "unless the Company
agrees to extend such period" was added to the seniority
proposal contained in the Respondent's counterproposal.
Further agreement was reached with regard to seniority in
that the Union accepted Respondent's seniority article
after an amendment providing that seniority would
terminate in the event of an unauthorized absence from
work "without a reason satisfactory to the Company." The
Union also accepted an additional section of Respondent's
seniority proposal after an amendment assented to by the
Respondent to provide recall notices after layoff to be sent
by registered mail. Although the Union made offers with
regard to the temporary layoff provisions of the Respon-
dent's seniority proposal that 7 days be the limit for
temporary layoffs, no agreement was reached on that
particular portion of the seniority proposal submitted by
Respondent.
Following this rather lengthy discussion on seniority, the
parties again discussed and compared the Union's original
proposal with the Respondent's counterproposal and
reviewed them article by article in order to determine
where there existed areas of agreement and which areas
remained not in agreement. In doing this, Alvarez again
submitted for consideration the economic matters con-
tained in the Union's initial proposal and again Mueller
simply answered that these issues were "economic" or
"money" items and, as a result, no discussion ensued with
respect to these so-called economic or money matters.
Again, as he had at the meeting the day before and on
the August 23 meeting, Alvarez made the observation that
the Union had made numerous concessions toward
reaching an agreement in order to receive from the
Respondent a proposal concerning economic matters. But
the Respondent's representatives made no effort to present
an economic proposal or meet the Union's economic
proposals at this time.
There then ensued an extensive discussion regarding the
problem of work by supervisors. Mueller asked the union
negotiating committee members whether supervisors were
performing bargaining unit work at that time and the
answer from several of the committee members was in the
affirmative. One member claimed that employees were
losing pay because of this practice, particularly during
weekends when foremen were utilized to set up the
machines. Mueller then proposed to amend the Respon-
dent's "Work by Supervisors" article by inserting words to
the effect that supervisors would continue to perform work
they had performed in the past. This was immediately
rejected by the Union because, in its opinion, the revision
represented no significant change in the Respondent's
article as originally proposed. In testifying, Alvarez stated
that at no time during the course of the negotiations did
any representative of the Respondent explain to what
extent supervisors had performed bargaining unit work in
the past.
The foregoing constitutes the only progress made up to
and including the end of the sixth bargaining session on
September 6. Alvarez then proposed to schedule a
bargaining session for the following day and repeated what
he had stated at the outset of the first bargaining session;
namely, that the Union and its representatives were
agreeable to work nights, days, Sundays, and all times, if
necessary, in order to reach agreement on a complete
contract. However, this was not agreeable to the Respon-
dent's chief negotiator, Mueller, and no agreement was
reached concerning the date of an additional bargaining
session.
The parties not having been able to reach agreement,
Mueller suggested that a Federal mediator be called.
Alvarez accepted this suggestion. However, he reiterated
that again at none of the bargaining sessions had the
Respondent been willing to discuss economic issues.
Thereupon, at 6 p.m. on September 6 the sixth bargaining
session was adjourned.
In accordance with Mueller's suggestion, Alvarez made
contact with Federal Mediator Arnold, apprising the latter
of the status of the negotiations. Alvarez also informed
Arnold that a strike vote had been taken to begin a strike
against the Respondent on September 15. Thereafter,
Mediator Arnold arranged for a meeting to be held on
September 26. However, several days before the meeting
was scheduled, on September II Alvarez held meetings
with separate shifts of employees in the unit involved and
reported to the members present at each meeting the status
of the negotiations. In doing so, he indicated the areas of
agreement and disagreement. Again, as at the previous
employee meeting held before Labor Day, the union
members by secret ballot voted to begin striking the
Respondent on September 15 even though the meeting
with Mediator Arnold and Respondent was scheduled for
September 26.
The Respondent was aware of the strike vote. As noted
above, Alvarez visited the Bartletts a short time before this
and informed them of the possibility of a strike. By letter to
its employees dated September 12, Respondent informed
the employees of the possibility of a strike and further
informed them that Respondent could lawfully permanent-
ly replace employees participating in such possible strike.
Additionally, Respondent announced to the employees in
the letter that it would continue to operate despite any
strike. It further advised the employees that earlier strikes
at the Respondent's plant did not pay off for the employees
and that any strike contemplated by them at this time
would have like result.
As voted upon at the meeting of September 11, the
members of the Union began to strike the Respondent on
September 15 and established picket lines at the Respon-
dent's premises at that time. As earlier noted in this
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision, the Union also represents the moldmakers in a
separate unit. The moldmakers honored the picket line.
As scheduled by Mediator Arnold, a bargaining meeting
was held on September 26. At the outset of the meeting,
Mediator Arnold requested the parties to set forth those
issues which remained unresolved. At that point, Alvarez
announced that the Union was involved in a campaign to
organize all of the Respondent's production and mainte-
nance employees, which campaign began on August 23.12
Pursuant to Mediator Arnold's request, Attorney Muel-
ler speaking for the Respondent, listed as unresolved from
the Respondent's counterproposal, the initial section of the
"Management Rights" article; the second section the
"Nondiscrimination" clause; the entire article entitled
"Work by Supervisors"; the last paragraph of the "No-
Strike, No-Lockout" article; sections II and VIII of the
"Seniority" clause; all of the "Reporting Pay," "Transfer of
Company Title," and "Union Discipline." Also, Mueller
listed "Union Membership and Checkoff," "Union
Rights," "Restrictions of work by Supervisors," "Hiring,"
"Releasing," "Quitting, and Discharging," "Workweek and
Premium Pay," "Reporting and Call in Pay," "Funeral
Leave," "Shift differential," "Jury Duty," "Union Labor,"
"Military Leave," "Gloves and Tools," "Vacations,"
"Holidays with Pay," "Insurance for Active Employees,"
"Pensions," "Successors," "Transferees and Assigns,"
"Wages," "Cost of Living," and "Duration of Contract
Clauses" from the Union's original proposal.13 After this
listing, Alvarez requested discussion of economic matters
stating that the Union could make no movement until
these issues were presented and discussed. Mueller's reply
was to the effect that an impasse had been reached by the
parties. This was approximately at 10 a.m. The mediator
then separated the parties.
What the mediator discussed separately with each of the
parties is unrecorded in the record.' 4 However, the
mediator requested of the Respondent, when the parties
came together at joint session later in the day, to submit its
economic proposal. This request was honored by Mueller
and the Respondent's economic proposal was laid on the
table. A recitation of the proposals is here unnecessary
because the parties agreed by stipulation of the events of
the final, later meeting that the economic proposals of the
Respondent constituted no more than the Respondent was
giving the employees by way of wages and fringe benefits
than it had been giving the employees in the unit before the
negotiations began. When the proposal was laid on the
table, Alvarez asked numerous questions and made a
statement to the effect that, there being no increase in
wages or benefits, the proposal was "kind of lean." Mueller
answered this observation to the effect that the proposal
was not lean. After the economic proposal was submitted
and discussed briefly, as noted, the mediator again called
the parties into separate caucus and the session was
adjourned shortly thereafter with nothing accomplished.
12 Presumably what Alvarez meant was the intention of the Union to
organize the remaining unorganized production and maintenance employ-
ees not already included in the unit involved in the current proceeding or in
the unit of moldmakers.
13 The details of these unresolved matters are not here set fbrth inasmuch
as they are fully discussed in the factual statements of the earlier meetings.
Thereafter, after several attempts to have another
meeting with a representative of the Mediation and
Conciliation Service, Alvarez was advised by a conciliation
service representative that another bargaining session
would be scheduled for the week of December 10.
Sometime subsequent to that, Alvarez and the Respondent
were advised that the eighth bargaining session, which
proved to be the last bargaining session, was to be held
with a mediator on December 11.
Bud Libby, mediator at this bargaining session, stated at
the outset that he had no available solution to resolve the
dispute and that neither party had indicated a change of
position to him. The Union at this session was represented
by its counsel, John Keefer, who made the observation that
the Respondent's proposal did not represent any change or
improvement over the present practices of the Respondent.
Mueller agreed with this characterization and stated that it
was accurate. There was additional discussion back and
forth but only with regard to generalities. However, it
should be noted that Keefer stated he had recommended to
the Union that it withdraw all of the tentative agreements it
had made and concessions it had made at prior bargaining
sessions. To this Mueller replied that if the Union did so it
would find that Respondent's future bargaining position
could be less favorable than it had in the past. Keefer
indicated that he was aware of this but that, in his opinion,
the Union should not adhere to any previously agreed-
upon contract provisions or any of its earlier concessions to
the Respondent in the absence of some movement by the
Respondent with regard to economic matters.
Thereafter, Mediator Libby met separately with repre-
sentatives of the parties. Less than a half an hour later the
parties met again at which time Libby announced that no
progress had been made. Libby further stated that what
had been unresolved remained unresolved and that
previous tentative agreements and concessions would
remain in existence. The meeting was thereupon adjourned
and no additional bargaining meetings were held from that
date to the date of the hearing herein.
Although, as late as December 11, 1974, the Respondent
refused to move from its position with regard to economic
matters, on February 20, 1975, Mueller advised Alvarez by
letter of that date that the Respondent desired to effectuate
a wage increase of 15 to 20 cents per hour for bargaining
unit employees commencing March 2, 1975. On that date
also, the Respondent notified all employees other than
those represented by the Union that they would receive a
wage increase of a minimum of 15 cents per hour effective
March 2, 1975. In the same notice to its employees, other
than those represented by the Union, the Respondent
reminded its employees that it had placed into effect wage
increases of at least 45 cents per hour since March 1974.
Again, on June 29, 1975, after notification to the Union,
the Respondent put into effect another wage increase.
Although the Union advised the Respondent by letter
dated June 20, 1975, that it did not object to this increase,
14 Although the testimony as to what occurred between the Union and
the mediator was offered by counsel for the General Counsel and for the
Union, the testimony was not permitted inasmuch as the effectiveness of the
Mediation Service could well be hampered by permitting these confidential
conversations to be entered into the records of the Board cases.
160
BARTLETT-COLLINS COMPANY
probably because it could not in view of the rising cost of
living, the Union informed the Respondent that the wage
increase was insufficient and did not begin to compensate
employees in proportion to the rising cost of living and
other economic conditions faced by the employees.
It should be noted, in connection with the wage increases
effectuated by the Respondent between the time of the
beginning of the Union's organizational campaign through
June 1975, that in past years, with only one exception as
testified by Respondent's vice president-secretary, Irving
Bartlett, the Respondent had effectuated but one wage
adjustment each year, this occurring usually during June or
July. Also Irving Bartlett admitted that he could remember
no other time, except the year 1968, in which the
Respondent gave its employees more than one wage
increase in any year before the advent of the Union.
Although, as noted above, there have been no further
bargaining meetings since the meeting of December II,
1974, there have been attempts, although somewhat
tentative, by both parties to seek to move in the direction of
a contract to some minor extent. Thus, in the Union's letter
dated June 20, 1975, in which the Union consented to the
Respondent's contemplated wage raise to be effectuated on
June 29, the Union's counsel suggested that bargaining
begin once again if the Respondent was "considering any
movement whatsoever with respect to existing bargaining
issues, particularly those relating to economic matters."
Respondent's counsel, by letter dated July 18, 1975, replied
that with regard to union counsel's statement concerning
the readiness of union representatives to engage in further
collective bargaining, inquired whether the Union had any
change of position with respect to existing bargaining
issues as compared with the positions taken by the Union
at the last two meetings of the parties. Mueller, in this
letter, further inquired if the letter would support an
inference that the Union no longer considered noneconom-
ic matters to be an issue, and if this was so, a statement to
such effect might be helpful. In the same letter, Mueller
indicated that the Respondent had offered to change its
position on September 26 to Mediator Arnold in several
respects. 15
Mueller also indicated in that letter of July 18, 1975, to
the Union's counsel that the Respondent might be willing
to change its position with respect to its management rights
clause, its no-strike, no-lockout clause, and its work by
supervisors clause. By letter dated July 25, 1975, the
Union's counsel wrote Mueller stating, among other things,
that "in order to avoid any misunderstanding, you are also
advised that the Union definitely considers all previously
discussed, unresolved noneconomic matters as viable
bargaining issues between the parties." Union counsel also
stated in that letter that the Union's position with regard to
the bargaining negotiations had not changed since Decem-
ber I I, 1974, the date of the last bargaining session.
By letter dated September 22, 1975, in response to union
counsel's letter of July 25, 1975, Mueller, among other
things, stated as follows:
iS Inasmuch as testimony with regard to any er parle conversations
between either of the parties and the mediator were excluded or expunged
from the record. I do not consider as evidence any matter which Mueller
referred to as having been communicated to the mediator on September 26
. . . you, as counsel of record for the Union as a
member of the Union's bargaining team on December
11, 1974, are hereby advised that the foregoing offers
are now still outstanding and available for acceptance
by you or by Mr. Alvarez and his bargaining team.
The first of these offers was with respect to the Company's
management rights proposal. Respondent was willing to
change its management rights clause to a minor degree by
adding the words "except to the extent that such rights are
expressly limited or restricted by this agreement" and the
rest of the managements rights clause would remain
unchanged as submitted by the Respondent. This, of
course, would retain for the Respondent the complete
management rights as outlined in its very lengthy manage-
ment rights proposal and ending that such management
rights were to be without interference, restrictions, or
recourse to the grievance and arbitration provisions of the
agreement.
With regard to the "No-Strike, No- Lockout" proposal,
the Company's amendment would merely add the state-
ment "except for the sole issues of whether the employee,
in fact, violated this article" still retaining the right of the
Company to discharge and mete out punishment or
discipline to any employees without recourse by the said
employee or the Union to the grievance or arbitration
procedures of the contract. With respect to the "Work by
Supervisors" proposal, the Company reoffered, as it had at
earlier bargaining sessions, to substitute in lieu of its
original proposal the words "supervisors will continue to
perform the work they have done in the past."
It should be noted that these later offers to the Union
were made after the commencement of the hearing in the
current proceeding. It should also be noted that, during the
entire period from the inception of the Union's campaign
to organize the unit employees up through and including
the dates of the hearing herein, the Respondent has always
informed the Union of any action it intended to take which
could affect in any way any of the employee-members in
the unit represented by the Union. Thus, in addition to the
request for the Union's consent to the wage increases, as
above recited, the Respondent has requested the Union's
consent to such things as company picnics, gifts of fruit at
Christmastime and during the spring of 1975, and also has
given the Union, upon its request, information such as the
names and addresses of employees who were hired by the
Respondent after the strike began on September 15, 1974,
who were included in the trust agreement for the employ-
ees' annuity or retirement fund and, in addition, has
informed the Union about increased cost of certain
insurance to which employees are entitled on a voluntary
basis. Thus, with regard to its relations with the Union,
except for the extreme difficulties in the negotiations, the
Respondent has been careful to notify the Union with
regard to any contemplated action which could have an
effect on unit employees.
However, before the strike began, and while negotiations
were taking place, and subsequent to the strike, certain
as contained in his July 18, 1975, letter to the Union's counsel. I merely cite
the letter as a possible indication that the Respondent was at that time. July
18. 1975, possibly ready to move from its former position with regard to
noneconomic matters.
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
events occurred, hereinafter recited, which are alleged to
have been violative of the Act and which the General
Counsel and the Union contend reflect the Respondent's
true attitude toward the Union and unionization of its
employees and which, they contend, should be taken into
consideration in assessing whether the Respondent ap-
proached bargaining as required by Section 8(d) of the Act.
D. Interference, Coercion, and Restraint
1. Interrogation and threats and alleged acts
thereof
Approximately 2 or 3 weeks before the strike com-
menced on September 15, Supervisor Clyde Adams of the
mold shop engaged employee Darrell Lett in a conversa-
tion, asking Lett what the latter would do in the event
forming department employees went out on strike. Lett
answered to the effect that he would honor the picket line.
Adams then inquired of Lett as to why Lett would do so.
Lett answered that he did not desire to jeopardize his union
card. Adams then stated to the effect that the forming
department employees, the unit represented by the Union,
were "riding on the moldmakers' back." He then told Lett
that the latter was placing himself in a precarious position
should he honor the picket line and further explained this
statement by telling Lett that the latter could lose his job
and retirement benefits if Lett honored the picket line.
Again, approximately I week before the strike began, in
the mold shop, Adams inquired of Lett whether the latter
intended to honor the picket line. Lett replied in the
affirmative. As he had done before, Adams then informed
Lett that there was a "good chance" that Lett would lose
his job and also his pension if Lett honored the picket
line.16
Adams was again involved in a conversation with
another moldmaker, Harold Alberding. Adams asked
Alberding what the latter thought about the Union and
also if the moldmakers were going to honor the picket line
in event of a strike. Alberding answered that he could not
speak for the other employees. Upon this reply, Adams
asked Alberding about the latter's personal feelings
concerning the strike and the possibility of a picket line
1' From the credited testimony of employee Lett. Adams, in testifying,
although stating that he held a withdrawal card from the moldmakers unit
of the International Union, denied ever making any statements of the type
recited above to Lett. He stated, to the contrary, that the employees were
asking whether the Respondent would continue to operate in the face of a
strike and he infiormed the employees that he, Adams, had been so
informed. But in his testimony, Adams maintained that that was the only
information or statement that he imparted to Lett with regard to the strike.
Upon my observation of the two witnesses and upon the manner in which
they testified, I regard Lett as the more credible of the two, especially in
view of some of Adams' testimony which was somewhat equivocal even in
answering leading questions of counsel.
17 Adams denied specifically that he told Alberding that the day he went
on strike he would lose his job. Adams also testified that the conversations
were not as Alberding had testified. Adams stated that he had been a
member of the Union and had a withdrawal card which was given him when
he was made a supervisor. Formally, Alberding had been Adams' supervisor
before he returned to rank and file. Adams testified that the conversation
came up only in the context in which Adams was concerned about losing his
union card if he worked and that it was Alberding who stated if Adams
made a single mold he would be through with any possibility of continuing
with the Union. Adams stated that he was concerned with his future because
he did not know what would happen and could possibly return to rank and
and whether Alberding would honor the picket line.
Alberding answered in the affirmative. Adams then told
Alberding that in the past the employees had not remained
united during strikes and that the strike by the employees
in the unit involved in the current proceeding would not
continue for more than 2 weeks. At one period during this
conversation Adams told Alberding "you know the day
that you don't cross the picket line, is the day you lose your
job."
Sometime later, on approximately September 11 or 12,
while waiting for a light to change as he was driving his car,
Alberding was engaged by Adams in another conversation.
Again Adams asked if the moldmakers would honor the
picket line and Alberding again answered in the affirma-
tive. Adams then inquired of Alberding whether the latter
was invited to a union meeting to be held that evening at
which time a strike vote was to be taken. Alberding again
replied in the affirmative.17
Again, on approximately September 12, Adams ap-
proached employee Lett and another moldmaker, Johnny
Roberts, while they were in the mold shop working and
asked the two whether there would be a picket line on
September 15. Roberts answered that as far as he knew
there would be one on the 15th. Adams then stated "well, if
they do, are you going to cross it?" To which Roberts
answered that he just did not believe in crossing picket
lines. At this point Adams interjected, "Well, I guess you
know if you don't, you are probably going to lose your job,
your retirement and everything you worked for all these
years?" Roberts answered, "Well, I guess that's just the
way it'll have to be, because I'm not going to cross one."
There was further conversation during which time Roberts
stated that if he were discharged for not crossing the picket
line he would put in for unemployment and get it and also
put in for retirement and could get that too. Roberts also
stated that he could file charges against the Company for
firing him for not crossing the picket line and that he
thought he could win that charge too. Adams then stated to
Roberts to the effect that to be honest with Roberts,
file and if he lost his union card because he worked during any possible
strike by the moldmakers he could, in such event, lose his right to
membership in the Union which would, in that respect, possibly affect his
job future. Although I do, to an extent, credit Adams to the effect that there
was some conversation with regard to Adams' future as a member of the
moldmakers union, I also conclude, because of other factors, that Adams
did inquire whether Alberding would cross the picket line and also told
Alberding that if the latter did cross the picket line he would lose his job.
This finding in based not only upon my observation of the witnesses, but
also upon the fact that a number of other General Counsel's witnesses, as
hereinafter related, credibly testified to similar conversations between
themselves and Adams. Thus, in each case, although Adams denied the very
parts of those conversations which could constitute violations of the Act, it
would have required each of the General Counsel's witnesses who testified
to these acts and conversations to have entered into a conspiracy to testify
to matters which did not occur. I could conceive of a single individual
possibly doing so, but I cannot and do not accept the probability that these
witnesses were testifying to matters which they concertedly invented from
the whole cloth. Accordingly, I credit the witnesses for the General Counsel
for the most part except as hereinafter set forth and do not credit Adams'
denials of those portions of the conversations which would constitute
violations of the Act.
162
BARTLETT-COLLINS COMPANY
Adams did not know what the answer was but all he knew
was what he had been told.18
In another conversation at approximately the same time,
in the mold shop, Adams inquired of moldmaker James
Morgan what the latter would do if a strike was in progress.
Morgan answered that he would "lay carpet" with a friend.
This conversation occurred just at the end of the day when
Morgan was leaving. Adams stated to Morgan that the
latter was making a big mistake and that "we could lose
our jobs if we went out on strike." '9
Approximately 2 weeks before the strike commenced,
Adams engaged apprentice moldmaker Richard Roberts in
a conversation in Adams' office where Roberts had gone to
receive his assignment. Adams asked Roberts how the
latter felt about the anticipated strike and whether Roberts
would participate. Roberts answered to the effect that he
would honor any picket line. Adams then stated that
Roberts could lose his job or his retirement if he did so. In
either this or another conversation, Adams told apprentice
Roberts that the men who honored the picket line could
also lose their jobs or their retirement. Adams stated that
"some of the guys in the mold shop have a pretty good sum
of money in retirement," and that he felt that these men
could possibly lose that money too. On the following day,
Adams again involved apprentice Roberts in a conversa-
tion when Roberts went into Adams' office to ask for an
assignment. The conversation concerned the possible strike
and the same type of question and answers were given
between the two as in the first conversation. There was a
third conversation between the two and that conversation
also concerned the same matters. The same questions were
asked and the same statements made by Adams to the
effect that the moldmakers who honored the picket line
could lose their jobs and their retirement. 20
Approximately a week and a half before the commence-
ment of the strike, Darrell Lett and Richard Roberts were
in the office of James Roth, Respondent's personnel
manager and an admitted supervisor within the meaning of
the Act, for the purpose of signing for savings bonds. While
Lett was signing for his bond, Roberts and Roth were
having a conversation regarding fishing. Then Roth asked
what Lett and Roberts were going to do in the event the
Union placed a picket line at the Respondent's facility.
Both Lett and Roberts stated that they would honor the
picket line. To this admission, Roth replied that he thought
it would be a "bad deal" for the men because they could
lose their jobs and their retirement.2 '
'a From the credited testimony of Roberts. I credit Roberts over the
denials of Adams for reasons heretofore set forth.
19 From credited testimony of Morgan whom I credit for the reasons
previously stated.
20 From credited testimony of Roberts which is credited for reasons
stated heretofore.
2' From credited portions of the testimony of both Lett and Roberts. In
effect, Roth admitted that he told both of these individuals that they could
lose a portion of their retirement if they were permanently replaced.
However, both Lett and Roberts used the words "lose your jobs" or words
to that effect. Accordingly, I credit the version of the conversation as related
by both Lett and Roberts whom I have credited in other respects.
z2 From credited testimony of employee Lett. Although Roth denied that
he had the conversation with Lett and Roberts. he did admit to the
conversation between himself and Lett in which the card was discussed.
Roth's version of the conversation was that it was Lett who began the
Some 2 or 3 weeks before the strike commenced, Darrell
Lett and Personnel Manager Roth had a conversation in
the mold shop. In that conversation, Roth asked Lett what
the latter was going to do in the event of a picket line. Lett
stated that he would not work and would not cross the
picket line because it would put his card in jeopardy,
referring to his journeymen's card from the Union. At this
point, Roth stated, "You mean you'd take a chance on
losing your job and your retirement over that card?" To
which Lett answered in the affirmative. Roth replied to the
effect that the card sure meant a lot to Lett. Lett then went
on to explain to Roth that with the card he could go
anywhere moldmakers were needed and obtain work and
that without it he could not. To this statement, Roth
rejoined, "Well, you know that you don't have to have that
card to work at Bartlett-Collins." 22
After the strike began, Robert Robertson, a supervisor in
the selecting and packing department, had conversations
with various employees concerning the picket line. Accord-
ing to employee Georgene Witham, an employee of the
department, Robertson asked Witham whether Witham's
husband was walking the picket line and that this question
was repeated almost daily with Robertson asking Witham
what was occurring on the picket line and if her husband
was still out there. Witham further testified that Robertson
asked her at one time if she knew anything about a car
being burned; and whether any of the employees on the
picket line would attempt to burn a car. Witham denied
any knowledge of knowing anybody who would burn a car.
On cross-examination, Witham testified that on the first
time that Robertson spoke to her he asked her whether
Doug Bell was on the picket line.2 3
Employee Joanne Harper testified that Robertson had a
conversation with her approximately a week after the strike
commenced when she was in the break area. According to
Harper, Robertson asked how Harper's father was doing
and whether he was still on strike. Robertson stated that he
had seen her father earlier during the strike but had not
seen him lately. Harper replied that her father was down at
another area on the picket line where the trucks normally
entered the premises. Then they discussed the length of the
strike. Harper stated that she wished that the strike would
soon come to an end. According to Harper, Robertson
then stated, "Well, it won't do them no good no matter
how long they're out. Because Bartlett has about
S40,000,000, he can outlast them or he can just shut the
plant down."
conversation about the stnke by asking whether the Company would
continue operations if there was a strike. According to Roth, the
conversation with regard to the card did not differ in any marked degree
from the conversation as alleged by Lett. He admitted that he told Lett that
he did not need a card to work for Bartlett-Collins. On the basis of the
agreed-upon portions of the testimony of Lett and Roth and from my
observation of both of these individuals, I find and conclude that Lett's
version is the more accurate, although, perhaps, there were portions in Lett's
testimony, as brought out on his cross-examination. which were either
incomplete or perhaps slightly at variance with some of the direct testimony.
However, on the basis of the record as a whole with regard to the testimony
of both of these individuals, I conclude and find that Lett's version is, at the
very least, an accurate resume of what occurred.
21 Bell is alleged in the complaint to have been discharged for his support
of the Union.
163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another employee, Erma Morrow also testified to a
conversation with Robertson. According to Morrow,
Robertson and employee Jackie Cope had a conversation
on September 20, 5 days after the strike began, about 7 to
7:30 p.m. Morrow testified that she overheard Robertson
telling Cope "that if all the women got involved with the
Union they would get fired and it wouldn't help anyway."
She further testified that Robertson started to talk about
the strike that had occurred in the Respondent's plant in
1950 and stated, "It just didn't help anything at all it, just
got a lot of people fired and everything."
I credit the testimony of the three witnesses who testified
as to these matters involving Supervisor Robertson and
conclude that the conversation occurred in much the vein
that they related in their testimony.2 4
Another supervisor who was involved with alleged
unlawful conversations with various employees was Rich-
ard Turner, a supervisor in the selecting and packing
department. On September 15, on the shift between the
hours of I and 3 a.m., Turner interrupted a conversation
between employees Randall Millikan, Billy Howk, George
Howk, and Mark Beaver and asked whether they were
going to walk the picket line when the strike began as
scheduled for 7 a.m. that day. Millikan answered that he
would walk the picket line. Turner then stated to the group,
"Well, I wouldn't. My job mean too much to me. I'd try to
stay in and keep it .... I wouldn't take a chance on losing
it." And then Turner stated that he would not walk a picket
line for $35 a week. Evidently, Turner was referring to
strike benefits to be paid for walking the picket line.25
However, with regard to testimony by employee Bell that
in the presence of Floreine Aggers and Margaret Martin,
Richard Turner asked Bell whether the latter intended to
participate in the strike, I do not credit Bell. Allegedly, this
conversation took place on approximately September 1.
However, Turner testified that he had not worked for years
on the shift at which Bell testified this question took place.
Allegedly, according to Bell, the conversation occurred at
approximately 8 to 9 p.m. on the 3 to 11 shift. Inasmuch as
I find and conclude that Turner did not work that shift, I
also conclude that this conversation or this questioning did
not take place. I therefore do not credit Bell in this respect.
24 I have taken into consideration in making this credibility finding the
testimony of Robertson to the effect that he had seen Witham's husband
and Harper's father on the picket line and it would have served no purpose
for him to ask whether they were on the picket line. Robertson further
denied he had had any conversation with employee Witham with regard to
employee Doug Bell. Furthermore, Robertson admitted he talked with
employee Jackie Cope several times, but denied that he had any
conversation with Cope to the effect that anyone would be fired and that the
strike would not help anything or that the 1950 stnkejust resulted in people
losing their jobs. He testified that he did state to Cope "if a lot of people
walked out they would be replaced and that in the 1951 strike a lot of people
did not return to work." Although Robertson's testimony would be
believable in that employees could misinterpret a statement made by a
supervisor such as those which Robertson testified he made, and in order to
give this innocent connotation to the several conversations, it would be
necessary to find that the three employees involved were either exaggerat-
ing, misinterpreting, or, in fact, lying with regard to the alleged statements
made by Robertson. I find that, although there was some lack of
definiteness in regard to some of the testimony of these three witnesses with
regard to time and place, a careful search of Robertson's'testimony reveals
that he. too, was somewhat indefinite as to when and where and under what
circumstances the conversations occurred. Accordingly, by reason of this
Bell further testified as to an additional conversation
with Turner on September 7. According to Bell, he
observed Turner destroying various communications is-
sued by the Union setting forth its purposes and benefits
which had been posted in the Respondent's employees'
canteen area. While doing this, Turner told Bell, according
to Bell, "I don't know what those stupid bastards think
they are accomplishing by putting these out." For the
reasons heretofore recited as to why I did not credit Bell, I
do not credit him in this respect either. I therefore conclude
that this incident did not occur as related by Bell.26
I conclude that all of the foregoing conversations
involving interrogations of employees as to whether they
were going to participate in the anticipated strike consti-
tuted unlawful interrogation in violation of Section 8(a)(1)
of the Act. Thus, Supervisor Adams and Supervisor Roth's
interrogation of employee Darrell Lett, as set forth above,
constitutes interrogation in violation of Section 8(aX)() of
the Act when they asked, at separate times, whether Lett
intended to honor the picket line in the event that the
Union established such a picket line. Additionally, Adams'
interrogation of Lett and Roberts on September 12 and
employee Morgan on September 13, or approximately on
those dates, constitutes unlawful interrogation which I find
to have been violative of Section 8(a)(3) of the Act.
Moreover, Roth's interrogation of Lett on August 23, and
of Lett and Alberding during the first part of September,
constitutes such violations and I so find. I also find and
conclude that Robertson's interrogation of employee
Georgene Witham on an almost daily basis with regard not
only to her own activity, but to the activity of others
constituted unlawful interrogation in violation of Section
8(aX!) of the Act. Additionally, Supervisor Richard
Turner's interrogation of Randy Millikan on September 15
between I and 3 a.m., in the presence of employees Howk
and Beaver, whether they were going to walk the picket line
constituted unlawful interrogation. Also, the interrogation,
as set forth above, of employee Harper by Supervisor
Robinson constituted unlawful interrogation when Robert-
son questioned Harper regarding the latter's union affilia-
tion and the participation in the strike of relatives and
other employees.
and by reason of my observation of the witnesses, I find and conclude that
the versions given by the three witnesses, Witham, Harper, and Morrow,
were, in substance, a fair representation of the conversations that did occur.
Additionally, with regard to the statement that Bartlett had about $40
million and could outlast the Union or could just shut the plant down,
Mattie Thomas, another employee who was present at the time, confirmed
the testimony of Harper.
25 From the testimony of employee Millikan. Turner testified that he did
participate in a conversation on that morning because he overheard the
others trying to induce Billy Howk to sign up to go on the picket line and
that Howk was only 18 years of age. Turner testified that he participated in
the conversation only to the extent of telling Howk that he was too young to
be walking a picket line. Turner denied that he asked Howk who was going
to picket or anything to that effect. Nor did he mention the sum of $35 or
anything in that vein. Again, I credit the testimony of Millikan against the
mere denials of Turner and find that Millikan did not, upon cross-
examination, change his testimony in any material respect. Accordingly,
and upon my observation of these witnesses, I credit Millikan.
6 Although it is possible that Turner could have been present at a time
other than his normal shift time, I find nothing in the record aside from
Bell's testimony to establish that Turner was present off his normal shift.
164
BARTLETT-COLLINS COMPANY
In addition to the above findings of unlawful interroga-
tion, I find and conclude that these supervisors also
violated Section 8(a)(1) by coercively threatening employ-
ees that they would lose their jobs if they honored the
picket line. The Respondent, through its witnesses and in
its brief, argues that these supervisors were merely
explaining to the employees that they could be replaced in
the event that they were to go on strike in sympathy with
the employees in the bargaining unit or if they refused to
cross the picket line established by such employees. I do
not agree. Thus, when Supervisor Adams, at the time he
interrogated employee Lett, told the latter that he could
lose his job and retirement, such statement constituted a
violation of Section 8(a)( ), even assuming it was merely an
expression of the Employer's right to permanently replace
strikers. The Board has held that the telling of employees
that they will be permanently replaced if they participate in
a strike without, at the same time, informing their
employees of the corresponding right of reinstatement
upon conditional application for reinstatement is violative
of Section 8(aXI) of the Act.27 Also Adams' telling Lett on
September 15, that there was a good chance that Lett
would lose his job and retirement over the strike consti-
tuted an equally violative threat. Additionally, Personnel
Director Roth's telling employee Lett that the latter would
be taking a chance of losing his job and his retirement if he
honored the picket line fell within the same classification of
violation. I find that this, too, constituted a violation of
Section 8(a)(1) of the Act. Roth's repetition of this same
theme at a later date, as set forth above, constituted an
additional violation of the same type and I so find.28
Additionally, I find that Robertson's statement to Cope,
to the effect that individuals working in the selecting
packing department who became involved in union
activities would be terminated, constitutes an additional
coercive threat violative of Section 8(aX)() of the Act.29
Finally, I find and conclude that the conversation between
Robertson and Harper in which Robertson questioned
Harper about her father being on strike and in which
Robertson stated that "Bartlett had about $40,000,000"
and that the Respondent could outlast the Union or the
Bartletts could just shut the plant down constituted a threat
of loss of employment for all of the employees because of
their union activity and sympathies for the Union. It is
unnecessary to cite cases to sustain a finding that such a
statement is violative of Section 8(a)(1) of the Act.
In making the foregoing findings, I have considered the
fact that on September 12, 1974, the Respondent submitted
to all of its employees a notice on its letterhead signed by
Charley Bartlett and Irving Bartlett to the effect that the
Respondent was aware of the fact that there might be a
strike within the next few days. In that notice Respondent
set forth the legal rights of both the Respondent and the
employees with regard to what the Respondent, at least,
27 See Hicks-Ponder Co., A Division of Blue Bell, Inc., 186 NLRB 712. 725
(1970): West Coast Casket Company, Inc., 192 NLRB 624, 640 (1971).
28 I have not heretofore set forth certain conversations between
employee Morrow and head lehrman. David Haney. I have not recited these
facts because it is clear, from Morrow's testimony, that the conversations
between Morrow and Haney with regard to the Union and alleged threats
and interrogation constituted mere joking and banter between the two. I
have theretofore not found it necessary to recite these matters inasmuch as,
considered would be their respective rights in the event of
an economic strike. Contained in this notice was a sentence
which read "The Company has the right to operate its
business and to fill permanently its jobs in case of a strike."
The Respondent would seem to argue that in the light of
this notice and in the light of the testimony of James Roth,
for one, that he had knowledge of this notice, that Roth
would not have made the statement of which he is accused
because he knew the employees were already apprised of
the fact that they could be replaced if the Respondent
chose to operate during the strike. However, even though
the Respondent did notify the employees with regard to
their rights and, even assuming knowledge on the part of
each of the Respondent's supervisors, above named, that
the Respondent had notified the employees of the Respon-
dent's purported right to replace them if they went on
strike, the statements that the employees could possibly
lose their jobs and their pension rights still constitute
violation of the Act. Even though the employees may have
had such knowledge in their possession, and even assum-
ing, arguendo, that the strike was purely an economic strike,
the statements by the supervisors, above named, consti-
tuted a threat of job security if the employees chose to
support the Union. The cases above cited support this
finding.
It goes without saying that a threat of loss of employ-
ment remains a threat of loss of employment even
assuming prior knowledge on the part of the employees
threatened that they could lose their jobs in the event of
activity on their part. Moreover, the statement issued by
Respondent, that it had the right to operate its business
and to fill permanently its jobs in case of a strike, was not
of the same degree of threat or coercion as that of
supervisors' telling employees that they could lose their
jobs and their pension it they went on strike.
2. Impression of surveillance
Erma Morrow, who quit the Respondent's employ on
September 24, 1974, and some of whose testimony is
heretofore set forth, had engaged, in the period immediate-
ly before she quit, in assisting the Union to organize the
employees in the selecting and packing department. She
had made contact with Alvarez on behalf of the employees
in that department and had scheduled a meeting with
Alvarez around that time. On September 23, she received a
telephone call, which was answered by David Haney, head
lehrman, who told her in effect that the telephone call was
from "the Union representative about the meeting to-
night." In testifying, Morrow, as noted above, realized that
Haeny was talking to her in a joking fashion and I have
heretofore refused to find that this was a violation.
However, on September 25, Morrow went to Supervisor
Andrew Meyers' office where, as she was entering the
office, she overheard a conversation between Meyers and
under the circumstances, they could not constitute either unlawful
interrogation or threats constituting coercion and restraint. This especially is
true in view of Morrow's testimony that she knew that Haney was a
supervisor and could not sign a union card and she admitted that she asked
Haney to sign the card merely as a prank orjoke.
29 Actually what Robertson told Cope was "All the women who got
involved with the Union would get fired and it wouldn't help any."
165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Ronald Wade. Wade asked Meyers what the
women in the selecting packing department intended to do
about the Union. By this time, Meyers was aware that
Morrow had entered his office and turned around toward
her and stated, "You'll have to ask Erma, because she was
the head of the Union." Morrow replied that she had no
more knowledge regarding the Union than did other
employees.30
Upon the basis of the foregoing, I find and conclude that
the statement by Meyers gave Morrow the impression that
he knew of her activities and that Respondent was
conducting surveillance of the union activities of Morrow
and other employees in the department. Accordingly, I find
and conclude that Meyers' statement created the impres-
sion of surveillance which constituted interference and,
accordingly, is violative of Section 8(aX I) of the Act.
3. The furnishing of work gloves without charge
The complaint herein alleges that the Respondent
furnished work gloves without charge to employees in the
so-called hot end during the strike when the regular hot
end employees represented by the Respondent were on
strike. The furnishing of the work gloves is alleged in the
complaint to be a violation of both Section 8(a)(I) and
8(a)(5) of the Act. In other words, the General Counsel and
Charging Party contend that the furnishing of the work
gloves constituted interference, restraint, and coercion
within the meaning of Section 8(a)(l) and also constituted
unilateral action on the part of the Respondent without
consultation with the Union at a time when the Respon-
dent, in its bargaining with the Union, refused to furnish
work gloves to the employees in the unit represented by the
Union. I shall at this juncture deal only with the 8(a)(1)
aspect of the complaint allegations.
There is no question that over the period of years the
Respondent has not furnished free work gloves to any of its
employees in the normal course of events in the operation
of the "hot end" of the plant. In connection with this, it has
heretofore been noted that the Respondent refused to
consent to the Union's request that such hot end employees
be furnished with necessary work gloves free of charge by
reason of the fact that the work involved required the
handling of material, the heat of which could readily injure
an individual. It is further established that the Respondent
required its employees in the hot end to wear work gloves.
In support of its allegation and contention, the General
Counsel presented a single witness, employee Edward
Adney, who testified that he had formerly been an oiler but
on the second day of the strike was assigned to the
operation of a paste mold machine which required the
handling of hot material. The gloves which Adney first
wore were long sleeve gloves. When Adney's foreman, Bill
Adams, saw these gloves, he admonished Adney, telling the
latter that the gloves were unsafe and informed Adams that
30 From the credited testimony of Morrow. While it is true that Morrow
continued to assist the Union in organizing the selecting-packing depart-
ment employees after she left the Respondent's employ on either September
24 or 25, inasmuch as she no longer has any connection with the
Respondent and was subpenaed to testify at the hearing, I find that she can
afford to be more truthful than Respondent's Supervisor Meyers who denied
that any such conversation occurred. He stated that he could not remember
whether Wade was in his office at the time and that Morrow merely came
there was a sufficient supply of gloves free of charge in the
cloakroom. This incident occurred approximately I week
after the strike began and Adney continued to be furnished
free gloves until he, too, left the plant to join the strike at
the end of approximately 1 month.
Adney further testified that virtually all of the employees
working on the hot end were required to use gloves because
of the temperature of the hot glass that was handled. He
further testified that employees could use anywhere from
15 to 20 pairs of gloves in a month's time, depending upon
the nature of the work performed by an employee.
Furthermore, Adney testified that before the strike the
employees purchased all of their own gloves from vending
machines on the Respondent's premises at a cost of
between 70 cents and $1.20. However, Adney admitted, in
testifying, that the employees were not required to
purchase the gloves from the vending machines and were
permitted to purchase them elsewhere, provided they met
safety requirements.
Respondent's official, Irving Bartlett, testified that the
employees normally did, indeed, furnish their own work
gloves and that the machines for vending such work gloves
were located on the Respondent's premises in order to have
an accessible source of supply and in order to furnish the
work gloves at a minimal cost to the employees. Bartlett
further testified that the only time the Respondent
furnished free work gloves was during emergencies and
that the strike period was just such an emergency until
approximately the middle of January 1975. The emergen-
cies referred to by Bartlett were those situations where an
employee was temporarily transferred from a job which did
not require gloves to another which required gloves and
which transfer was at the Respondent's request. Addition-
ally, Bartlett testified that some years before, in either 1970
or 1971, some emergency repairs on the furnaces became
necessary and employees from other departments were
called upon to assist in the process of making these
emergency furnace repairs. At that time free gloves were
furnished to these employees who were transferred to
perform this emergency work.
Bartlett testified that the reason the strike period which
began on September 15, 1974, was considered an emergen-
cy was that when the regular employees of the hot end went
on strike employees who were unfamiliar with the work
and replacements were brought in to perform the hot end
work. Accordingly, this created an emergency situation in
which the Respondent was forced, by reason of such
emergency, to furnish free work gloves. There was a
constant transfer of employees from one job to another and
one section to another during this period and, accordingly,
the necessity for furnishing work gloves without charge did
not conclude as an emergency matter until approximately
January 15, 1975, when the department became stabilized
with, presumably, steady replacements who, by that time,
into the office to tell him that she was quitting. He emphatically denied that
he made any statement about Morrow s being a union leader or any other
words to that effect. Under all of the circumstances and upon my
observation of the witnesses and because I conclude that Morrow was the
more objective of the two, I credit Morrow. Additionally, significantly,
Wade did not testify with regard to this conversation and was not asked
whether he was present. Accordingly, Meyers' denial is not substantial by
any testimony given by Wade.
166
BARTLETT-COLLINS COMPANY
had learned their respective jobs. Since that time the
furnishing of work gloves free of charge has been almost
completely brought to a halt.
While there is no doubt that the Respondent, in the past,
and before the strike situation occurred on September 15,
1974, did not furnish work gloves to its employees free of
charge except in the case of emergencies or temporary
transfers, I cannot conclude that during the long period
from September 15, 1975, until January 1976, such an
emergency existed as required a change in company policy.
While an emergency might have existed during the first few
weeks of the strike period, it is difficult to accept the fact
that a period of approximately 4 months constituted a
continuing emergency period. I do not attempt here to
second guess the Respondent as to the necessity for the
giving of emergency work gloves at no cost to the
employees who were working during this period, but, at
least, to the employees who were on the picket line and
were represented by the Respondent it could readily have
the effect of interfering with these employees' Section 7
rights in that the likely effect on such employees would be
that they could get without the Union free work gloves
whereas through their bargaining representative they could
not. It is undisputed, that, in such instances, it is not
necessary to show either the Respondent's motivation or,
on the other hand, the reaction of the employees in the
bargaining unit who were likely to be affected. It is only
necessary, in such instances, for counsel for the General
Counsel to demonstrate that the probable consequence of
such action would be to display to the employees that it
was not necessary for them to be represented by the Union
in order to obtain benefits which they had not been able to
obtain through the Union. This he has done. Accordingly, I
find that the furnishing of free work gloves to nonstrikers
constitutes interference within the meaning of Section
8(a)(1) of the Act and is therefore violative of that section.
4. The no-solicitation rule and its enforcement
The complaint alleges, in substance, that the Respon-
dent, through its supervisors and agents, Charles Warren
and Andrew Meyers, on or about September 25 and 26,
discriminatorily enforced a rule prohibiting solicitation of
union membership during its employees' nonworking time
or on company time or on company property by orally
advising its employees of the rule and warning them of
penalties if such rule were violated.
Additionally, the complaint also alleges that Ronald
Wade threatened discharge or loss of employment for
union activity of the employees in the bargaining unit on
such time.
31 All of the foregoing from the credited testimony of Larry Harper.
Theresa Smith, Georgene Witham as corroborated by Smith, and Joanne
Harper. I find the testimony of these employees to be consistent on both
cross and direct examination and, additionally, I find that the testimony was
also consistent one with the other as to the use of the words "company time"
by Wade. In testifying, Wade did admit that Meyers had instructed him to
inform the employees that the employees would be subject to disciplinary
action if they were found to be soliciting signatures during "working hours."
Wade testified, on cross-examination, that he told the employees he had
been instructed by Andy Meyers to tell the people who worked under him
that they were not supposed to carry on union activities or solicit signatures
on union cards during working hours and that if they did engage in such
activity they would be subject to disciplinary action. Furthermore, upon
Supervisor Ronald Wade was involved in several
conversations with employees in the select-pack classifica-
tion with regard to union solicitation. Thus, on approxi-
mately September 22, at or about 6 in the evening, on the
stairway going up to the box loft, floor boy Larry Harper
was told by Wade that Supervisor Meyers had instructed
Wade to tell the employees that "If we was caught signing
cards on company time, that something bad would happen
to us." Also present at that time, beside Harper, were
employees Connie and Cecil McClaffin. Again, on Septem-
ber 24 at approximately 4 to 4:15 p.m. Wade engaged
employees Georgene Witham, Theresa Smith, and Grace
Little in a conversation. He told them, in effect, that the
Respondent would terminate them if they were caught
soliciting signatures on union authorization cards or
otherwise found to be engaged in union activities. No time
or place was specified by Wade. At that time Wade told
these employees that he had been so instructed by someone
in the "Main Office." On another occasion, on the same
day, Wade told employees Joanne Harper, Hattie Stock-
ton, and Pat Harvey that Andy Meyers had instructed him
to inform employees that Meyers did not care whether they
joined the Union but that they were not permitted to solicit
signatures for the Union on "company time." 3
Another supervisor involved in conveying no-solicitation
warnings to employees was Charles Warren of the selecting
and packing department: On approximately September 25
at 3:50 in the afternoon of the day he spoke to employees
Theresa Smith and Mildred Conners. Warren told the
latter that he had been instructed by Meyers to inform
employees that "anyone caught soliciting the union cards
would be subject to being . . . their jobs would be
terminated." Warren admitted, in testifying, that when
Theresa Smith asked him what he meant by the remark
that if anyone was caught soliciting union business they
would be subject to release, he stated, "Well, if you are
caught trying to get people to sign union cards on company
property, you are just liable to get fired." This would seem
to be an admission that the incident occurred as testified
by General Counsel's witnesses, and I so find.
Supervisor Ray Leffmer was charged in the complaint
with orally threatening Respondent's employees with
discharge or loss of employment or other reprisals for
becoming members of the Union or giving assistance to it.
Presumably, this paragraph would cover warnings and
threats with regard to solicitation. I so conclude.
On September 26 at approximately 7:15 in the morning
Leffler spoke to employee Margaret Martin and said to
her, "Well, I've been informed to tell everyone that anyone
caught campaigning or soliciting for this Union will be-
being confronted with his investigatory affidavit, Wade's attention was
called to a statement in that affidavit which stated "I understand him
[referring to Andy Meyers) to mean that he was concerned about the
employees carrying on union activities during working hours and in the
building, but that he did not care what they did elsewhere." While it is
always possible that employees can misinterpret what is told them, I find
that the employees who testified on behalf of the General Counsel in this
regard were quite consistent in their testimony and, accordingly, neither
misinterpreted nor fabricated. Upon my observation of them and Wade, I
credit General Counsel's witnesses and find that Wade did instruct them
that they could be discharged if they engaged in any solicitation and also if
they engaged in solicitation on "company time."
167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well, could be fired." Martin was somewhat startled by this
remark and asked what Leffler meant. Leffler then
repeated this statement. Floreine Aggers was then told by
Martin to come behind the area where Martin was
working. Aggers did so and then Martin asked Leffler to
repeat his statement to Aggers. Although Aggers testified
that this or a similar incident occurred on September 27 she
testified also that Leffler stated "if we solicited or
campaigned for the Union we would be fired." 32
Although Supervisor Meyers, himself, did not directly
testify as to his instructions to the other employees, he
admitted, in testifying, that at one time he saw Theresa
Smith soliciting a signature on an authorization card. In
testifying, Meyers did not explain in any way what
instructions he had issued to other supervisors concerning
union solicitation nor did he seek to clarify the same.
Additionally, employee Joanne Harper testified, without
contradiction, which testimony is accepted, that at various
times before the strike herein she had been solicited in the
plant on working time for contributions to the United
Fund by Supervisor Homer Parks, to buy a chance on a
gun by a fellow employee, Leonard James, and at another
time was asked to purchase tickets for a musical band
concert for the sheriffs posse. She was also asked to
purchase tickets to the Tulsa State Fair which she
purchased on the representation of the individual who
solicited her, that he had been told to do so by Personnel
Director James Roth. She also stated that she had been
asked and had contributed to a baseball pool for the
baseball world series during working time. Vice President
Irving Bartlett admitted that the Respondent permitted
contributions to be solicited for the United Fund. He
testified that the solicitation for United Fund is the only
solicitation permitted by the Company and that the
Company does have a policy with respect to soliciting on
company premises and company time. However, if solicita-
tion was conducted other then that during company time,
it was outside the knowledge of Bartlett.
Whether the Respondent maintained an unlawful no-
solicitation rule which was unlimited in any respect and
was therefore unlawful is not truly an issue here. What is in
issue is what was told to the employees, as heretofore
related. I find that in no instance was the no-solicitation
rule as related by supervisors to the employees limited to
"working time," and, in fact, in one instance, as related
above, there was no limitation as to time and place at all.
Additionally, in one instance, employees were told that any
solicitation for union matters on the company premises
would subject the employees to discipline including
discharge. In fact, Supervisor Warren admitted that the
rule, as he related it to the employees, had no limitation
with regard to time or place. Also Supervisor Wade
admitted that he informed employees that they could not
32 From the credited testimony of Aggers and Martin. I have taken into
consideration that Aggers is one of the individuals who was allegedly
discriminatorily discharged and therefore could have been vindictive when
testifying to what Leffier told her. However, I find that her statements
conform almost completely and are strengthened by the testimony of
Martin. Accordingly, since Martin's testimony stood up very well on cross-
examination when she testified to the statements of Leffler in much the same
manner as she did on direct, I find and conclude that the consistency
betweeen Martin's testimony and Aggers' testimony is convincing as against
Leffer's denial that he told anyone at any time that he said that anyone
solicit or engage in union activity during "working hours."
As noted above, Meyers, in testifying, did not mention in
his testimony any limitation whatsoever.
In any event, even assuming that what Irving Bartlett
testified was the company policy would constitute a valid
no-solicitation rule, it was related to the employees by the
Respondent's supervisors, as heretofore related, in a
manner which would render it presumptively invalid
because, as described by the supervisors, the rule was
overly broad in its extent and they related no legitimate
reason for the rule as they explained it and as it was
presented. Thus, the restrictions upon union solicitation
imposed by the Respondent through its supervisors, which
was not embodied in a written form, rendered the warnings
directed to the employees in order to enforce such rule,
violative of Section 8(aXl) of the Act.33
Historically, between the Board and court decisions
there was some confusions as to the meaning of the words
"company time," "working time," "working hours," and
like words used by various employers in no-solicitation
rules. In order to clarify this situation, the Board held:
In our view, there is a clear distinction to be drawn
between the terms "working hours" and "working
time." The term "working hours" connotes the period
of time from the beginning to the end of a workshift.
Thus, the use of that term in a no-solicitation or no-
distribution rule is reasonably calculated to mean that
employees are prohibited from engaging in any form of
union solicitation or distribution of union literature
from the time they "clock in," or began their work shift,
until the time they "clock out," or end their workshift.
By contrast, the term "working time" or "work time"
connotes the period of time that is spent in the
performance of actual job duties, which would not
include time alloted for lunch and break periods. Thus,
the use of that term in a no-solicitation or no-distribu-
tion rule would clearly convey the meaning to employ-
ees that they were free to engage in solicitation or
distribution during lunch and break periods which
occurred during their working hours.34
The Board, in order to clarify these distinctions and set
forth a workable rule once and for all, then stated:
In light of the above distinction, we shall consider
rules which prohibit solicitation or distribution during
"working time" or "work time" to be valid on their
face. On the other hand, those rules which prohibit
solicitation or distribution during "working hours,"
unless their impact on lunch and breaktime is clarified,
unduly restricts employees' rights under Section 7 of
caught soliciting for the Union could be discharged. Nor do I credit Lefer's
statement that he told Martin on September 15 or sometime thereafter that
the latter was not to solicit or pass out union cards while "working on the
job." Again, while it is always possible that the employees misunderstood or
misinterpreted what was told them, I find and conclude, in this instance,
that Martin and Aggers were the more reliable witnesses and they are
credited in this respect.
33 Fayetteville Industrial Maintenance, Inc., 218 NLRB 889, 894 (1975).
34 Essex International, Inc., 211 NLRB 749, 750 (1974).
168
BARTLETT-COLLINS COMPANY
the Act to engage in union solicitation or distribution
during their nonworking time.3 5
Clearly, under the foregoing rule as set forth by the
Board, when Supervisor Wade told Larry Harper and other
employees that they could be disciplined if they were found
signing union cards on company time, the violation is
apparent. Of course, there is no question that the failure to
limit the no-solicitation rule, of which Supervisor Wade
informed employees Theresa Smith and Grace Little that
they would be discharged for soliciting signatures for union
authorization cards with no limitation as to time or place,
was violative. And again, when Wade instructed employees
Joanne Harper and others that he had been instructed by
Supervisor Meyers to tell them that they were not allowed
to solicit signatures during "company time," such instruc-
tion constitutes a violation of Section 8(a)((l) of the Act.3 6
E. The Discharges
1. Douglas Bell
Before September 17, 1974, Bell had been employed by
the Respondent as a floorboy on the plane lehr. On
September 15, the day the strike commenced, Bell was not
scheduled to work and was off until the night of September
17 when he was scheduled to rL;port for work. However, on
the night of September 16, Bell called his immediate
supervisor, Foreman Robert Robertson, and informed the
latter that he would not be reporting for work on
September 17 as scheduled because he could not cross the
picket line which had been established on September 15.
Robertson relayed this information to Andy Meyers,
supervisor of the select and pack department, who was
Robertson's immediate superior. On the night of Septem-
ber 17, when Bell failed to report to work as scheduled,
despite the information which was given to Robertson and
Meyers beforehand, Robertson placed a zero on the
schedule sheet to show that Bell had not reported for work
and then imparted this information to Meyers who, in turn,
made up a slip indicating that Bell had quit his employ-
ment with the Respondent. This quit slip was in due course
of events sent to the personnel office where it was noted by
Personnel Supervisor Roth. Although Meyers testified that
he did not know that Bell had joined the picket line, the
information imparted to him on September 16 must have
put him on notice thereof. Additionally, Meyers testified
that he did not see Bell on the picket line. Moreover,
employee Georgene Witham credibly testified that, on the
night that Bell was noted as having quit, Robertson asked
her whether Bell was walking the picket line and Witham
answered that Bell was doing just that. Robertson then told
Witham that, because Bell was scheduled to work that
evening, he would be terminated unless Bell reported to
work in accordance with the previously posted schedule.
From the foregoing I find and conclude that the
Respondent's hierarchy, at least up to Supervisor Meyers,
was aware of the fact that Bell did not report to work on
35 Id. at 750.
36 See also Groendyke Transport, Inc., 211 NLRB 921 (1974), where the
Board held that "Respondent's proscnption of distribution during 'working
hours' has an overbroad sweep and therefore violates Section 8(a)(1) of the
September 17 because he was walking the picket line. It is
possible that Personnel Director Roth was not aware of
this fact when he received the quit slip with regard to Bell.
Sometime later, Bell having had a workmen's compensa-
tion matter with the Respondent and because Bell's
counsel could not locate Bell, Bell's counsel made contact
with the Respondent. Whatever conversation took place
between Roth and Bell's counsel, Bell was told by his
counsel, when counsel finally located him, that Respon-
dent's records reflected Bell had quit. Thereupon, Bell
made contact with Roth and asked Roth if he had been
fired. Roth's answer was, "No. You quit." Bell then
informed Roth the reasons he did not cross the picket line,
but Roth insisted that Bell had quit. According to Bell, the
conversation ended with Bell asking Roth whether his job
was still available. When Roth answered in the negative,
Bell thanked Roth and hung up.
Significantly, Roth did not deny Bell's foregoing testimo-
ny. However, after the amended charge in the instant
proceeding was filed, which charge included Bell as an
alleged discriminatee, Roth did write Bell a letter in which
he asked Bell whether the latter had quit or whether he was
not working in consequence of the strike; whether Bell had
joined the strike and, if he did so, the date on which he
joined the strike and, also, whether he had been on strike
continuously since he started to strike. Roth requested
prompt answers. However, Bell did not reply.
Bell testified that during this period he had joined the
Navy and was not aware of any communication from
Roth. Finally, by letter dated January 28, 1975, another
letter was sent to Bell stating that Respondent had not
received any reply from the first letter but that they had
been advised that it was not Bell's intention to quit
employment and that it was his intention to join the strike.
The letter went on to state in view of that fact the
Respondent's employment records were being corrected to
reflect that Bell did not quit but was on strike. The letter
further stated that, because Bell had certain employment
rights according to law by reason of the fact that he was a
striking employee, a check would be sent to him by the
Company covering such employment benefits as he would
have been entitled to during 1974 as a striking employee.
Thereafter, on January 30, 1975, Respondent transmitted
to Bell his Christmas bonus check which stated that, in line
with the Respondent's recent letter, they were enclosing
Bell's bonus check for 1974.
Bell denied he ever received this check. However, a
perusal of the check and a study of the signature thereon
with other copies of Bell's signature persuaded me that Bell
did, in fact, receive, endorse, and cash the said check.
There has been no further communication between the
Respondent and Bell and Bell has not been offered
reinstatement. It must be assumed, however, that Bell is
still a striking employee, or at least was at the time of the
hearing in this proceeding. Accordingly, I find that Bell is
still a striking employee and entitled to whatever entitle-
Act. Also, the rule proscribes distribution on 'company property' and is
unlawful for that reason as well, since it is not limited to the working areas
of Respondent's property."
169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment any of the striking employees involved in this
proceeding will be entitled as hereinafter set forth.
Nevertheless, there remains to be determined whether
Bell was discharged, and if he was discharged whether he is
entitled to any backpay. In view of the knowledge on the
part of Foreman Robertson and Supervisor Meyers that
Bell intended to join the strike and refused to cross the
picket line, and in view of the notification in the
Respondent's record by Meyers that Bell had quit, and due
to Robertson's statement to Witham to the effect that Bell
would be discharged in the event that he did not report for
work on September 17, I find and conclude that, although
Respondent's record showed that Bell had quit, Bell was
actually discharged. This is especially true in view of the
fact that, in testifying, Roth admitted that employees who
give notification to the Respondent in advance of a time
that they will not report to work, and give the reasons
therefor, are normally not treated as having quit. Whether
Bell was adequately compensated in all respects after
having been discharged is left to further proceedings
regarding compliance with any order in respect to the
instant proceeding. However, as noted above, I find that
inasmuch as the Respondent's records have been corrected
to show that Bell was on strike and had not quit, I find and
conclude that Bell, as noted above, will be treated in a
same fashion as any other striker provided Respondent
offers him full reinstatement.
2. Floreine Aggers
As noted above, Aggers was also employed in the select
and pack department. In that department, Aggers worked
under the immediate supervision of Ray Leffler, head
lehrman. Leffler, as did Robertson, reported directly to
Supervisor Andy Meyers, his superior.
Aggers was not particularly active in the union organiza-
tional campaign. She attended a union meeting on
Wednesday night, September 25. At approximately 3 p.m.
on September 24, 1974, at the request of Georgene
Witham, who asked her to sign a card, Aggers signed an
authorization card by placing the card against the window
of the laboratory near her work station and in view of other
people in the room signed the card. Aggers testified that
she "thought" that Stella Millican, another employee, told
her at that time immediately after she signed, "You know
they seen you sign that card." According to Aggers, the
individuals referred to by Millican were Meyers, Leffler,
and Irving Bartlett. Aggers further testified that on
September 26, the day after she attended the union
meeting, Ray Leffler informed the employees, as heretofore
noted, that they could not solicit or campaign for the
Union and if they did so they would be subject to
discharge. Aggers also credibly testified that Leffler
repeated this warning on September 27.
a3 From portions of the credited testimony of both Aggers and Martin.
Roth testified that on that day he had had an argument with Aggers in the
presence of Martin, that is Martin was on one side of the lehr and Aggers on
the other. Roth asked Aggers, who was looking at the glass lamps that were
being processed, how they were going. According to Roth, Aggers replied,
"They're not doing worth a damn; they are not making me any money or
the Company any money." According to Roth, he then walked away, but
after having been working 16 hours a day on production work with which he
According to Margaret Martin, a fellow worker of
Aggers, Martin saw Witham give Aggers the authorization
card to sign on September 24. At the time Meyers, Leffler,
and Charles Warran were at the checkers stand about 35
feet from where Aggers was standing near the quality
control office. Martin was facing Witham when the latter
gave her a card to sign. Martin turned toward the quality
control lab, laid the card on her purse, signed it, and
handed it back to Witham. Aggers, who was in the same
area, signed her card while holding it against the upper
portion of the quality control lab glass window. None of
the supervisors were inside the lab, but just a moment after
Aggers signed the card, Martin told Aggers, "I guess you
know Andy saw you sign your card." To which Aggers
replied, "It's too late now, I've already signed it."
On September 30, 1974, Aggers was working on the shift
which began at 3 p.m. and ended at 11 p.m. Approximately
20 minutes before the shift began Margaret Martin sat
down in the break area and a few minutes later was joined
by Aggers. They went into the canteen for a cup of coffee
and returned to the break area. They sat until it was time to
go to their respective work stations. After leaving the break
area to go to work, Personnel Director Roth came by and
they said to him "Hi" as he went around them. Roth said
nothing further. It could well be, however, that Aggers,
after saying hi, asked how the glassware was running. In
any event, whether Aggers made that statement or not,
both Aggers and Martin agreed, in testifying that Roth just
turned around, looked at Aggers peculiarly and walked off.
Thereafter, Aggers continued to work until approximately
3:30 when Leffler told her that Meyers wanted to see her in
Meyers' office. Thereupon, Aggers proceeded to Meyers'
office where she was told by Meyers that she was
discharged because Roth instructed him that Aggers was to
be fired for "mouthing off." Aggers accepted dismissal but
asked Meyers whether she could have a copy of her
termination. She then proceeded to get her purse and other
belongings, left the plant, went to the front office where she
received her final paycheck and a copy of her termina-
tion. 37
Additionally, at approximately an hour after Aggers was
terminated, Supervisor Meyers engaged employee Martin
in a conversation and asked her if she heard the argument
between Roth and Aggers. Martin told Meyers that she did
not hear an argument at all and that Roth had not even
spoken to them. Meyers then stated that Roth had told him
to fire Flo, referring to Aggers, and that he hated to do it
but had to do so.
While there may be some question as to whether the
supervisors who were in the area at the time that both
Martin and Aggers signed their union authorization cards
actually saw the signing by Aggers, I conclude from all of
the foregoing testimony, that they did observe Aggers
signing something although they may not have known
was unfamiliar, he thought about it and became very angry. He thereupon
instructed Meyers to discharge Aggers because of her "bad attitude."
However, Roth, in testifying, admitted this was the first time in many years
that he had discharged anyone for "bad attitude." Under all of the foregoing
circumstances and because of the manner in which the testimony was given
at the hearing, and upon my observation of the witnesses, I credit Aggers
and Martin over Roth's version.
170
BARTLETT-COLLINS COMPANY
whether it was a union authorization card by reason of the
fact that it was approximately 35 feet from where they were
standing to the place where Aggers signed the authoriza-
tion card. However, I do make the inference from the
foregoing credited testimony of Aggers and Martin that
they at least concluded that it was a union authorization
card.
I base this inference on the fact that, in the first instance,
I do not credit Roth's testimony that he had an argument
with Aggers and ordered her discharge for having a "bad
attitude" by reason thereof. I also base this conclusion on
the fact that Roth admitted that it was many years between
the last time that anyone was discharged for having a bad
attitude and the discharge of Aggers. Moreover, there was
no denial by Meyers of the conversation related by Martin
between herself and Meyers in which Martin told Meyers
that Aggers and Martin had had no conversation with
Roth. Finally, the discharge of Aggers occurred only
several days after Alvarez announced at the meeting with
Respondent's representatives and Mediator Arnold that
the Union was actively engaged in organizing the select
and pack employees. Thus, Respondent was well aware
that active organizing was going on among the select and
pack department employees at the time Aggers signed her
card.
Thus, I find and conclude that by reason of all of the
foregoing that Aggers was discharged for having signed the
card or, at least, having engaged in union activity. I come
to this conclusion, not without some hesitation, by reason
of the fact that Martin also signed a card on the same day
approximately a few moments before Aggers signed her
card. However, from the testimony of Martin, it should be
noted that Martin turned her back to the individuals who
could have observed her and signed her card by placing it
upon her pocketbook, thus hiding her actions. It would
seem, therefore, that it cannot be argued that, since the
Respondent did not also discharge Martin, the discharge of
Aggers must have been for the reasons stated by Roth.
However, despite my finding that Aggers was discrimina-
torily discharged, the record reveals that Aggers was
reinstated and was given some backpay. Nevertheless,
inasmuch as the record does not clearly show that she was
restored to her same or substantially equivalent position
and, moreover, inasmuch as the record is also not clear
with regard to whether she was given all the backpay due
her, it will be ordered that Aggers be so reinstated and that
backpay be determined in the usual manner. 38
3. Charles Wiley
Charles Wiley had been an employee of the Respondent
for approximately 30 years before his discharge, except for
the period from July 1968 to May 1964. He was a senior
operator in the "hot end," and, during the negotiations in
1961 when the Ceramic Workers was attempting to
negotiate a contract with the Respondent, Wiley was a
member of the negotiating committee. In August and
September 1974, he participated in the Union's organiza-
tional campaign and took part in soliciting employees to
3" In making the finding that Aggers was discriminatorily discharged by
Roth, I do not find that Irving Bartlett necessarily saw Aggers sign her card
and I credit his testimony to that effect. However, this does not alter the
sign union designation cards. On September 15, 1974, he
went out on strike with the rest of the employees in the unit
represented by the Union and walked the picket line for
approximately 6 days each week. There is no question that
Wiley was seen walking the picket line during the strike
and Vice President Irving Bartlett admitted, in testifying,
that he had observed Wiley walking the picket line upon
numerous occasions.
On October 1, the day before the incident recited
hereafter, Wiley and other striking employees heard that
employee Cecil Livingston, who had up to that time been
on strike and had honored the picket line, had decided to
return to work on the following day, October 2. As a result,
Wiley, who was not scheduled to perform picket duty on
the following morning, nevertheless went to the Respon-
dent's premises on the morning of October 2 and joined the
pickets along with two other individuals, Linzy Dean and
Paul Woods. They picketed at or near the gatehouse of the
Respondent's premises through which Cecil Livingston
would have to pass if and when he entered the Respon-
dent's premises. Shortly after 6 a.m. both Irving and
Charley Bartlett, Respondent's officials, noticed the three
in front of the gatehouse.
At approximately the same time, Cecil Livingston drove
up to the parking area near the gatehouse and, after leaving
his car with his lunch bucket in his hand, started to cross
the street from the parking area to enter the Respondent's
premises. What occurred at that time can only be pieced
together from the testimony of Charley and Irving Bartlett,
Charles Wiley, Cecil Livingston, Lindzy Dean, and Paul
Wood. It is apparent that it was Lindzy who first left the
group picketing on the sidewalk to approach Livingston, as
the latter was commencing toward the gatehouse, in order
to persuade Livingston not to enter. Almost immediately
thereafter Wiley followed Dean and an altercation oc-
curred. In their respective testimony, Wiley accused
Livingston of throwing the first punch and attempting to
hit Wiley with his lunch bucket. According to Livingston,
the first punch was thrown by Wiley which caused
Livingston's lunch bucket to fall to the ground whereupon
Livingston grabbed Wiley by the shoulder and asked Wiley
not to hit him and told Wiley that he had to go to work
because he needed the money for an operation. Although,
to an extent at least, with some variations, both Dean and
Brown supported the testimony of Wiley, and although
Irving and Charley Bartlett, in testifying, admitted that
they did not see who threw the first punch and who
actually commenced the physical altercation, suffice it to
say, Livingston was the one who suffered the most damage,
having received a broken jaw from a punch thrown by
Wiley.
However, both the Bartletts testified that they heard, in
substance, Livingston begging Wiley to quit punching and
telling the latter that he would not fight him; that
Livingston could not afford not to work. According to
Charley and Irving Bartlett, Wiley answered something to
the effect that the Respondent could not do Livingston any
"God damn good" in the premises and finally Livingston
facts as I find them that Roth discharged Aggers for her union activity
inasmuch as I find that at least one of the observers of the signing of the
card did conclude that it was a union card which was being signed.
171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said, "Well Charley I won't go to work. I'll go back home."
Irving Bartlett also testified that although he could not see
who threw the first punch because he had turned around to
say to his brother, "Here comes Livingston," when the fight
started he went over to where the altercation was taking
place and tried to stop Wiley from punching Livingston.
He heard Wiley tell Livingston, "You aren't going to work,
you son-of-a bitch." Then Irving Bartlett repeated that
Wiley told Livingston that the Company would not do him
any good and that Livingston was not going to go in there.
Irving Bartlett further testified that Livingston told Wiley,
"Charley, we've been friends too long. Please, I don't want
to fight you. I've got to have an operation, you know. I've
got to go to work. Please don't Charley."
I find it unnecessary to determine who threw the first
punch or which of the two individuals involved attacked
the other first. It is true that Livingston was attempting to
go to work and cross the picket line, a matter which he had
a right to do. It is equally true that Wiley had the right to
peacefully attempt to persuade Livingston not to cross the
picket line to go to work. However, I credit Charley and
Irving Bartlett,3 9 to the extent that Wiley cursed Livingston
and threw punches at him whereas Livingston, from all
that the Bartletts could observe, did not throw any punches
and, in fact, begged Wiley to desist. It is further apparent
from the testimony of the Bartletts that Livingston sought
to explain to Wiley the necessity for his going to work
because he needed an operation. 40
Also, according to the credited testimony of both Irving
and Charley Bartlett, as supported to some extent by the
testimony of Dean, Irving Bartlett attempted to stop the
altercation by grabbing Wiley's coat and asking him to
desist. Finally, there is no question from the testimony of
any of the witnesses that, when Livingston finally said,
"Alright, I'll go home," or words to that effect, Wiley
immediately did cease fighting and told Livingston that he
had better go home. Shortly after the altercation, or almost
as soon as it ended, the police arrested Wiley.
Additionally, Irving Bartlett credibly testified, and
Wiley's testimony supports the testimony of Irving Bartlett
in this respect, that despite the fact that Wiley had been a
member of the bargaining committee for the ceramic
workers and had, indeed, left the Respondent's employ
some time thereafter, when he reapplied for employment
he was immediately rehired. This would indicate that, at
least so far as Wiley's earlier union activity was concerned,
the Respondent had no desire to visit reprisals upon Wiley.
Additionally, the Respondent, before the strike involved in
the present proceeding commenced, did announce to its
employees that they had the right to strike, as noted above,
and that, furthermore, they were permitted to picket so
long as they did so peacefully.
"3 To the extent that I credit a witness only in part I do so upon the
evidentiary rule that it is not uncommon "to believe some and not all of a
witness testimony." N.LR.B. v. Universal Camera Corporation, 179 F.2d 749
(C.A. 2. 1950).
40 In this respect I do not credit either Wiley, Dean, or Wood to the
effect that nothing was said during the altercation.
41 It is with some misgivings that I come to this conclusion for the reason
that Wiley had been, apparently, a good employee of the Respondent for a
period of 32 years and, from my observation of him on the witness stand, is
no longer a young man. However, I am constrained to make my conclusions
From the record as presented at the hearing herein, I
cannot conclude that Wiley was engaged in protected
concerted or union activity for which he was discharged by
the Respondent. I conclude that he was discharged because
Irving and Charley Bartlett, from what they could observe,
and what they heard during the altercation, concluded that
Wiley did, indeed, assault Livingston and that his dis-
charge was therefore warranted.
The Charging Party and the General Counsel both argue
that it is difficult to believe that an employee with 32 years'
seniority, and an admitted expert in his field of work, was
terminated so abruptly for cause because he engaged in a
fight. However, I cannot conclude that this was a minor
incident. Certainly there is nothing minor about a fight in
which one of the parties received a broken jaw. It is
certainly understandable that, in the heat of the moment,
the Bartletts considered that the only remedy for the
situation was to discharge Wiley. Therefore, I find and
conclude that Wiley's union activity was not a part of the
cause of his discharge and did not enter into consideration
by the Bartletts when, moments after the fight, they
decided to discharge Wiley. In coming to this conclusion I
have considered the fact that Wiley came to the picket line
that morning for the explicit purpose of dissuading
Livingston from returning to work. While I find, as stated
above, that it is not necessary to find that Wiley threw the
first punch and started' the physical aspect of the confron-
tation, it is well within the realm of probability that when
Livingston refused the request of Dean to turn around and
go home and not enter the plant, at that point Wiley
attempted to physically stop Livingston from returning to
work. This is borne out not only by Wiley's avowed
purpose of returning to the picket line on that morning in
order to dissuade Livingston from entering the plant, but
also by the fact that it was Livingston who begged Wiley to
stop punching him and explained that he had to go to work
in order to pay for a needed operation. From all this, the
only conclusion that can be made is that the General
Counsel did not prove by a preponderance of the credible
evidence that Respondent discharged Wiley discriminatori-
ly. I shall therefore order that portion of the complaint
which alleges that Respondent discharged Livingston for
protected concerted or union activity to be dismissed. 41
Additionally, in coming to this conclusion, I have
considered the argument advanced by counsel for the
General Counsel and for the Respondent that this was a,
so-called, mixed motive situation. Counsel for the General
Counsel cites a number of cases in which the Board held
that even assuming an employee's unprotected conduct
was a contributing factor in a decision to discharge him
that an employer's knowledge of the dischargee's union
activity was also a contributing factor and that, therefore, it
is entirely probable that the primary contributing factor or
and findings upon the record as presented to me and I would be remiss in
my capacity as an adjudicator of the facts to do otherwise. It should also be
noted that after the close of the hearing herein the Respondent moved to
open the record to enter the conviction judgment of Wiley in the state court
for the alleged assault upon Livingston. However, that conviction judgment
was amended to show that there was no admission of guilt and that Wiley's
plea was equivalent to a plea of nolo contendere. Accordingly, I have not
considered this matter in coming to the conclusion which I have made with
regard to this discharge.
172
BARTLETT-COLLINS COMPANY
at least a contributing factor to the discharge of Wiley in
the instant matter was Wiley's union activity and that,
therefore, his discharge was discriminatory. For the reasons
cited above, one of which was that the discharge Wiley was
made immediately upon the end of the altercation,
although perhaps somewhat precipitant, and although the
Respondent's vice president, Irving Bartlett, did, indeed,
accept Livingston's account of the altercation, I find and
conclude that the decision to discharge Wiley was made
solely on the basis of what Respondent considered was
Wiley's unlawful conduct on the picket line and, accord-
ingly, I reject the mixed-motive argument advanced by
counsel for the General Counsel.
F. Discussion and Conclusions
I. The bargaining
The determination of whether a party to negotiations for
collective-bargaining agreement has stepped over the fine
line that separates good-faith "hard bargaining" from bad-
faith "surface bargaining" is a matter which has troubled
both the Board and the courts almost from the inception of
the Act. What essentially must be determined is the elusive
state of mind of the party accused of failure to bargain in
good faith-whether the course of bargaining engaged in
by that party is merely a sham to cloak, with an apparent
attempt to reach agreement, a determination not to reach
such agreement. The various devices utilized by sophisti-
cated negotiators to screen a predetermined reservation of
mind not to reach agreement have been the chief
roadblocks to reaching decisions on issues in situations
somewhat parallel to the issues presented in the instant
proceeding. However, Board and court precedent do offer
some assistance in disposing of these issues.
The Supreme Court has long since decided that the
bargaining requirements of Section 8(aX 5) and 8(d) of the
Act do not grant the Board authority to "either directly or
indirectly, compel concessions or otherwise sit in judgment
upon the substantive terms of collective-bargaining agree-
ments." 42 However, although the Board may not sit in
judgment upon the terms offered in bargaining, in
determining whether negotiations constitute merely "hard
bargaining" on the one hand or "surface bargaining" on
the other, the Board has considered the totality of an
employer's conduct in bargaining to resolve the issue,43
and has included for consideration as part of that totality
of conduct not only conduct at and away from the
bargaining table 44 but also such substantive proposals as
those remaining unresolved at the time of the cessation of
bargaining between the parties to the proceeding. 4 5 The
courts have also recognized this principal holding that the
Board "must take some cognizance of the reasonableness
of the positions taken by an employer in the course of
bargaining negotiations."46 In adopting these principles in
another recent case, the Board stated:
42 N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 404 (1952).
43 "M" Svstems, Inc. Mobile Home Division Mid-States Corporation, 129
NLRB 527, 547 (1960).
14 Ibid.
45 Tomco Communications. Inc., 220 NLRB 636 (1975).
4i N.L.R. B. v. Reed & Prince Manufacturing Company. 205 F.2d 131, 134.
Moreover, in many cases, we must look to the whole
course or pattern of conduct during negotiations, as
opposed to a single act of alleged wrongdoing, in order
to determine whether the statutory obligation has been
satisfied. And in such cases evidence of the rejection of
the bargaining principal is revealed in a course of
conduct where, for example, the employer, during
renegotiations, manifests an unwillingness to offer
anything other than a "radical departure" from the
previous contract, or where the employer insists that
economic terms not be discussed until accord is
reached on all other matters, or where the employer
insists on arrogating to itself sole discretion in deter-
mining working conditions.4 7
It is in the light of these foregoing legal principles and
criteria that the bargaining between the Respondent and
the Union herein is considered.
At the outset of the bargaining between the Union and
the Respondent, at the meeting of July 18, 1974, the
Respondent's chief negotiator, Mueller, proposed that all
noneconomic issues be resolved before the parties dis-
cussed their various economic proposals. Although Alva-
rez, acting as chief spokesman for the Union, did not
specifically dissent to this proposal, neither did he
specifically consent to it. He insisted that a complete
agreement must be reached. Furthermore, no specific time
was set by either of the parties, either inferentially or by
specific agreement, during which the discussion would be
confined to only noneconomic issues. Accordingly, I
cannot conclude that the Union gave its consent for
purposes of bargaining, in the specific context of the
negotiations between the parties herein, to forego for
whatever time it took to negotiate noneconomic matters,
the discussion or introduction of economic matters.
Moreover, a review of the bargaining sessions, not only of
the first and second sessions, but of all the meetings reveals
that upon occasion after occasion and at numerous times
during each of the bargaining meetings Alvarez asked to
discuss economic matters. Additionally, when certain
proposals were made by the Union, both in its original
proposal submitted on July 18, and in its second proposal
following the Respondent's counterproposal, a number of
items were brushed aside by the Respondent's negotiator
as being economic and therefore not for discussion, even
though these items could be regarded as other than
economic. The Board was found, in circumstances similar
to those here recited, that the refusal to discuss economic
matters constituted in and of itself a violation of the Act
and a refusal to bargain.48
Rather than repeat item by item, as completely set forth
in the earlier portions of this Decision, the negotiations as
they progressed between the parties, it is apparent that on
September 26, the seventh meeting between the parties and
the first held with a Federal mediator, after the Union had
made a number of concessions to the Respondent with
See also Herman Sausage Co., Inc., 122 NLRB 168, 170 (1958), enfd. 275
F.2d 299 (1960).
47 Romno Paper Products, Corp., 220 NLRB 519(1975).
4' See The Adrian Daily Telegram, a Division of Thompson Newspapers,
Inc., 214 NLRB 1103 (1974); Federal Mogul Corporation, 212 NLRB 950
(1974).
173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to the Respondent's counterclaim in which the
Union gave up many of its original proposals, there
remained unresolved between the parties the following
items:
Item I-Management Rights, page 2, section I, of the
Respondent's counterproposal. As noted heretofore, this
clause gave the Respondent unrestricted unilateral rights,
without recourse by the Union or any employee to the
grievance procedure, to establish, modify, or change work
standards and schedules, including selection, transfer, or
reduction of employees, to change the content of existing
jobs, to lay off employees, to assign overtime, to determine
work content, incentive bonuses, introduce new changed
methods, establish new facilities and transfer work from
one department to another, contract out work, terminate,
liquidate or close all or any part of its operations, select,
promote, or transfer employees to positions outside the
bargaining unit, to allocate and assign work to employees,
to establish quality and quantity standards, determine the
number and duration of shifts and reserving all other
management rights not specifically enumerated therein.
Item 2-Non-discrimination, page 6, section 2, of the
Respondent's counterproposal which reads, "Neither the
Company nor the Union or its members will discriminate
against any employee or applicant for employment because
of his membership or nonmembership in the Union or
because of his union activity on his nonunion activity."
Item 3-Work by Supervisors, which read as follows,
"Supervisors shall perform such work as they deem
necessary or proper, or as maybe assigned to them."
During the entire course of negotiations from the second
meeting on, the Union, through Alvarez, its spokesman,
insisted on its original proposal that work by supervisors be
confined to assisting unit employees in their work in
emergencies when necessary or in instructing employees in
their work. This, insisted Alvarez, was necessary because
otherwise it could affect the work, the jobs, the work hours,
and the earnings of the employees if the supervisors were
permitted to perform unit work at the complete and sole
discretion of the Respondent.
Item 4, Violation of the No-Strike Clause, page 13 of the
Respondent's counterproposal which reads, "Any individu-
al who violates provisions of this article shall be subject to
discipline, including discharge, in the sole discretion of the
Company and without recourse to the grievance procedure.
The Company shall not be obligated to apply the same
disciplinary measures to all individuals who violate this
article."
As noted above, the Union would not accept this item
because it gave the Union or any of its members no right to
grieve in the event of a discharge for a so-called unlawful
strike under this section of the Respondent's counterpro-
posal. The sole discretion vested in the Respondent by
this clause deprived the Union of the right to grieve on
behalf of any of its members who it considered were
improperly discharged or disciplined in any matter for an
alleged violation of the no-strike clause. Inasmuch as a
strike could occur in the event of some emergency situation
occurring in the shop such as a situation which could cause
49 Tomco Communications, Inc., 220 NLRB 636 (1975), and cases cited
therein.
danger to life or limb in which there was no time for the
Union to make contact with the Respondent, or, in the
event that the employees went out on strike to protest
discrimination within the meaning of the Act by Respon-
dent visited upon any of the unit members, under this
clause and the management rights clause, the Union or its
members would have no recourse to prevent discharge or
grieve with regard to such discharge.
Item 5, Seniority, sections 2, 3, and 8, pages 19, 20, and
22, of the Respondent's counterproposal. Item 6 of
reporting pay, page 26 of the Respondent's counterpropos-
al. Item 7, Transfer of Company Title, page 30 of the
Respondent's counterproposal. Item 8, Union Discipline,
page 41 of the Respondent's counterproposal which reads
as follows, "The Union shall not fine, discipline or expel
any member who is a union member for the purpose, in
whole or in part, or requiring the employee to perform his
job in manner other than as directed by the Company."
Although this proposal regarding union discipline would
seem to be tied into the management rights clause in the
first instance, so that the Union could not punish or in any
manner discipline any of its members for performing his
services for the employer in a manner other then that
directed by the Respondent, it is equally true that the
breadth of this clause reaches into the very heart of the
Union's management of its own affairs and, if accepted by
the Union, would and could constitute a relinquishing by
the Union of its right to discipline its members for violation
of intraunion rules and regulations, and, indeed, the
Union's own charter, constitution, and bylaws.
It is clear, from all of the foregoing and from a reading of
the very complicated grievance and arbitration procedures
of the Respondent's counterproposal set forth at the outset
of this Decision, that the Union's acceptance of the
management rights clause, the nondiscrimination clause,
the work by supervisors clause, the violations of the no-
strike clause and the Union's discipline clause would have
constituted the waiver of all of the Union's rights and, in
fact, the Union's duty to represent comprehensively and
properly as prescribed in the Act to represent its employ-
ees. Therefore, it can only be concluded and inferred that
the proposal of the these clauses from which the Respon-
dent refused adamantly to move in any direction were
predictably unacceptable to the Union. To paraphrase
what the Board has previously stated, I cannot accept the
contention that the Respondent, whose negotiating agent is
completely sophisticated and very well schooled in the
realities of collective bargaining, in good faith believed that
these proposals could or would ever be accepted by the
Union.49
Additionally, it was only at this September 26 meeting
that the Respondent, after unilateral discussion with
Federal Mediator Arnold, gave to the Union its first and
only economic proposal. It should be noted in connection
therewith that this economic proposal offered to the Union
in the form of wages and fringe benefits only what the
Respondent had already put into effect and was giving its
employees in the unit.
174
BARTLETT-COLLINS COMPANY
Although at no time did the Respondent offer to explain
its adamant position with regard to its take-it-or-leave-it
economic package, and at the very outset of the Union's
organizing campaign Respondent requested permission of
the Union to give the unit employees, in addition to its
other employees, a wage rate increase. Also, almost
immediately after the Union's certification as the bargain-
ing representative of the Respondent's employees in the
unit represented by the Union, the Respondent again
requested the consent of the Union to increase its
employees' wage rates. Finally, after negotiations were
broken off at the end of the eighth meeting in December
1974, the Respondent again, after only a short lapse of time
notified the Union of, and requested the Union's consent
to, a still further wage rate increase for its employees.
Again, in June 1975 another increase was given. At no
time, however, although the Union gave its consent to such
increases, did the Union in any manner agree that these
increases were sufficient or in line with the Union's desired
wage rate increases and increases in fringe benefits for the
employees whom it represented.
Although these wage rate increases are not in themselves
indicative of any plan or purpose on the part of the
Respondent to destroy the Union's validity in the eyes of
the employees whom it represented in the Respondent's
employ, when considered in the context of the Respon-
dent's one and only economic proposal which was made on
a take-it-or-leave-it basis only after unilateral discussion
with Mediator Arnold and which constituted no increase
whatsoever in the employees' wage rates or fringe benefits,
no other conclusion can be inferred but that the wage rate
increases were part and parcel of an ongoing attempt by
the Respondent and part of the overall conduct of the
Respondent aimed at discrediting the Union and nullifying
its usefullness and credibility in the eyes and minds of the
employees whom the Union represented. Thus, it is
inconceivable that the Union, as a collective-bargaining
agent of the Respondent's employees, could accept the
foregoing Respondent contract proposals, particularly
when not only its representation rights to a great extent
would be decimated, but the overall improvement in the
benefits for its employees are not nonexistent economically
and in other respects.
Furthermore, the pervasive unfair labor practices hereto-
fore found to be violative of the Act, consisting of threats
of reprisal, such as discharge and loss of bargaining rights
in the event of strike, impression of surveillance, unilateral
furnishing of free work gloves to nonstrikers, unlawful
overly broad no-solicitation rule and threats of discharge
for violation thereof and, finally, discriminatory discharges
for engaging in union activity are indicative of an attitude
which would be consistent with an intention not to reach
an agreement with the Union. True, the Respondent
possibly would have entered into an agreement with the
Union if the Union had accepted each and every item in
the Respondent's counterproposal and the Respondent's
economic proposal. But, as stated above, it can be inferred
from all of the facts that the Respondent in its awareness of
the realities of collective bargaining knew when it made its
s Alvarez informed the unit members before the stnke vote was taken
that, in his opinion, the Respondent had violated the law.
proposals that many of the terms and conditions of its
proposals as heretofore recited could not and would not be
accepted by the Union. Therefore, by the proposal of these
conditions, the Respondent created a situation which was
designed to thwart the very requisites of collective
bargaining prescribed by Section 8(aX5) and 8(d) of the
Act and constituted violations thereof under the guidelines
prescribed by Board and court decisions heretofore cited.
2. The status of the strikers
The pattern of bargaining which has heretofore been
found to have constituted violations of Section 8(aX5) of
the Act was commenced at the very outset of the
bargaining and the refusal on the part of the Respondent to
offer any economic proposal whatsoever at the end of
August at the time the strike vote was taken to be made
effective as of September 15, 1974, unless the Respondent
came forward with an economic proposal and ceased
insisting upon preconditions which the Union could not
accept in representing the Respondent's employee mem-
bers of the Union, were the basis for the strike and the
reasons why the employees voted to strike.50 Accordingly,
from the very outset of the strike which commenced on
September 15, the said strike was an unfair labor practice
strike. However, even assuming that the strike began purely
as an economic strike, the extensive unfair labor practices
engaged in by the Respondent's supervisors and agents
commencing after the strike vote and continuing after the
strike began constituted such pervasive unfair labor
practices as constitutes the basis for finding that the strike
was converted into an unfair labor practice strike. Accord-
ingly, I find and conclude further that the strikers are
unfair labor practice strikers and entitled to reinstatement
to their former or equivalent positions upon their uncondi-
tional request for such reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The operations of the Respondent, described in section I,
above, occurring in connection with the unfair labor
practices described in section III, 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 of commerce.
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of their rights guaranteed by
Section 7 of the Act, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(l) of the
Act.
175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By discharging Douglas Bell and Floreine Aggers by
reason of their activity on behalf of or their support of the
Union, the Respondent has engaged in unlawful conduct
within the meaning of Section 8(a)(3) and (1) of the Act.
5. All senior machine operators, press machine opera-
tors, press machine helpers, paste machine operators, paste
machine helpers, tankmen, tankmen trainees, turnouts,
floorboys, production clerks, oilers, repairmen, senior
mechanics, mechanics-repairmen, mechanics-welders, ma-
chinists, machinist learners, and other employees regularly
employed in the forming department (which is also known
as the Front End) at the Respondent's Sapulpa, Oklahoma,
plant, excluding all other employees including office
clerical, other plant production and maintenance employ-
ees, moldmakers, professional and technical employees,
watchmen, guards, head tankmen and other supervisory
employees as defined in the National Labor Relations Act,
as amended, constitute an appropriate unit for the purpose
of collective bargaining within the meaning of Section 9(b)
of the Act.
6. At all times since June 10, 1974, and continuing to
date, the Union has been and is now, by virtue of Section
9(a) of the Act, the exclusive representative of all
employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
7. By failing and refusing to bargain in good faith with
the Union as the exclusive bargaining representative of its
employees in the appropriate unit as set forth above,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX5) and (1) of
the Act.5'
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
It having been found, as set forth above, that the
Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom
and take certain affirmative action, set forth below,
designed to effectuate the policies of the Act.
It having been found that the Respondent by threats,
interrogation, creating the impression of surveillance of its
employees' meeting places, giving free work gloves to
nonstrikers, and threatening to enforce an overly broad no-
solicitation rule has interfered with, restrained, and coerced
employees in violation of Section 8(a)(X) of the Act, I shall
recommend that the Respondent cease and desist there-
from.
It having been found that the Respondent discriminato-
rily discharged employees Bell and Aggers (although in the
case of Aggers, there has been reinstatement to an extent
not fully revealed in the record, and in the case of Bell,
there is still some doubt as to whether the Respondent has
's Although the complaint alleges an additional violation in Respon-
dent's failure to meet at reasonable times. I find no violation in that respect.
52 N.L.R.B. v. Entwisle Manufacturing Company, 120 F.2d 532, 536
(1941).
s1 In the event no exceptions are filed as provided by Sec. 102.46 of the
offered Bell unconditional reinstatement to his former or
equivalent position) it is recommended that the Respon-
dent offer both Bell and Aggers immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges. In addition, I shall recommend that
the Respondent make each of them whole for any loss each
may have suffered by reason of the discrimination against
each by payment to each a sum of money equal to that
which each would normally have earned from the date of
discharge, less net earnings during said period. Backpay
shall be computed with interest on a quarterly basis in the
manner described by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
It having been found that the strikers who went out on
strike on September 15, 1974, and thereafter, are unfair
labor practice strikers, it shall be recommended that the
Respondent offer each of them immediate and full
reinstatement to their former or substantially equivalent
positions upon unconditional application by them for
reinstatement, dismissing, if necessary, persons hired on or
after September 15, 1974. In this regard, Respondent shall
make whole for any resulting loss of earnings any applying
striker who is refused reinstatement within 5 days after his
unconditional application for reinstatement, the loss of
earnings to be computed, as above, on a quarterly basis
with interest.
It having been found that the Respondent has failed and
refused to bargain with the Union in good faith as required
by Section 8(a)(1) and Section 8(d) of the Act, the Union is
entitled to application of the remedy developed by the
Board in Mar-Jac Poultry Company, Inc., 136 NLRB 785,
786-787 (1962), so that the employees in the bargaining
unit may enjoy a year of good-faith bargaining and not be
deprived of the services of the Union as their collective-
bargaining agent by technical expiration of the initial year
of certification which began on June 10, 1974.
In view of the nature of the unfair labor practices herein
found, including pervasive interference, coercion, restraint,
and discrimination, which goes to the very heart of the
Act,52 there exists the danger of commission by the
Respondent of other unfair labor practices proscribed by
the Act. Accordingly, I shall recommend that Respondent
be directed to cease and desist from in any other manner
infringing upon the rights guaranteed in Section 7 of the
Act.
On the basis of the foregoing findings of fact and the
conclusions of law and upon the entire record, and
pursuant to Section 10(b) of the Act, I hereby issue the
following recommended:
ORDER53
The Respondent, Bartlett-Collins Company, Sapulpa,
Oklahoma, its officers, agents, successors, and assigns,
shall:
Rules and Regulations of the National Labor Relations Board, and 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.
176
BARTLETT-COLLINS COMPANY
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sympathies and activities, threatening employees
with discharge and loss of pension rights in the event such
employees support a union-called strike, creating the
impression of surveillance upon employees union activities
and meetings, threatening employees with discharge for
conducting union solicitation in enforcing a no-solicitation
rule too broad in scope, and unilaterally furnishing
employees who did not strike or who replaced strikers with
free work gloves while refusing to furnish work gloves to
unit employees.
(b) Discouraging membership in American Flint Glass
Workers, Union of North America, AFL-CIO, and its
Local No. 716, or any other labor organization, by
discharging any employee for engaging in union or other
protected concerted activity or discriminating against
employees in any other manner in regard to their hire, and
tenure of employment, or any terms of condition of
employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
form, join, assist or be represented by American Flint
Glass Workers Union of North America, AFL-CIO, and
its Local No. 716, or any other labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activity for the
purpose of collective bargaining, or other mutual aid or
protection or to refrain from any or all such activity, except
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized under Section 8(a)(3) of the Act.
(d) Refusing to bargain collectively with American Flint
Glass Workers Union of North America, AFL-CIO, or
any of its subsidiary unions including Local No. 716
designated by the said International to bargain as the
exclusive representative of the Respondent's employees in
the following appropriate unit:
All senior machine operators, press machine operators,
press machine helpers, paste machine operators, paste
machine helpers, tankmen, tankmen trainees, turnouts,
floorboys, production clerks, oilers, repairmen, senior
machinists, mechanics-repairmen, mechanics-welders,
machinist, machinist learners, and other employees
regularly employed in the forming department (which is
also known as the Front End) at the Respondent's
Sapula, Oklahoma, plant, excluding all other employees
including office clerical, other plant production and
maintenance employees, moldmakers, professional and
technical employees, watchmen, guards, head tankmen
and other supervisory employees as defined in the
National Labor Relations Act, as amended.
(e) Refusing to bargain with the aforesaid Union as the
bargaining representative of the aforesaid unit of employ-
ees by furnishing work gloves to nonstrikers and striker
replacements while refusing to supply work gloves to the
aforesaid unit employees.
54 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Douglas
Bell and Floreine Aggers to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges enjoyed, and make each whole
for any loss of earnings each may have suffered by reason
of the discrimination against each in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Offer full reinstatement to all strikers of the unit
described above who went out on strike on September 15,
1974, and all other individuals from other departments of
the Respondent's plant who went out on strike at any time
since then in support of the said strike, within 5 days after
said strikers make unconditional offers to return to work,
and make each striker whole for any failure to reinstate for
any loss suffered by said strikers by the Respondent's
failure to reinstate the said strikers within the time limited
for such reinstatement in the manner set forth in the
portion of this Decision entitled "The Remedy."
(c) Preserve and, upon request, and make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records and
reports, and all other reports necessary to analyze the
amount of backpay due under this Order.
(d) Upon request, bargain collectively with the American
Flint Glass Workers Union of North America, AFL-CIO,
or any representative of the said labor organization,
including Local No. 716, as the exclusive bargaining
representative of the Respondent's employees in the unit
found appropriate above, with respect to rates of pay,
wages, hours of employment and other terms and condi-
tions of employment, and, if understandings are reached
with the aforesaid Union, embody such understanding in a
signed agreement with the said American Flint Glass
Workers Union of North America, AFL-CIO.
(e) Post at its plant at Sapulpa, Oklahoma, at places
where notices to employees are customarily posted, copies
of the attached notice marked "Appendix A." 54 Copies of
said notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said materials are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the certification year of the
aforesaid Union, is hereby extended for a period of I year
from the date upon which the Respondent begins to
bargain collectively in good faith with the aforesaid Union.
IT IS FURTHER ORDERED that the complaint herein be, and
it hereby is, dismissed insofar as it alleges violations of the
Act not found herein.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
177