Bartlett-Collins Co.

National Labor Relations Board - Board Decisions

Dec 20, 1962

140 N.L.R.B. 202 (N.L.R.B. 1962)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may assume, arguendo, that the tactics used here, like the tactics used
in N.L.R.B. v. Insurance Agents' International Union (Prudential
Ins. Co.), 361 U.S. 477, 496, "deserve condemnation, but this would
not justify attempting to pour that condemnation into a vessel not
designed to hold it."
We join our colleagues in their condemnation of arbitrary and
invidious action against employees, whether at the hands of their em-
ployers or at the hands of their bargaining representatives. We
recognize also that their proposal represents a laudable effort to reach-
in appropriate cases-union or employer conduct which falls out-
side the literal scope of the Act's prohibitory unfair labor practice
provisions. But to say that a proposal is laudable and that it has a
salutary objective does not endow it with legal validity.
In situations where employees have been the victims of truly arbi-
trary or invidious discrimination at the hands of their statutory bar-
gaining representative, with or without the employer acquiescence,
they are not without recourse.38 This is true even where that arbitrary
or invidious action is unrelated to legitimate union or other concerted
activities protected by the Act. The courts have furnished, and do
furnish, a remedy 39 Congress has throughout the years indicated
no dissatisfaction with this remedial scheme. The position here ad-
vocated by the majority represents, in our view, an unwarranted ex-
tension of Board authority.
38Larus d Brother, Inc., 62 NLRB 1075; Hughes Tool Company, 104 NLRB 318, and
see cases cited in footnote 39 infra.
$' Steele v. Louisville and Nashville Railroad Co., 323 U.S. 192; Tun8tall v. Brother-
hood of Locomotive Firemen & Enginemen et at , 323 U S. 210; Syres v. Oil Workers,
350 U.S 892
Bartlett-Collins Company and United Glass and Ceramic Work-
ers of North America , AFL-CIO, and United Glass and Ce-
ramic Workers of North America , Local 411. Case No. 16-CA-
1645. December 00, 1962
DECISION AND ORDER
On September 21, 1962, Trial Examiner Joseph I. Nachman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
140 NLRB No. 20.
BARTLETT-COLLINS COMPANY 203
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire rec-
ord in this case, including the Intermediate Report and the excep-
tions thereto, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order.
1In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's find-
ing that Respondent did not violate Section 8(a) (5) of the Act before December 26, 1961
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, heard before Trial Examiner Joseph I. Nachman on July 12 and
13, 1962, in Tulsa, Oklahoma, involves allegations that Bartlett-Collins Company,
herein called Company or Respondent, by failing to meet at reasonable times with
the certified representative of its employees, violated Section 8(a) (5) and (1) of the
Act.' All parties were represented at the hearing and were afforded full oppor-
tunity to present evidence, examine and cross-examine witnesses, and to argue orally
on the record. The parties requested and were granted an opportnuity to file briefs.
Briefs have !been received from the General Counsel and from the Charging Parties,
but not from the Respondent .2 Counsel for the Respondent has filed with me, and
served upon all interested parties, an extensive motion to correct the record in a num-
ber of stated respects. No opposition to this motion has been received. I have
carefully checked the motion against the transcript, and find the same to be in all
respects well taken. The motion is, therefore, granted in toto and the record is cor-
rected accordingly. A copy of the motion has been placed in the exhibit file marked
"Trial Examiner's Exhibit 1."
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged at Sapulpa, Oklahoma, in the
manufacture and sale of pressed and blown glassware, and in the course and conduct
of its business annually receives from and ships to points and places outside of the
State of Oklahoma goods valued at in excess of $500,000. I find that Respondent is,
and at all times material has been, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
I find that United Glass and Ceramic Workers of North America , AFL-CIO, and
United Glass and Ceramic Workers of North America , Local 411, herein called
International and Local , respectively , and collectively called the Union , are labor
organizations within the meaning of Section 2(5) of the Act.
1 The original and amended charges were filed and served April 16 and May 2S, 1962,
respectively. The complaint issued June 1 1962
2 Counsel for Respondent advised the Trial Examiner by letter dated August 27, 1962,
that unforeseen circumstances have made it impossible to file a brief on behalf of
Respondent
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES INVOLVED
A. The facts
After the customary proceedings under a stipulation for certification upon consent
election , the Regional Director for the Sixteenth Region , on October 9, 1961, cer-
tified International as the collective-bargaining representative of Respondent's em-
ployees in the agreed-upon unit. Respondent does not challenge this certification.
For the purposes of negotiating a contract, the parties met on November 7 and
December 7 and 8, 1961, and January 10, February 5 and 6, and March 9, 1962, but
no agreement was reached. The General Counsel expressly disclaims any conten-
tion that Respondent was guilty of bad-faith bargaining during the aforementioned
bargaining sessions, limiting his case to the proposition that a violation of Section
8(a)(5) occurred because of Respondent 's failure "to meet [with the Union] at
reasonable times." 3
The circumstances under which the various meetings were scheduled will now be
set forth.
In an exchange of telephone calls on October 17 and 18, 1961, between Hobbs,
district president of International, and Mueller , counsel for Respondent, the parties
agreed to hold their first meeting on November 7. In the interim, Respondent, on
October 25, furnished the Union with certain information which the latter had re-
quested to enable it to prepare for bargaining.4
The parties met on November 7 as agreed. Present for the Union were Hobbs,
Henry Brig, and Louis Biehle, International representative, Wayne Sutterfield, presi-
dent of the Local, as well as Joe Benning, Charles Willey, and Mary Cumby, mem-
bers of the Local's wage negotiating committee. Present for the Company, were
Karl Mueller, Respondent' s counsel and chief spokesman during the negotiation,
Edward Bartlett, majority stockholder, president, and treasurer; 5 Charlie Bartlett,
vice president and assistant treasurer; Irving Bartlett, vice president and secretary;
as well as Dene Iliff, Albert Coley, and Jesse Mantooth, each of whom occupies an
executive position with Respondent.6
It is uncontroverted that toward the end of the November 7 meeting, Hobbs under-
took to obtain from Mueller an agreement for the next meeting date, and that
Mueller stated that both he and his client had commitments which made it im-
possible to agree on any date at that time, but that he would call Hobbs "in about a
week" to discuss a possible meeting date. It is likewise uncontroverted that Hobbs
informed Mueller that he (Hobbs) would be at a specific hotel in Miami Beach from
November 9 to 17, and that he could be reached there, or that a message might be
left for him at his office. Hobbs, not having heard from Mueller , telephoned the
latter on November 21, and inquired why he had not heard from him about a meeting
date. Mueller replied that his schedule had been very heavy and "just to be truthful
I had forgotten it." Hobbs then told Mueller that he was most anxious to get
along with the negotiations and suggested meetings on November 27, 28, 29, and 30.
Mueller replied that his schedule would not permit meeting on the suggested dates,
but that he might arrange for December 1 or 2 and would call Hobbs the following
day to let him know definitely. The following day Hobbs received a telephone call
from Mueller's secretary who stated that Mueller would be unable to meet on De-
s Because of this concession the Trial Examiner sustained objections Interposed by the
General Counsel to testimony offered by Respondent dealing with the various proposals
and counterproposals submitted by the parties, and the discussions on them at the various
bargaining sessions, except to the extent that such discussions related to the scheduling
of future meetings
l There Is a conflict In the evidence between Hobbs, the chief witness for the Union,
and Mueller, the only witness for Respondent, as to the precise day on which the parties
agreed on the November 7 meeting date, the number of telephone conversations, and
whether Hobbs during the telephone conversations had stated that he (Hobbs) would be
unavailable for negotiations during the week of October 23 and on October 30 and 31
Although I believe It unnecessary to resolve this conflict in view of my assumption, herein-
after set forth, that there was no undue delay in arranging and holding the meeting of
November 7, I would credit Mueller because he is supported by his daily diary, which was
introduced in evidence, while Hobbs testified only from memory.
5 Edward Bartlett is frequently away from Sapulpa for extended periods, but at all
times remains In close touch with, and in overall charge of, all of Respondent's business
affairs Charlie Bartlett resides in Sapulpa and Is in immediate charge In the absence
of Edward Bartlett.
9 This was generally the composition of the respective negotiating teams at each of the
subsequent meetings Where a variation occurred such will be noted
BARTLETT-COLLINS COMPANY 205
cember 1 or 2 because of his heavy schedule, and that Mueller would call in a few
days to discuss a definite date. On December 1 Mueller called Hobbs, suggested
December 7 and 8 for meeting dates, and Hobbs agreed.
Mueller admits that between November 7 and December 1, no one connected with
Respondent made any effort to arrange meetings with the Union; that during that
period he had available time to bargain with the Union, but did not do so because
neither Charlie nor Irving Bartlett were available and they wanted to be present at
all meetings.7
The meetings of December 7 and 8 adjourned early in the afternoon of the second
day to enable Mueller to make his plane.8 Toward the end of the session on De-
cember 8, Biehle asked Mueller when the parties could meet again, and the latter
replied that Charlie Bartlett would be leaving for the west coast about December 10
to arrange for distribution facilities to supply products to its customers in that area,
that he might return in time for a 1-day meeting during the week of December 18, and
that the Bartletts would advise the Local's wage committee when Respondent's repre-
sentatives would be available for a meeting. Biehle reported the aforementioned
arrangements to Hobbs, and the latter, not having heard from Respondent by De-
cember 18, wrote Charlie Bartlett (with a copy to Mueller), pointing out their
failure to communicate with the Local's committee about a meeting date during the
week of December 18. Hobbs asked in this letter that he be advised whether Re-
spondent could meet between December 26 through 30, both inclusive. Mueller
admits that Respondent made no reply of any kind to this letter. The first informa-
tion Hobbs received about the January 10 meeting, was on January 2, when Sutter-
field, president of the Local, told him that Respondent had advised that it would be
available for ,a meeting on January 10.
Mueller admits that Charlie Bartlett returned from his west coast trip on De-
cember 20. There is no evidence tending to show, nor does Respondent claim, that
Charlie Bartlett was unavailable between December 20 and January 10 for negotia-
tions with the Union. Respondent does claim that between December 20 and Janu-
ary 10, Edward and Irving Bartlett were in Brownsville, Texas, taking care of some
rather extensive citrus groves owned by Edward Bartlett. Mueller admitted that it
would have been possible for Edward or Irving Bartlett, or both, to have returned
to Sapulpa, during that period, but claims that he had no way of knowing what
sacrifices on their part this would have entailed.
The parties met on January 10 and toward the end of that day Hobbs asked
Mueller when he would be available for further meetings 9 Mueller replied he was
very busy, that Charlie Bartlett had to attend the Home Show in Chicago, and that
he, Mueller, would try to communicate with Hobbs "in a couple of weeks." Hobbs
then told Mueller that the Union was most unhappy about the delay in getting
meetings scheduled, and that he felt Respondent was "stalling." Mueller replied
that nothing would be accomplished by arguing about when future meetings would
be held. Hobbs again expressed his dissatisfaction about the delay in scheduling
meetings, and stated that Mueller would hear from him further about the matter.
Mueller's only reply was that he was "doing the best he could." 10 At this point one
of the Bartletts stated that they should be back from the Home Show in time to let
the Union know about a further meeting by January 22.
On January 15, Hobbs wrote Mueller reviewing what had occurred up to that
time, and complained of the delays in scheduling meetings, telling Mueller that the
time had arrived for Mueller and his client to "quit stalling and agree to set up
meeting dates to get this contract negotiated." In this letter Hobbs proposed that
the parties meet on January 23, 24, 25, and 26, and if no agreement was reached,
that further meetings be held on February 6, 7, 8, and 9, and asked, if the dates he
P There is also a conflict between Hobbs and Mueller as to what was discussed between
them in the November 21 telephone conversation, Mueller stating that he had no recollec-
tion of Hobbs ' suggesting meetings between November 27 and 30 I would credit Hobbs
because Mueller failed to deny that Hobbs had suggested such meeting dates. Again,
I regard this conflict of no particular importance in view of my assumption that there
was no undue delay in the scheduling or holding of the December 7 and 8 meeting
8 Neither Hobbs nor Brig was present at this meeting ; Biehle acting as chief spokesman
for the union negotiators Edward Bartlett was not among those present for Respondent
9 At the January 10 meeting the entire union negotiating committee was present except
Brig, and Biehle left about noon Ed Bartlett was not present for Respondent
10 At this meeting Hobbs also asked Mueller when Respondent would be ready to submit
counterproposals, to which Mueller replied, "When you ask for them " Hobbs said, "We're
asking now " Mueller, who had been preparing to leave , resumed his ;seat and gave
Hobbs about 10 items as counterproposals.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mentioned were not agreeable, that Mueller suggest alternate dates as promptly as
possible.
On January 22, Mueller wrote Hobbs suggesting that the parties meet on February 5
and 6, and by letter dated January 24, Hobbs agreed. Although Mueller's letter was
a week after Hobbs' letter of January 15, he made no reference to that letter. The
reason for this does not appear in the record. In any event, Mueller, on January 23,
acknowledged receipt of Hobbs' letter of January 15. Although Mueller does not
with specificity deny the factual statement made by Hobbs, he did assert that Hobbs
has made "unfounded charges," and that because in his view nothing is accomplished
by getting into a "cuss fight," he is refraining, for the time being, from answering
Hobbs' letter in detail, as well as from pointing out "significant facts" which Hobbs
omitted.
Hobbs, under date of February 27, replied to Mueller's letter of January 23, the
delay in replying being attributed by Hobbs to absence from his office. Hobbs, in
effect, reiterated the assertions in his January 1-9 letter to Mueller, telling the latter
"you and your client made the record," and that if, as Mueller claimed, any facts
had been withheld, he (Hobbs) would like to know what they are. Hobbs closed
this letter by again urging Mueller to agree to meeting dates so that a contract might
be negotiated.
In the meantime, the parties met on February 5 and 6 pursuant to the exchange
of letters between Mueller and Hobbs dated January 22 and 24, respectively."
Although Mueller claimed that meetings with the Union between January 22 and
February 5 would not have been consistent with the commitments of the Bartletts
and himself, the basis for this assertion is not stated unless it be the claim that he was
busy attending to the affairs of other clients. Mueller admits that on January 23 he
was in Sapulpa to discuss with the Bartletts some contract proposals which he intended
to submit to the Union. Mueller also admits that toward the end of the day on
February 6, he told Biehle, spokesman for the union negotiators in the absence of
Hobbs, that he would let the Company know about his schedule, and they in turn
could let the Local's committee know about a date for future meetings. Mueller
likewise admits that after February 6, he did not, nor to his knowledge did any
official of Respondent, make any effort to schedule meetings with the Union until
shortly before March 9.12 While Mueller claims that during the interval between
February 6 and March 9 he was occupied with business matters of one kind or
another, he admitted that he could have been avaliable for meetings anytime Re-
spondent wanted him, consistent with settings in the courts.13
There is a substantial conflict in the evidence as to what occurred at the final
meeting between the parties on March 9.14 Because this was the last meeting, it seems
appropriate to set forth in detail the versions of the respective witnesses. Mueller's
version is as follows:
Shortly before the session adjourned at approximately 4:10 p.m., Hobbs made
some statement to the effect that the Union had moved and accepted a number of
Respondent's proposals, and that it was now time for Respondent to accept some
of the Union's proposals. Mueller stated that Respondent had given a great deal
of thought to its proposal and was sincere in offering them. Hobbs asked, "Are
you refusing to bargain with us?" Mueller replied, "If such was our intention
we would not admit it; everything we have done has been in good faith." Mueller
then told Hobbs that in the course of the discussions that day, a number of items
had been passed at the latter's request, and that time could be spent in talking about
those. Hobbs replied that with respect to some of the passed items it was his
intention to prepare counterproposals, which he outlined in a general way, but that
time would be needed to prepare them in final form and until this was done nothing
further could be discussed. Mueller then asked Hobbs whether he wanted to suspend
"The usual committee for the Union was present for this meeting except that Hobbs
did not attend at all, and Brig attended only on February 5 For Respondent the entire
committee attended except for Edward Bartlett.
12 The first information Hobbs received about a meeting on March 9, was on March 2 or 3,
when he was told by Sutterfield, president of the Local, that Respondent had suggested a
meeting on March 9 Hobbs told Sutterfield that the suggested date was agreeable
13 Although Mueller detailed the various business matters on which he was engaged vir-
tually every business day between February 6 and March 9, the only court commitment
he referred to was a court of appeals argument on February 21
14 Absent from the Union's negotiating committee at this meeting were Biehle and
Brig; Hobbs acting as spokesman Absent from the Company's negotiating committee
were Edward Bartlett and Charlie Bartlett, the latter being ill and confined to his home
on that day
BARTLETT-COLLINS COMPANY 207
bargaining until he had prepared his counterproposals, and then set up a meeting,
to which Hobbs replied, "I guess so." Mueller agreed to this, telling Hobbs, "Let
us know when you are ready to proceed," and on this note the meeting adjourned.
Mueller did not regard the bargaining as "overwith," and was prepared to proceed
with the bargaining at the time, having canceled a plane reservation during the
luncheon recess in order that he could continue with the bargaining late in the
evening of that day. Mueller claims that the reason for the lack of bargaining
since March 9 is that Respondent has not been asked to bargain, the Union having
never advised Respondent that it was prepared to submit counterproposals, or that
it desired to bargain further.
Hobbs' version of what transpired at the March 9 meeting, is as follows:
A few minutes before the meeting adjourned shortly before 5 p.m., he asked
Mueller to suggest some dates for future meetings. Mueller replied that he could
not do so without checking his schedule, which was very heavy, but that he or the
Company would let the Local's committee know when they could meet again. It
was at this point that he told Mueller that the Union had accepted a number of
Respondent's proposals, and that it was time that Respondent now accepted some
of those proposed by the Union. Hobbs denied that he told Mueller that he was
not prepared to proceed with the bargaining, or that he would have to have time
to prepare counterproposals before he could bargain further. Since March 9, he
has heard nothing from Mueller, or from the Company, about further bargaining.
Hobbs admits that since March 9, he has made no demand on Respondent for
bargaining because, as he put it, he was waiting for Mueller to "live up to his word,
and let us know when he would be available for that purpose."
I credit Hobbs, and find that the meeting of March 9 concluded with a commit-
ment by Mueller to notify the Union when he would be available to resume nego-
tiations. I reach this conclusion because it is entirely consistent with the course of
conduct pursued by both the Union and Respondent during the prior negotiations.
Moreover, I find it difficult to believe that a certified union , which for 5 months
immediately following its certification had vigorously pressed for meeting dates to
negotiate a contract with the employer, would ask for a break in negotiations to
enable it to prepare revised proposals and then, for no apparent reason , fail to call
on the employer for further bargaining . Yet, that precise conclusion is required
if Mueller's version of the circumstances, under which the March 9 meeting con-
cluded, is accepted. That this Union has not abandoned its certification , and that it
still desires bargaining with the employer, would appear to be irrefutably established
by the fact that it filed and is vigorously pursuing the charges filed herein about
5 weeks following the March 9 meeting. In view of the delays which it had experi-
enced in scheduling meetings since December 10, which meetings were held for only
1 or 2 days about a month apart, it is not surprising that the Union after waiting
another 5 weeks with no word from Respondent, filed its charge.
B. Concluding findings
Section 8 (d) imposes on negotiating parties a mutual obligation " to meet at
reasonable times" and confer with a view of reaching agreement on contract terms.
That interruptions to commerce may be prevented or minimized , Section 204 of
the Labor Management Relations Act requires employers and employees alike to
"arrange promptly" for conferences and to endeavor "expeditiously" to bring about a
resolution of disputes over contract terms in which they may be engaged. The duty
to do so is part and parcel of the obligation to bargain collectively. In I. H. Rutter-
Rex Manufacturing Company, Inc., 86 NLRB 470, the Board stated:
The obligation to bargain collectively surely emcompasses the affirmative
duty to make expeditious and prompt arrangements , within reason, for meet-
ing and conferring. Agreement is stifled at its source if opportunity is not
accorded for discussion or so delayed as to invoke or prolong unrest or suspicion.
It is not unreasonable to expect of a party to collective bargaining that he dis-
play a degree of diligence and promptness in arranging for the elimination of
obstacles thereto, comparable to that which he would display in his other
business affairs of importance.
The conduct of prompt and expeditious negotiations is a matter of importance not
only to the negotiating parties, but to the public as well . A delay in collective
bargaining , as the Board observed in Burgie Vinegar Company, 71 NLRB 829,
entails more than mere postponement of an ordinary business trans-
action, for the passage of time itself, while employees grow dissatisfied and
impatient at their designated bargaining agent 's failure to report progress,
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weakens the unity and economic power of the group, and impairs the Union's
ability to secure a beneficial contract. The Act . does not permit an em-
ployer to secure, even unintentionally, a dominant position at the bargaining
table by means of unreasonable delay.
To the same effect see: "M" System, Inc., Mobile Home Division Mid-States Corpora-
tion, 129 NLRB 527, 549; Butcher Boy Refrigerator Door Company, 127 NLRB
1360, enfd. 290 F. 2d 22 (C.A. 7); Derenson's, 104 NLRB 273; Cummer-Graham
Company, 122 NLRB 1044.
Applying the aforementioned rule to the facts of the instant case , I must and do
conclude that Respondent did not devote, to the task of bargaining with the Union,
that degree of diligence and promptness which it, or any other prudent man, would
display in the handling of other important business affairs. Rather, the inference
which I draw from the record, considered as a whole, is that at least since December
26, 1961, Respondent deliberately refrained from meeting with the Union "at
reasonable times," and thereby violated Section 8(a) (5) of the Act.
Notwithstanding the General Counsel's contrary contention, I start with the as-
sumption that there was no inordinate delay in the scheduling of the first meeting
held on November 7, or in the lapse of time between that meeting and the one which
followed it on December 7 and 8.15 The time which elapsed between the meetings
following December 8, in my opinion, presents a different situation and requires a
different result.
As found above, the December 8 meeting adjourned with the understanding that in
view of Charlie Bartlett's anticipated return from his west coast trip on or about
December 20, Respondent would endeavor to arrange a meeting during the week
of December 18. Respondent does not claim that it made any effort to comply with
that promise, nor did it give any explanation, plausible or implausible, for its failure
to do so. Admittedly, no reply was made to Hobbs' letter of December 18 which
expressed the desire of the Union to complete negotiations as promptly as possible,
and suggested meetings between December 26 and 30. No explanation is given for
the failure to respond to this letter. It is clear from the record that Charlie Bartlett
was in Sapulpa during the period suggested by Hobbs, and no explanation is given
for his failure to meet with the Union during that period, unless perhaps it is
Mueller's testimony that Charlie Bartlett wanted Irving Bartlett present at all
negotiations and the latter was in Texas assisting Edward Barlett in the harvesting
of a citrus crop. It must be remembered, however, that the citrus enterprise was one
of Edward Bartlett's private investments which, so far as this record indicates, had no
connection with Respondent Company or its business affairs.
In a similar posture is the delay between the meeting on January 10 and the next
bargaining sessions on February 5 and 6. The January 10 meeting adjourned on the
note that the Bartletts expected to return from the Home Show in Chicago in time
to let the Union know about a further meeting by January 22. It was at this meeting
that Hobbs told Mueller that the Union was unhappy about the delay in getting meet-
ings scheduled, and accused Mueller of "stalling." All this was reiterated by Hobbs
in his letter of January 15 to Mueller, and he then suggested meetings from January
23 through 26, and if no agreement was reached that the parties meet again from
February 6 through 9. Although Mueller's letter to Hobbs, dated January 22, is a
week after Hobbs' letter suggesting the January meeting dates, Hobbs' charges are
at that time completely ignored and the meeting dates of February 5 and 6 are sug-
gested, which Hobbs promptly agreed to 16 Although Mueller claims that a meeting
with the Union during the January period suggested by Hobbs would not have
been consistent with the commitments which he and the Bartletts had, Mueller ad-
16I make this assumption because more time was obviously needed for Respondent to
gather and submit the data which the Union had requested, and to otherwise prepare
itself for the ensuing negotiations. Approximately one-third of the period which elapsed
between the first and second meetings (November 9 through 17), is accounted for by the
unavailability of Hobbs. From November 17 to the end of that month both Charlie and
Irving Bartlett were in New York giving their attention to important company business
While it could be argued that an effort should have been made at the November 7 meeting
to agree on at least a tentative date for future meetings, subject to the availability of
the Bartletts, rather than waiting for their return before attempting to agree on a date,
the fact remains that the Bartletts did not return from New York until November 30.
Even if it be assumed that the negotiations could have been resumed the following day
(an assumption which I do not regard as justifiable), the most that could have been
saved is 1 week.
10 It is interesting to note that when Mueller on January 23 replied to Hobbs' letter of
January 15, nothing is said about expediting meeting dates.
BARTLETT-COLLINS COMPANY 209
mitted that he was in Tulsa conferring with the Bartletts on January 23, and while
Mueller testified to various business engagements on behalf of other clients during
the period referred to, the evidence does not indicate why the Bartletts could not
have then been available for bargaining.
Likewise, except for the possible unavailability of Mueller, the record does not
establish why the Bartletts could not have continued with the bargaining sessions
on February 7, 8, and 9, dates which Hobbs has suggested in his letter of January
15, or why they were not available on other days between February 6 and March 9,
when the final meeting was held. Mueller admits that the February 6 meeting closed
on the note that he would advise the Company of his commitments and the Company
would in turn notify the Local's committee when it would be available for a meeting.
Mueller further admits that he could have been available whenever the Company
wanted him consistent with his settings in the courts.17 However, Respondent made
no effort to schedule meetings between February 6 and March 9 nor did it give any
reason for its failure to do so.
Not only is Respondent's conduct since March 9 a part and parcel of its totality of
conduct during the entire period of negotiations, but standing alone, appears to be
a clear-cut failure "to meet at reasonable times," as required by Section 8(d). As
I have found, the March 9 meeting concluded on the note that Respondent would
notify the Union when it would be available for further negotiations. Admittedly,
it has not done so. In Butcher Boy Refrigerator Door Company, 127 NLRB 1360,
1361, the Board found an independent refusal to bargain in good faith based on the
employer's "`failure to fulfill its promise . . . to let the Union know when the Re-
spondent would meet again." Respondent does not contend that any impasse was
reached during the negotiations on March 9. Its only defense for its failure to at-
tempt to schedule meetings since March 9 is that it has received no request from the
Union for such bargaining. I find this defense to be without merit for two reasons:
First, as I have indicated, it was Respondent, not the Union, that assumed the obli-
gation of arranging for further meetings. Secondly, even assuming that Respondent
had not agreed to arrange meetings, the obligation to bargain is a continuing one and
rests with the employer. True, the duty to bargain does not arise until a request there-
for has been made by the collective-bargaining representative, but the statute does
not require that the representative renew such a request every time there is a recess
in the negotiations. The M. H. Ritzwoller Co. v. N.L.R.B., 114 F. 2d 432, 436
(C.A. 7). Here the initial request for bargaining was made by the Union in
October 1961, and although such was not required to keep Respondent's obliga-
tion current, it was, in fact, renewed at each meeting, and by Hobbs' letters of Decem-
ber 18, January 15, and February 27. No more was required of the Union.
Although counsel for the Respondent has not filed a brief with me, I assume from
his testimony and positions stated at the hearing, that he contends here, as he did in
Exchange Parts Company, 16-CA-1579, 1590 [139 NLRB 710], now pending
before the Board,ts that demands upon his time by his many clients were so great
that it was not possible for him to devote more time than he did to bargaining in the
instant case. While the record leaves no room for doubt that Mueller is an extremely
busy labor attorney with a great number of clients who are constantly making de-
mands on his time with regard to matters necessitating his prompt attention, I do
not believe that his obligations to his other clients can be relied upon as a defense
in the instant case. I am in full accord with what was said in this connection by
Trial Examiner Leff, and subsequently approved by the Board, in "M" Systems Inc,
Mobile Home Division Mid-States Corporation, 129 NLRB 527, 549:
The record here quite clearly supports a finding that the Respondent, in arrang-
ing meetings with the Union failed to display the degree of diligence that proper
performance of its bargaining obligations required. This is so whether or not the
delays were inspired by a deliberate scheme to engage in dilatory tactics. One
may sympathize with the problems of the Respondent's negotiator in fitting the
negotiating meetings into the schedule of his busy law practice, but this provides
the Respondent with no legal excuse for the consequent inordinately long de-
lays tending to impair employee statutory rights. Labor relations are urgent
matters too. If [Counsel's] other activities made it impossible for him to de-
vote adequate time to reasonably prompt and continuous negotiations, it was the
Respondent's obligation to furnish a representative who could. The duty to
bargain in good faith includes the duty to be available for negotiations at reason-
able times as the statute requires. That duty is not discharged by turning over
17 As pointed out supra, the only court engagement Mueller referred to in relating his
various business commitments was a court of appeals argument on February 21.
18 See II1-241-62, issued January 11, 1962, by Trial Examiner Ramey Donovan
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conduct of negotiations to one whose other activities make him not so avail-
able. See, Cummer-Graham Company, 122 NLRB 1044; Derenson's, 104 NLRB
273.
Accordingly, I find and conclude that at all times since December 26, 1961, and
particularly since March 9, 1962, Respondent has failed to meet with the Union at
reasonable times for the purpose of bargaining collectively, and thereby violated
Section 8(a) (5) and (1) of the Act.19
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom , and that it take certain affirmative
action deemed necessary to dissipate the effects thereof and to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International and Local are labor organizations within the meaning of Section
2 (5) of the Act.
3. United Glass and Ceramic Workers of North America, AFL-CIO, was on
October 9, 1961, and has at all times thereafter been, the certified exclusive bargain-
ing representative, for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act, of all production and maintenance employees employed at
Respondent's plant at Sapulpa, Oklahoma, including control laboratory employees,
sample room attendants, machine shop employees, shipping and receiving employees,
truckdrivers, and plant clericals, exclusive of moldmakers, moldmaker apprentices,
office clerical employees, professional and technical employees, watchmen, guards,
and all supervisors as defined in the Act.
4. By failing to meet at reasonable times with United Glass and Ceramic Workers
of North America, AFL-CIO, as the exclusive representative of all employees in
the unit described above, for the purposes of collective bargaining, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
5. By the aforesaid conduct, Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that the Respondent, Bartlett-Collins Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Glass and Ceramic Workers of
North America, AFL-CIO, as the exclusive collective-bargaining representative of all
19 While I do not think that the determination of the date on which the refusal to bar-
gain first occurred is of material significance in the instant case, as there is no Section
10(b) reinstatement or economic strike problem, I have nonetheless fixed it at Decem-
ber 26, 1961. Having found that there was no undue delay in the scheduling or holding
of the November 7 and December 7 and 8 meetings, such refusal must have occurred at
some later date. December 26, 1961 , was selected because it is the first meeting date
suggested in Hobbs' letter of December 18, to which Respondent , for no justifiable reasons
apparent on the record, failed to respond.
BARTLETT -COLLINS COMPANY 211
its employees in the appropriate unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, by unduly delaying
meetings, or by failing to meet at reasonable times. The appropriate unit is: All
production and maintenance employees at the Bartlett-Collins Company plant at
Sapulpa, Oklahoma, including control laboratory employees, sample room attendants,
machine shop employees, shipping and receiving employees, truckdrivers, and plant
clericals, exclusive of moldmakers , moldmaker apprentices , office clerical employees,
professional and technical employees, watchmen, guards, and all supervisors as de-
fined in the Act.
(b) In any like or related manner interfering with , restraining , or coercing em-
ployees in the exercise of their right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection , or to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as authorized by Sec-
tion 8(a)(3) of the National Labor Relations Act, as amended.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request, meet at reasonable times and bargain collectively with United
Glass and Ceramic Workers of North America, AFL-CIO, as the exclusive rep-
resentative of the employees in the appropriate unit set forth above, and embody any
understanding reached in a signed contract.
(b) Post at its plant in Sapulpa, Oklahoma, copies of the attached notice marked
"Appendix." 20 Copies of said notice, to be furnished by the Regional Director
for the Sixteenth Region (Fort Worth, Texas), shall, after being duly signed by
a representative of the Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director, in writing, within 20 days from the date of
the receipt of this Intermediate Report and Recommended Order, what steps the
Respondent has taken to comply herewith.21
20 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
21 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director , In writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with United Glass and Ceramic
Workers of North America, AFL-CIO, as the certified exclusive bargaining
representative of the employees in the appropriate unit with respect to rates
of pay, wages, hours of employment, and other terms and conditions of em-
ployment, by unduly delaying meetings or by failing to meet at reasonable times.
The appropriate unit is:
All production and maintenance employees employed at the Sapulpa,
Oklahoma, plant of Bartlett-Collins Company, including control laboratory
employees , sample room attendants, machine shop employees , shipping
and receiving employees, truckdrivers, and plant clericals , exclusive of mold-
makers, moldmaker apprentices , office clerical employees , professional and
technical employees , watchmen , guards, and all supervisors as defined in
the Act.
681-492-63-vol. 140-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with , restrain, or co-
erce our employees in the exercise of their rights to self-organization, to form,
join, or assist any labor organization , to bargain collectively through repre-
sentatives of their own choosing , to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities , except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment , as authorized by Section 8(a)(3) of the Na-
tional Labor Relations Act, as amended.
WE WILL, upon request, meet at reasonable times and bargain collectively
with United Glass and Ceramic Workers of North America, AFL-CIO, as the
exclusive bargaining representative of the employees in the aforementioned ap-
propriate unit , and, if an understanding is reached , embody such understanding
in a signed agreement.
All our employees are free to become, remain , or refrain from becoming or remain-
ing members of any labor organization.
BARTLETT-COLLINS COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building , 110 West Fifth Street, Fort Worth 2, Texas, Telephone
No. Edison 5-4211, Extension 2131 , if they have any question concerning this notice
or compliance with its provisions.
The A. B. Hirschfeld Press, Inc. and Local 15, Amalgamated
Lithographers of America . Case No. 27-RC-2165. December
20, 1962
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Allison E. Nutt, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
Upon the entire record in this case the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.'
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
1 The following labor organizations were permitted to intervene on the basis of their
current contracts covering employees of the Employer : Offset Workers , Printing Pressmen
& Assistants Union No. 40, IPP & AU of N.A., AFL--CIO ; Denver Photo-Engravers Union
No. 18, IPEU of N.A., AFL-CIO ; Denver Typographical Union No. 49, ITU, AFL-CIO,
referred to herein respectively as Pressmen , Photo-Engravers , and Typographers . Inter-
national Photo-Engravers Union of North America, AFL-CIO, was also allowed to inter-
vene separately on its own behalf.
140 NLRB No. 35.