Beacon Piece Dyeing and Finishing Co., Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1958

121 N.L.R.B. 953 (N.L.R.B. 1958)

BEACON PIECE DYEING AND FINISHING CO, INC 953
for the Petitioner, while wearing a button indicating that he was a
"Committee" member, gave a union button to a fellow employee and
said, "Here, wear this and if you do not wear it you will have the hell
belted out of you " It is contended by the Employer that by wearing
the "Committee" button Belanos became an agent of the Petitioner,
which is thus responsible for his statement The Employer further
contends that the statement constituted such coercion as to warrant
setting aside the election
The Regional Director's investigation failed to reveal evidence that
Belanos was an agent of the Petitioner at the time he made the
statement The Employer's exceptions do not advert to specific sub-
stantial evidence contraverting the Regional Director's finding in
this regard Further, Belanos' alleged statement standing alone was
not such as would warrant setting aside the election' We find,
therefore, that the objections do not raise substantial and material
issues with respect to the conduct or results of the election Accord-
ingly, they are hereby overruled and the Employer's request for a
hearing is denied
As no specific exceptions have been filed to the Regional Director's
recommendations for the disposition of the challenged ballots cast by
Fred Gouge and Pedro Trevino, we hereby adopt them and sustain
the challenges to these ballots The six remaining challenged ballots
cannot affect the outcome of the election
As the Petitioner has secured a majority of the valid votes cast, we
shall, as recommended by the Regional Director, certify the Petitioner
as the exclusive bargaining representative of the employees in the unit
heretofore found appropriate in this proceeding
[The Board certified District Lodge 131, International Association
of Machinists, AFL-CIO, as the designated collective-bargaining
representative of all production and maintenance employees at the
Employer's Fort Madison, Iowa, plant, excluding professional em-
ployees, office clerical employees, guards, and supervisors as defined
in the Act ]
3 Poi sett Lumber and Menufaetursng Company, 107 NLRB 234 Cf Diamond State
Poultry Go, Inc, 107 NLRB 3
Beacon Piece Dyeing and Finishing Co., Inc and Local 239,
United Textile Workers of America , AFL-CIO. Case No
2-CA-5082 September 23, 1958
DECISION AND ORDER
On June 28,1957, Trial Examiner W Gerard Ryan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
121 NLRB No 113
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had not engaged in any unfair labor practices and recom-
mending that the complaint be dismissed in its entirety, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the General Counsel filed exceptions to the Intermediate Report, to-
gether with a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby rejects the findings, conclusions, and recommenda-
tions of the Trial Examiner, except to the extent that they are
consistent herewith.
The Trial Examiner found that the Respondent did not violate
Section 8 (a) (5) of the Act by unilaterally, and without notice to the
certified Union, increasing workloads and granting a general wage
increase therefor. We disagree.
The Respondent and the Union have had several collective-bargain-
ing agreements since the Union was certified as bargaining representa-
tive in 1952. Their current contract runs from January 1, 1956, to
December 31, 1958. This agreement, as well as all previous agree-
ments, makes no reference to workloads or the number of machines an
employee shall be required to operate, and sets forth only minimum
or starting rates of pay.
The testimony on both sides is that in the negotiations on the initial
contract in 1952 the Union proposed a contract provision limiting the
number of machines (jigs and dye boxes) to be operated by an opera-
tor, the proposal was discussed, and the proposal was rejected by the
Respondent. However, there is some conflict in the testimony as to
what occurred in this connection at negotiations on subsequent con-
tracts. The Union testified that there was no demand or discussion
on workloads at any of these subsequent contract negotiations, but
there was some discussion of the matter at other times. The Respond-
ent, on the other hand, testified at one point in a general way that in
the negotiations on "every" contract subsequent to 1952 the Union
made a workload demand, the demand was discussed, and the Union
dropped the demand after the Respondent gave in on other union
demands. The Trial Examiner apparently considered only this testi-
mony, and credited the Respondent's version on the ground that "It is
incredible to me that workloads were such a frequent topic of discus-
sion between the parties throughout each contract year but when the
time came to negotiate contracts the Union never mentioned it."
However, the Trial Examiner apparently failed to consider much
more significant testimony given in this connection, as will be dis-
cussed more fully infra. Thus, in testimony dealing more impor-
tantly and specifically with what occurred in this connection at the
BEACON PIECE DYEING AND FINISHING CO., INC. 955
negotiations on the current contract, the Respondent itself testified at,
another point that "There were demands at that time for workloads
and the statement that I made to the committee and also to the union
officials was that it would be impossible to discuss anything about
workloads because of many factors," and further stated, "Before we
go into any negotiations of any kind I won't discuss anything about
workloads." Accordingly, it appears from this testimony of the Re-
spondent itself, whom the Trial Examiner credits, that at the negotia-
tions on the current contract the Respondent did not bargain or
negotiate on the Union's workload demand but rather refused to even
discuss the matter.'
With respect to rates of pay, the Trial Examiner found in a general
way that it is clear from the testimony on both sides that the Re-
spondent "increased wages" above the minimum rates established by
the contracts several times throughout the years since 1952, without
objection from, and indeed with the acquiescence of, the Union. How-
ever, here too the Trial Examiner failed to consider and evaluate the
precise and determinative testimony on the subject. Thus, it is also
clear from the testimony on both sides that such wage increases, and
the Union's acquiescence therein, were limited to individual merit
wage increases, and did not encompass any general wage increases
based on increased workloads.
The only other background facts of any relevance consist of the
inclusion in all contracts since 1952 of a grievance procedure covering
"any matter relating to this agreement or any matter not specifically
referred to by this agreement but germane to the subject matter
hereof," with arbitration as the last step in this grievance procedure.
On August 13, 1956, the Respondent ordered all "jig" operators in
the wet department to operate 3 jigs on a regular basis, where formerly
2 jigs were normally operated on a regular basis.a A few days later
the Respondent granted a wage increase therefor of 16 cents per hour
to the jig operators retroactive to August 13, a sum never offered to,
or even discussed with, the Union for such an increased workload.
It is undisputed that this action taken by the Respondent was taken
unilaterally and without any notice to the Union, and the Trial Ex-
aminer so found.
On or about August 27, 1956, the Union met with the Respondent
concerning the action taken by the Respondent. According to the
3 Our dissenting colleague sets forth additional testimony of the Respondent, which
testimony is claimed to show that the Respondent did bargain in this connection. How-
ever, as we view the Respondent's entire testimony in this connection, it shows that in
the unequivocal language quoted above there was an initial complete refusal to bargain
on workload, that the_Respondent then presented in conclusive fashion a reason for such
refusal to bargain, and that as a result of this adamant position the Union then gave up
its workload demand for other concessions . In our opinion, this is not the type of
bargaining contemplated by the Act.
2 At times in the past when necessary the jig operators have operated more than two
jigs, but not on a regular or permanent basis.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited testimony of the Respondent, the Respondent told the
Union that the Respondent was willing to discuss the matter with
the Union to see what could be done, and if no agreement resulted the
Union could take the matter to arbitration under the contract;
the Union said that it would see about it .3 The Union's decision
was to file the charge herein.
The Trial Examiner found no violation of Section 8 (a) (5), pri-
marily on, the grounds that: (1) Respondent was free to increase
the workload since there was no workload clause in the contract, and
the subject of workload had been "bargained for" in all bargaining
sessions and then dropped in exchange for concessions by Respondent
on other proposals by the Union; and (2) Respondent also was free
to grant unilateral wage increases above the minimum and starting
rates in the contract, because Respondent, with the Union's acquies-
cence, had always granted individual wage increases above the mini-
mum. Thus, the Trial Examiner found in effect that the Union had
"waived" or "bargained away" its statutory rights to bargaining on
both increased workloads and general wage increases therefor. He
found further that the complaint should be dismissed because of the
grievance procedure, including compulsory arbitration, in the parties'
contract.
The Board has consistently held that an employer's action in chang-
ing the wage rates or other working conditions of its employees with-
out notice to, or consultation with, the labor organization which they
have chosen to represent them is in derogation of its duty to bargain
and is violative of Section 8 (a) (5).' Moreover, although the Board
has also held repeatedly that statutory rights may be "waived" by
collective bargaining, it has also said that such a waiver "will not
readily be inferred" and there must be "a clear and unmistakable
showing" that the waiver occurred.' The primary issue in this case,
therefore, is whether the Union "clearly and unmistakably" waived or
"bargained away" its statutory rights to bargaining on an increased
workload and a general wage increase therefor.'
With respect to workload, whatever may have happened relating
to waiver in negotiations on prior contracts, it is clear that the Union,
by demanding a workload clause in the negotiations on the current
contract, came into such negotiations with no intent to waive its
3 The Union's testimony in this connection was that the Respondent refused to discuss
the matter and suggested that the Union take the matter to arbitration. Howgver, on the
basis of the Respondent's credited testimony, the Trial Examiner found, and we agree,
that the Respondent did not, as alleged in the complaint, refuse to bargain with the
Union concerning the workloads and wage increases subsequent to August 13, 1956.
4 See e. g, Shoreline Enterprises of America, Inc, 117 NLRB 1619; Washington
Suburban Lines, 114 NLRB 808, 815, 816.
5 See International News Service Division of The Hearst Corporation, 113 NLRB 1067,
1070, and cases there cited.
6 Ibid.
BEACON PIECE DYEING AND,,FINISHING CO., INC. 957
bargaining rights on workload. Indeed, the Union made it clear that
it intended to exercise its bargaining rights on workload. Moreover,
it is also clear that there was no such waiver thereafter in the nego-
tiations regardless of which portion of the Respondent's rather con-
flicting testimony is considered controlling. The Trial Examiner
apparently considered as controlling the Respondent's generalized
testimony that in the negotiations on "every" contract subsequent to
1952 the Union made a workload demand, the demand; was discussed,
and the Union dropped the demand after the Respondent gave in on
other union demands; and upon the basis of this generalized testi-
mony, he found that in the -negotiations on the current contract there
was bargaining on workload, with the Union ultimately abandoning
its workload demands for other concessions. We consider as control-
ling the Respondent's more specific testimony that at the negotiations
on the current contract the Respondent stated that "it would be im-
possible to discuss anything about workloads," and further stated,
"Before we go into any negotiations of any kind I won't discuss any-
thing about workloads"; and upon the basis of this testimony, and
the entire testimony of the Respondent in this connection, we find that
in the negotiations on the current contract the Respondent did not
bargain or negotiate on the Union's workload demand but rather
refused to even discuss the matter. Accordingly, we find further
that this complete absence of any bargaining but refusal instead by
the Respondent to even discuss workload could not possibly be con-
strued as a waiver by the Union of its bargaining rights on work-
load.7 The Union was rather an unwilling victim of a complete re-
moval of this subject from the bargaining table by the Respondent.
But even the Respondent's generalized testimony does not support the
Trial Examiner's waiver finding on workload. Thus, the Trial Ex-
aminer cites no precedent, and there is none, where the Board has
found a waiver of a bargaining right simply because a union has
abandoned a bargaining demand in return for other concessions. At
best the finding would have to be that there was an implied waiver
in such circumstances, and such a finding does not meet the Board's
established test that there must be "a clear and unmistakable show-
ing" that there was a waiver and that such a waiver "will not readily
be inferred." 8
T See also Stanisiaus Implement and Hardware Company, Ltd., 101 NLRB 394, where
the Board held that a unilateral wage increase after a refusal in negotiations to agree to
any wage increase is "the antithesis of good faith bargaining "
8 Cf. N. L. R. B. v. Nash-Flinch Company, 211 F . 2d 622 (C. A: 8), where the court in
effect found a waiver of bargaining rights on insurance and bonus plans in a situation
where such plans had previously been instituted by the employer , and then at contract
negotiations the newly certified union specifically proposed a "maintenance of standards"
provision continuing in effect "the highest minimum standards in effect at the time of the
signing of this agreement," but then agreed to the employer 's counterproposed amend-
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We disagree with our dissenting colleague's contention that the de-
cision in Speidel Corporation, 120 NLRB 733, is controlling here.
That was a situation where with each payment in the past of an em-
ployer-instituted bonus the employer had reminded its employees that
the bonus was "voluntary" and was not to be construed as establishing
a precedent, and the employer had a reasonable basis for believing
that its employees, and the union as well, concurred in this position
that it had taken in the past that the payment of bonuses was a matter
within its own prerogative, and was not a matter concerning which
the union, or anyone else, claimed dominion; and then at the latest
contract negotiations the employer rejected a union-proposed broad
"maintenance of privileges" provision for the stated reason of avoid-
ing a contractual obligation on bonuses, thereby reiterating in effect
its previous position in substance that bonuses were a subject of
"management prerogative," and the union by its complete silence ac-
quiesced in this position.
In the instant case, even assuming that the Respondent did bargain
on workload at negotiations on the current contract, as so strongly in-
sisted upon by our dissenting colleague, the Speidel decision still
remains clearly distinguishable. The first important distinction is
-that here, unlike Speidel, there is no evidence that in past years the
Respondent ever stated either to the employees or the Union in any
way, either in or outside of contract negotiations, that the Respondent
considered workload to be a matter of "management prerogative" on
which it reserved the right to take unilateral action, or that either the
employees or the Union concurred in any such nonexistent position.
On the contrary, the evidence clearly shows that the Respondent, as
well as the Union, has always considered workload to be a bargainable
matter. Thus, the Respondent's credited testimony shows that at
negotiations on each of the past contracts, the Union made a workload
demand, the Respondent bargained on such demand, and the Union
ultimately gave up such demand for other concessions; and there is
no evidence that the Respondent ever took any manner of "manage-
ment prerogative", position on these workload demands. Moreover,
the record shows further that outside of contract negotiations the
Respondent bargained extensively with the Union with respect to
workload over a period of several years. Accordingly, there is no
background of any concurrence by either the Union or the employees
in any position of "management prerogative" on workload, but rather
.a background of clear recognition by the Respondent that workload
ment of such provision continuing in effect only "the highest minimum standards specified
in this agreement," with no specification in the contract continuing the insurance and
bonus plans.
BEACON PIECE DYEING AND FINISHING CO., INC. 959
was a bargaining matter.9 The second important distinction is that
here, unlike Speidel, the evidence will not support a finding that even
in the negotiations on the current contract did the Respondent take a
position that workload was a matter of "management prerogative" on
which it reserved the right to take unilateral action. Thus, all that
the Respondent did say at these negotiations was that its refusal to
discuss anything about workloads was based on the fact that the
Union had negotiated contracts with similar concerns in the area
which did not contain workload provisions. This adds up simply to a
position by the Respondent that it did not wish to give the Union
anymore than the Union had been able to obtain from similar com-
panies in the area. It does not add up, as asserted by our dissenting
colleague in an unjustified expansion of the actual testimony, to any
position that the Respondent considered workload a matter of "man-
agement prerogative" on which it reserved the right to take unilateral
action. (Moreover, subsequently, during the term of the current con-
tract, the Respondent and the Union again engaged in extracontract
negotiations on workload, which not only shows' a continuing recog-
nition that workload was still a bargainable matter, but also provides
further proof that the antecedent contract negotiations were not in-
-tended to give the Respondent the right of unilateral action on work-
load.10 The last important distinction is that here, unlike Speidel,
the Union cannot be said to have acquiesced in any "management
prerogative" position on workload so as to "hand over" ' to the Re-
spondent the Union's statutory bargaining rights on workload. In
the first place, as shown above; the Respondent took no such position
for the Union to acquiesce in. In the second place, the Union was
simply trading off one demand in return for concessions on another,
which is an everyday occurrence in collective bargaining having no
9 Our dissenting colleague is in error in stating that "for a number of years . . . the
Respondent had asserted the position to the Union and its representatives that, in order
to compete with other similar industries in the area with whom the Union had not
entered into any agreements for workload limitations, it was necessary for the Respondent
to remain free to assign workloads in such manner as it might deem to be required" ;
and that this position "was asserted . . repeatedly, both in bargaining sessions for the
parties ' several successive contracts and in frequent discussions outside of formal contract
negotiations ." There is no evidence at all of any such position being taken in previous
contract negotiations or in any extracontract negotiations . Moreover , as demonstrated
below, the record will not even support a finding that such a position was taken at negotia-
tions on the current contract
10 In these negotiations, the Respondent took the position that it wished to increas(
workload without giving the employees any additional compensation therefor, while thi,
Union took the position that there should be additional compensation therefor, and the
parties reached an impasse because of these divergent views However, the Respondent
was able to persuade the Union to submit the matter, on the Respondent's terms, to the
employees at a Union meeting on August 12, 1956. But the Respondent, without even
waiting to learn the results of the meeting, unilaterally put into effect on August 13, 1956,
the increased workload. and the wage increase therefor, which action we have found to be
violative of the Act As stated in the Stanislaus case, supra, such a course of action,
where an employer unilaterally puts into effect the very conditions of employment which
it has refused to the union in collective bargaining negotiations, is "the antithesis of
good faith bargaining "
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relation whatsoever to an asserted "management prerogative" posi-
tion by an employer and the union's acquiescence therein 11
In our opinion, the basic fallacy in our dissenting colleague's posi-
tion is that he has lost sight of the crucial fact that more often than
not, as here, an employer will resist inclusion of a certain provision
in a contract simply because he is opposed to the provision on its
merits, and not because he is seeking the right to act unilaterally on
the subject as a matter of "management prerogative"; and the union,
as here, also with no thought in mind that a possible relinquishment
of its statutory bargaining rights on the subject are involved, will
trade off its demands on the subject in return for concessions on other
demands as a part of the normal and everyday collective-bargaining
process. Is our dissenting colleague prepared to say that the Board
should find a"waiver" of statutory bargaining rights in this common
"give and take" bargaining situation? To read into such an essential
and basic part of the collective-bargaining process, as our dissenting
colleague would do, an implied "management prerogative" position
by the employer, an implied agreement thereon by the union, and a
resulting implied waiver of the union's statutory bargaining rights on
the subj el:t, would have the following results : (1) It would be contra
to the Board's established test for waiver of a collective-bargaining
right, as reaffirmed in Speidel, that such a waiver "will not readily be
inferred"; (2) without meeting that test, it would not only deprive
the union of a statutory right it never intended to relinquish, but would
give the employer a right of unilateral action on the subject which
even he never intended to acquire; (3) it would encourage employers
to firmly resist inclusion in contracts of as many subjects as possible,
with a view to such resistance giving them a right of unilateral action
thereafter on all subjects excluded from the contract, thereby imped-
ing the collective-bargaining process and creating an atmosphere
which inevitably would lead to more strikes; and (4) it would dis-
courage unions from presenting any subject in negotiations, for a sim-
ple refusal by the employer to agree to the demand on the subject would
leave the union in the unhappy dilemma of either giving up the de-
mand and thereby losing its bargaining rights on the subject, or
striking in support of the demand-this too would seriously impede
the collective-bargaining process and lead to more strikes. These are
the very undesirable consequences, which would flow from our dis-
senting colleague's position.
With respect to wages, we, cannot agree with the Trial Examiner
that the Union's apparent waiver of its right to bargain on individual
merit wage increases should be construed as a waiver also of its right
to bargain on a general wage increase, particularly where the general
1' Cf. Spetdel, where the union simply remained acquiescently silent to the employer's
position that bonuses were a matter of "management prerogative."
BEACON PIECE DYEING AND FINISHING CO., INC. 961
wage increase was given not on a merit basis but in return for an
increased workload. In our opinion, the subject matter of the appar-
ent waiver and the subject matter of the unilateral action are so
patently different as to require no extended discussion to support our
conclusion that the apparent waiver of one was not a waiver of the
other.l3 We do note, however, that our dissenting colleague presents
no record evidence whatsoever to support his position that the parties
had also agreed that general wage increases should remain a subject of
`'management prerogative." This is so for the simple reason that the
record contains no evidence whatsoever that the Respondent at any
time ever took a "management prerogative" position on general wage
increases, either in contract or extracontract negotiations, let alone
obtain the Union's agreement thereon. Instead, our dissenting col-
league attempts to support his position in this connection by an unwar-
ranted extension of the Union's apparent waiver on individual merit
wage increases to a general wage increase, and by a speculative pre-
sumption that "'it would only seem natural" that the Respondent
secured such a waiver "correlatively with" a waiver on workload.
For the foregoing reasons , we reject the Trial Examiner's finding
in effect that the Union "waived" or "bargained away" its statutory
rights to bargaining on an increased workload and a general wage in-
crease therefor, and that for this reason the Respondent could lawfully
take such action unilaterally. We find that there was no such waiver,
and therefore no defense on the ground of waiver for the Respond-
ent's unilateral action.
As indicated above, the Trial Examiner gave as a further reason for
dismissing the complaint the fact that the parties had a grievance
procedure including compulsory arbitration in their contract which
covered not only contract matters but matters "germane to" the con-
tract. However, he gave no rationale and cited no precedent in sup-
port of this finding. Presumably, the implied rationale for this finding
is that the subject matter of the unilateral action was covered by the
grievance procedure, that therefore the Union's only remedy was
through the grievance procedure, and accordingly that the Board has
no jurisdiction over the instant subject matter. However, the Board
has consistently held that the collective-bargaining requirement of the
Act is not satisfied by a substitution of the grievance procedure of a
contract, unless the grievance provisions of the contract contain a
waiver of the statutory right "expressed in clear and unmistakable
terms." 13 And the Board has held further that there is no such un-
za Here too , the Trial Examiner cites no precedent to support his finding , and there
is none.
v See Hekman Furniture Company, 101 NLRB 631 ; Leland -Gifford Company, 95 NLRB
1306, 1322 ; The B. F. Goodrich Company, 89 NLRB 1151 . See also Section 10 (a) of the
487926-59-vol 121-62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivocal waiver where, as here, the grievance provisions make no
mention of such a waiver . 14 We therefore find, contrary to the Trial
Examiner, that the existence of the grievance procedure in the con-
tract constitutes no basis for dismissing the complaint.
In view of the foregoing, we find, contrary to the Trial Examiner,
that the Respondent refused to bargain in violation of Section 8 (a)
(5) of the Act by unilaterally , and without notice to the certified
Union , increasing workloads and granting a general wage increase
therefor ; and thereby also violated Section 8 (a) (1) of the Act.15
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in the Inter-
mediate Report, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY,
Having found that the Respondent has engaged in certain unfair
labor, practices, we, shall order that it cease an& desist, therefrom, and
that it take certain affirmative action designed to effectuate the policies
of the Act.
It has been found, as set forth in the Intermediate Report, that the
Union represented a majority of the employees in the appropriate
unit; and that the Respondent refused to bargain collectively with it.
Accordingly, we shall order that the Respondent, upon request, bar-
gain with the Union as the exclusive representative of the employees in
the appropriate unit is
Act, which states that the Board 's power to prevent unfair labor practices "shall not be
affected by any other means of adjustment or prevention that has been or may be
established by agreement , law, or otherwise."
14 Hekman Furniture Company, supra.
'5 It is also undisputed that the Respondent did not comply with the provisions of
Section 8 ( d) of the Act when it took the action in issue. However, in view of our
finding that the Respondent violated Section 8 ( a) (5) without regard to the provisions
of Section 8 (d), we find it unnecessary to pass upon the question as to whether the
Respondent also violated Section 8 ( a) (5) by its failure to comply with the provisions
of Section 8 (d).
16 After Respondent had already taken its unlawful unilateral action it stated a will-
ingness to discuss the matter when the Union came to see Respondent about such action
However, in similar circumstances of a subsequent belated attempt "to abide by the
principles of collective bargaining following [ an] earlier rejection of those principles,"
the Board has held that the subsequent action does not cure the earlier violation, and
that an order is still necessary to remedy the earlier unfair labor practices , "for to hold
otherwise would defeat the Board 's power to guard against possible future recurrence of
the unlawful acts " See McCarthy-Bernhardt Buick, Inc., 103 NLRB 1475, 1479, 1480
See also White's Uvalde Mines , 117 NLRB 1128 , 1130. Cf. Nocona Boot Company, 116
NLRB 1860, 1875, where the employer not only expressed a later willingness to negotiate
but also immediately rescinded its unilateral action when it was questioned.
BEACON PIECE DYEING AND FINISHING CO., INC . 963
In cases of, this type, the Board has in the past also ordered the
employer to revoke the unilateral action and revert to the conditions
existing prior to the unilateral action, thereby restoring the status quo
prior to bargaining with the union.17 The reason for such an order is,
of course, that a failure to restore the status quo allows the employer
to retain the fruits of its unfair labor practices and gives the employer
a possible advantage at the bargaining table. In a more recent case,
however, the Board did not enter such a restoration order, adopting
the Trial Examiner's rationale that "An abrupt return from the
present incentive wage scale . . . to [the] straight hourly wage rates
of almost a year ago would be likely to cause considerable confusion
and possibly might not be even to the advantage or satisfaction of the
employees whose rights have been found to have been violated...." 11
,In the instant case, the increased workload and the wage increase
therefor have been in effect for almost 11/2 years and here too there
is a possibility of confusion and dissatisfaction on the part of the em-
ployees if there is a restoration order. However, in the instant
"mixed" situation of a presumably unfavorable increased workload
on the one hand and a 'presumably favorable higher wage on the
other hand, the Board is not in a position to determine with accuracy
whether or not,there will be confusion and dissatisfaction on the part
of the employees, but the Union, as the representative of the em-
ployees, is in a better position to make such a determination. Accord-
ingly, we shall in this situation enter a restoration order, but we shall
condition it upon the affirmative desire of the affected employees for
such, as expressed through their collective-bargaining representative.
CONCLUSIONS OF LAW
1. The Respondent, Beacon Piece Dyeing and Finishing Co., Inc.,
is engaged in commerce within the meaning of the Act.
2. Local 239, United Textile Workers of America, AFL-CIO, is
a labor organization within the,meaning of Section 2 (5) of the Act.
3. All of the Respondent's production, maintenance, shipping, and
warehouse employees at its Beacon, New York, plant, excluding execu-
tives, office clerical employees, watchmen, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
4. The aforesaid labor organization was on March 26, 1952, and at
all times thereafter has been, the exclusive representative of all em-
ployees in such unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with the aforesaid labor
organization as the exclusive representative of its employees in an
14 See e g, John W Bolton t Sons, Inc., 91 NLRB 989.
1s Superior Cable Corporation, 116 NLRB 1674, 1680.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a), (5)
of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Beacon Piece
Dyeing and Finishing Co., Inc., Beacon, New York, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 239, United Textile
Workers of America, AFL-CIO, as the exclusive representative of
all its employees in the appropriate unit with respect to rates of pay,
wages, hours of employment, and other conditions of employment,
and more particularly with respect to increased workloads and general
wage increases therefor.
(b) Unilaterally, and without notice to Local 239, United Textile
Workers of America, AFL-CIO, increasing workloads and granting
general wage increases therefor.
(c) In any like manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 239, United Textile Work-
ers of America, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all of
such activities, except to the extent that such right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Revoke the increased workload requirement in the wet de-
partment and the general wage increase therefor instituted on August
13, 1956, and revert to the workload requirement and the wage scale
which existed prior thereto, if Local 239, United Textile Workers of
America, AFL-CIO, as the representative of the employees, so
desires.
BEACON PIECE DYEING AND FINISHING CO., INC. 965
(b) Upon request, bargain collectively with Local 239, United Tex-
tile Workers of America, AFL--CIO, as the exclusive representative of
all the employees in the aforesaid unit with respect to such increased
workloads and general wage increases therefor, and, if an understand-
ing is reached, embody such understanding in a signed agreement.
(c) Post in conspicuous places at its plant, including all places
where notices to employees are customarily posted, copies of the
notice attached hereto marked "Appendix." 11 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall
after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof, and maintained by it for at
least sixty (60) consecutive days thereafter. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, as to what steps the
Respondent has taken to comply herewith.
MEMBER BEAN, dissenting :
I cannot agree with the finding in this case that the Respondent
failed in its statutory duty to bargain with the Union. The Trial
Examiner has found-and I see no reason to reverse his findings-that
in the bargaining conferences for each successive contract the Union,
proposed to limit the. number of jigs and dye boxes to be operated by
any one operator; that the Respondent consistently opposed such
proposals; and that as a result of bargaining upon this subject the
Union dropped its proposals for workload limitations in exchange for
concessions by the Respondent on other union demands. My col-
leagues of the majority would reverse the Trial Examiner's finding
that bargaining on the Union's workload proposal took place during
the, course of negotiations for the current contract, and would rely
for this reversal upon a mere fragment of the testimony of Adler, the
Respondent's president, which the Trial Examiner has not mentioned
but which he has obviously evaluated and found to be of no especial
significance. That the Trial Examiner's appraisal of the record is
the correct one becomes clear upon a fuller examination of this por-
tion of Adler's testimony, which was as follows :
Q. Now, in 1955-in the latter part of 1955, I understand that
negotiations were entered into for entering into this present con-
tract in evidence as charging party's Exhibit 3; is that correct?
A. You mean in the last contract?
39 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. That's correct.
A. That's right. There were demands at that time for work-,
loads and the statement that I made to the committee and also to
the union officials was that it would be impossible to,discuss.any-
thing about workloads because of many factors. There were
competitors in the City of Beacon that they had negotiated con-
tracts with and those competitors of mine, also in the same line
of business having the same type of equipment that we have, and
they have signed with them without workloads.
I said "Before we go into any negotiations of any kind, I won't
discuss anything about workloads."
Q. Did you reject-I will withdraw that.
A. I did make the statement that if we would eliminate the
workload conditions or the workload demands, I would concede
to some of the other demands that they were asking for.
Q. What discussions do you recall in the bargaining sessions
immediately prior to the last contract concerning the workloads?'
* * * * * * *
A. Well, there were demands presented to the management and
I happened to be present at most of the meetings, but on one
occasion I had one of my partners there. But at most all of the
sessions I negotiated with the union. There were demands pre-
sented to me, and there were quite a number of demands given to
me by the union. Some of the demands were workloads, the
raising of pay, holidays, paying men for wet clothes in certain
departments, insurance, and a number of other items that I can't
think of.
Q. Did you have differences on these items?
A. We had differences on all items.
Q. Did you discuss and negotiate in these sessions on these
items?
A. We discussed and negotiated each and every demand.
Q. Tell me what was finally decided with relation to work-
loads? What was finally decided with relation to this contract?
A. In relation to this contract, we were discussing and nego-
tiating each and every demand. The demand of workload came
up on this particular negotiation, and I discussed it, negotiated
on that demand, and I conceded, or I gave them some of the other
demands in order for the workload to be excluded from the con-
tract. We were negotiating for hours and we came to a conclu-
sion satisfactory to both management and the union.
* * * * * * *
Q. Did the union agree not to put in a clause concerning work-
loads in this present agreement?
BEACON PIECE DYEING AND FINISHING CO., INC. 967
A. They agreed, not only in this present one, but throughout
all negotiations that all contracts haven't got it.
Q. I am talking about this specific one, these negotiations.
A. This specific one, definitely.
Q. Did management agree for that exclusion to give the union
various clauses that they were negotiating on?
A. Yes, we conceded on some of the clauses for the, simple
reason that they threw out the workload clause from their
demands.
Although the foregoing is the only- point in Adler's testimony at
which the specific language quoted by the majority appears, Adler
was questioned a number of times concerning this matter and on each
such occasion he made it clear that, not only in negotiations for the
preceding contracts but specifically in the bargaining sessions which
preceded the current agreement, bargaining over the matter of work-
loads took place and that as a result thereof the Union acceded to
the Respondent's position that the parties' contract should contain
no limitation of workloads because the Respondent wished to be free
to meet competition from the other plants in the area, which were not
restricted by workload limitations.20 In view of all the foregoing,
and especially Adler's accompanying statement of reasons as to why
he believed it was "impossible to discuss" workloads, together with
his comment immediately following the quotation relied on by the
majority that :
I did make the statement that if we would eliminate the workload
conditions or the workload demands, I would concede to some
of the other demands they were asking for,
it becomes apparent that the fragment of testimony upon which the
majority relies does not represent a refusal to bargain concerning
20 Thus, for example, Adler testified as an adverse witness called by the General
Counsel at the opening of the hearing, in part as follows.
Q. Did any proposals that the company made to the union relate to increased
workloads?
A You mean the management?
Q. Yes, that management made to the union.
A. No, the management didn't make any, but the union did make some
Q. Can you tell us what the proposal was that the union made regarding workload'?
A. The proposal at that time was that they discussed a similar contract that they
had in the metropolitan area and I never went for any workloads in our plant because
it has been a custom in the industry not to have workloads in our district.
Q You mean it isn't a custom to incorporate workloads in your contracts in your
district. Is that what you mean?
A. That's right. In other words, there were other plants in that district that
have no workloads ; therefore, we didn't wish to have any workloads in our contract.
s s s * s s s
Q. Did you or did you not discuss with the union the fact of whether the company
wished to have anything regarding the workloads in the contract?
A. I think I answered the question before. I stated that the union wanted a
workload and we didn't. I mean we specifically stated that we didn't want any
workloads in our plant because of the fact that the neighborhood concerns had no
workloads.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workloads, but in fact consisted of nothing more than an inartful
method of expression by the Respondent's president, occurring in the
course of discussion in which bargaining concerning the issue of work-
loads indeed was taking place
In short, a careful examination of the record convinces me that the
Trial Examiner has overlooked no part of it, and as his resolutions
of evidence, findings, and conclusions are not contrary to the record
but in accord therewith, I would affirm them Thus this case can only
be viewed in the posture of one in which the Union has agreed, for
considerations received in bargaining, to the Respondent's position
that in order to maintain a competitive position in the industry it
must be free to exercise its discretion with respect to workloads, or,
as the Board has characterized a similar situation,21 the Union has
acceded to the Respondent's "management prerogative" position on
this subject matter
My colleagues of the majority nevertheless assert that, even upon
this view of the record, no precedent exists where the Board has found
a waiver of a bargaining right simply because a union has abandoned
a bargaining demand in return for concessions on other matters In
response to this assertion I am impelled to call attention to the recent
unanimous decision of the Board in the case of Speadel Corporation 12
which, whatever may have formerly been the status of Board law,
clearly invalidates the majority's statement as an expression of present
Board doctrine
In Speulel, the employer over a period of years had insisted on a
position that control over one of the conditions of employment, the
payment of an annual Easter bonus, should remain within its discre-
tion or, as the Board's decision characterized it, a matter of "manage-
ment prerogative " In conformity with this position the employer
announced, each time the bonus was paid, that the payment of the
bonus for that year was not to be taken as establishing a precedent.
However, at the time of negotiating the current contract, the union
came to the bargaining table with a contractual proposal referred to
as a "Maintenance of Privileges" clause, which the employer justi-
fiably interpreted as requiring it to continue the bonus payments The
employer rejected this proposal for the express reason that it did not
wish to be bound by a contractual obligation to pay the bonuses, and
the union thereupon abandoned the proposal and subsequently exe-
cuted a contract which did not contain this desired provision Upon
these facts, the Board rejected the Trial Examiner's finding that the
union had not waived or "bargained away" its interest in the matter
of bonuses but concluded instead that by its complete silence in the
face of the Respondent's bargaining position the union had in fact
21 See Speeded Corporation, discussed wfra
0120 NLRB 733
BEACON PIECE DYEING AND FINISHING CO., INC. 969
acquiesced in that position and that thereby a clear understanding
had been reached that the subject of bonuses would remain a "man-
agement prerogative." Then, relying upon the decisions of the Eighth
and Ninth Circuits in the Nash-Finch and Intermountain Equipment
cases 23 and the Board's own decisions in International News and
Avco,24 the Board found that the union had in fact bargained away
its interest in the matter of bonuses.
To recapitulate briefly the facts in the present case, the record shows
that for a number of years during which the Union had been the bar-
gaining representative in the plant, the Respondent had asserted the
position to the Union and its representatives that, in order to compete
with other similar industries in the area with whom the Union had not
entered into any agreements for workload limitations, it was necessary
for the Respondent to remain free to assign workloads in such manner
as it might deem to be required. The record establishes that this posi-
tion of the Respondent, which in effect was here an assertion that
workloads'should remain a subject of "management prerogative," was
asserted by the Respondent"repeatedly, both in bargaining sessions for
the parties' several successive contracts and in frequent discussions
outside of formal contract negotiations. In the course of bargaining
for each of the contracts, including specifically the latest contract
which was current at the time of the hearing, the Union brought into
negotiations a proposal for a contractual provision governing work-
loads. The parties discussed the Union's proposal but the Respondent
rejected it because the Respondent was unwilling to be bound by a
workload provision in the contract. It is clear that thus the Respond-
ent in effect continued to assert its management prerogative position.
Eventually, in the course of the give and take of collective bargain-
ing, the Union in each instance abandoned its contractual proposal
and, as the result of concessions on other matters by the Respondent,
agreed to a contract which omitted completely the Union's proposal
for workload limitation.
On these facts, as found by the Trial Examiner and summarized
above, I can only conclude, as the unanimous Board did in the Speidel
case, that there was a clear understanding between the parties that the
subject matter in question would remain a management prerogative,
and that the Union had clearly and effectively waived, or bargained
away, its interest in workload limitations.25 The language of the
=N. L. R B. v. Nash-Finch Company, 211 F. 2d 622 ( C A. 8) ; Intermountain Equip-
ment Company v N. L. R. B., 239 F . 2d 480 (C. A. 9)
sl International News Service Division of The Hearst Corporation , 113 NLRB 1067;
Avco Manufacturing Company, 111 NLRB 729
2 It is true that here, as is often the case, it is possible to point to minor factual
differences between the case under consideration and that which embodies the governing
principle to be applied as precedent . Thus here the Union did not as in Speidel merely
remain silent in the face of the Employer 's continued assertion of a management preroga-
tive position and rejection of the Union 's desired contractual provisions. In this case
the Union actively discussed its desire for contractual workload limitations with the
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Court of Appeals for the Eighth Circuit in the Nashh-Finch case,26
which the Board quoted with approval in Speidlel, is equally ap-
plicable here In part, it is as follows
Where parties to a contract have deliberately and voluntarily
put their engagement in writing in such terms as import a legal
obligation without uncertainty as to the object or extent of such
engagement, it is conclusively presumed that the entire engage-
ment of the parties and the extent and manner of their under-
taking have been reduced to writing
The respondent, we think, may not be convicted of an unfair
labor practice for doing no more and no less for its union em-
ployees than its collective bargaining agreement with them called
for
As the parties in the present case bargained concerning the Union's
proposal to limit workloads and as the result thereof deliberately
omitted any such provision from their contract, I would not find the
Respondent thereafter to have violated Section 8 (a) (5) through a
unilateral workload revision.
Moreover, for reasons similar to those I have set forth above, I
would likewise find no `violation of the Act by the Respondent in
granting a wage increase to those of its employees whose workloads
it had increased I note first of all that as in the case of workloads,
the parties' contracts, including specifically the current one, have
omitted any provision establishing maximum wage rates but have
provided only for starting and minimum wages That this omission
was likewise deliberate is indicated by the uncontradicted testimony
of the Respondent's President Adler which, as found by the Trial
Examiner, shows that at a bargaining meeting Adler specifically in-
quired whether the company could pay increases above the minimum
rates and Ager, the union representative, replied that the Respondent
could pay whatever it chose to pay above the minimum In addition
it is undisputed that the Respondent had in fact in the past used the
authority thus vouchsafed it to make certain changes in wages The
fact that such changes were unopposed by the Union, even though they
may have been on an individual or merit basis, is further persuasive
evidence that the omission from each of the parties' contracts of any
Respondent , both in informal discussions outside of contract negotiations and in the
meetings for the negotiation of each successive contract This I can only regard as a
distinction without a difference , and a fortiori to require a similar conclusion in the
present case For if the Board found the union's mere silence in Speidel to evidence an
understanding that a subject of bargaining should remain a management prerogative, is it
not even more clearly required to recognize the fact of such an understanding where, as
in the present case, the record establishes that similar agreement was reached through
an exchange of concessions in collective bargaining'
26 N L R R v Nash Finch, supra
BEACON PIECE DYEING AND FINISHING CO., INC. 971
provision for maximum wages represented an understanding by the
parties that such maximums should remain within the field of man-
agement's discretion. Indeed it would seem only natural that the
Respondent, having secured a reservation of the regulation of work-
loads as a matter of management prerogative, should also retain a
similar contractual reservation of the right to adjust wage scales as
might be required by workload changes. As I am satisfied that the
parties had agreed that maximum wage rates, correlatively with
maximum workloads, should remain a subject of management preroga-
tive, I would dismiss the complaint in its entirety.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National .Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT' refuse to bargain collectively with Local 239,
United Textile Workers of America, AFL-CIO, as the exclusive
representative of all our employees in the appropriate unit with
respect to rates of pay, wages, hours of employment, and other
conditions of employment, and more particularly with respect
to increased workloads and general wage increases therefor.
WE WILL NOT unilaterally, and without notice to Local 239,
United Textile Workers of America, AFL-CIO, increase work-
loads and grant general wage increases therefor.
WE WILL NOT 111 any like manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist Local 239,
United Textile Workers of America, AFL-CIO; or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization, as authorized in
Section 8 (a) (3) of the National Labor Relations Act.
WE WILL revoke the increased workload requirement in the wet
depa.^tment and the general wage increase therefor instituted on
August 13, 1956, and revert to, the workload requirement and
the wage scale which existed prior thereto, if Local 239, United
Textile Workers of America, AFL-CIO, as the representative
of the employees, so desires.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain collectively with Local 239,.
United Textile Workers of America, AFL-CIO, as the exclusive
representative of all employees in the following bargaining unit,,
with respect to such increased workloads and general wage in-
creases therefor, and, if an understanding is reached, embody such
understanding in a signed agreement The bargaining unit is
All our production, maintenance, shipping, and,warehouse
employees, excluding executives, office clerical employees,
watchmen, and supervisors as defined in the Act
BEACON PIECE DYEING AND FINIsfaING Co, INC,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge having been filed on September 24, 1956, by Local 239, United
Textile Workers of America, AFL-CIO, herein called the Union, a complaint and
notice of hearing having been issued and served by the General Counsel, and an
answer having been filed by Beacon Piece Dyeing and Finishing Co, Inc, herein
called the Respondent, the hearing involving allegations of unfair labor practices in
violation of Section 8 (a) (1) and ( 5) and Section 2 (6) and (7) of the Labor
Management Relations Act, 1947, herein called the Act, by the Respondent, was
held before W Gerard Ryan, the duly designated Trial Examiner
With respect to the unfair labor practices , the complaint alleged that the
Respondent, in violation of Section 8 (a) (5) and (1) of the Act, modified a
collective-bargaining agreement with the Union in that on or about August 13,
1956, the Respondent unilaterally changed then existing wage rates , workloads, and
other terms and conditions of employment without prior notice to the Union, and
thereafter has refused and continues to refuse to bargain concerning said unilateral
changes with the Union , although requested to do so by the Union , and by failing
to comply with the provisions of Section 8 (d) (1), (2), (3), and (4) of the Act
The answer denied the commission of any unfair labor practices
At the hearing full opportunity to be heard, to examine and cross-examine wit-
nesses, to introduce evidence pertinent to the issues , to argue orally upon the record,
and to file briefs , proposed findings, and conclusions was afforded all parties At
the end of General Counsel 's case-in-chief, the Respondent moved to dismiss the
complaint on the ground that the General Counsel had failed to establish a prima
facie case and also at the end of the case moved for dismissal on the entire record
Those motions are disposed of in accordance with the findings and conclusions herein
contained An unopposed motion by the General Counsel to conform the pleadings
to the proof with respect to minor matters only was granted The General Counsel
and the Respondent participated in, oral argument The Respondent filed a brief
Upon the entire record in the case, and from my observation of the witnesses, I
make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted , and I find that the Respondent is a
New York corporation with its principal office and place of business in the city of
Beacon, State of New York, where, and at various other places in the State of
New York, it is now and has been continuously engaged in the manufacture, sale,
processing , and distribution of textiles , that during the past year, in the course
and conduct of its business operations , the Respondent caused to be manufactured,
sold, processed, and distributed at its places of business in the State of New York,
BEACON PIECE DYEING AND FINISHING CO., INC. 973
products valued in excess of $500,000, of which products valued in excess of
$500,000 were shipped from its said places of business in interstate commerce
directly to States of the United States other than the State of New York; and that
at all times material herein, the Respondent is and has been engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 239, United Textile Workers of America, AFL-CIO, is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleged, the answer admitted, and I find that: All production, main-
tenance, shipping , and warehouse employees of the Respondent employed at its
Beacon, New York, plant, exclusive of executives, office clerical employees, watch-
men, and all supervisors as defined in Section 2 (11) of the Act , constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act; on or about March 18, 1952, a majority of the employees of the
Respondent in the foregoing described unit, by a secret election conducted under
the supervision of the Regional Director for the Second Region of the National
Labor Relations Board, designated or selected United Textile Workers of America,
AFL, as their representative for the purposes of collective bargaining with the
Respondent, and on or about March 26, 1952, said Regional Director certified
United Textile Workers of America, AFL, as the exclusive bargaining representa-
tive of the employees in said unit; Local 239, on behalf of United Textile Workers of
America, AFL, was thereafter designated to act as representative of the employees
in said unit for the purposes of collective bargaining with the Respondent, and at
all times material herein , Local 239 has been the representative for the purposes of
collective bargaining of a majority of the employees in the above-described unit, and,
by virtue of Section 9 (a) of the Act, has been and is now the exclusive representa-
tive of all the employees in said unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other conditions of em-
ployment , and has been recognized by the Respondent to be such representative for
such purposes.
The complaint alleged and the answer denied that the Respondent without com-
plying with the provisions of Section 8 (d) (1), (2), (3), and (4) of the Act,
violated Section 8 (a) (5) and (1) of the Act in that it modified the collective-
bargaining agreement on or about August, 13, 1956 , by unilaterally changing then
existing wage rates , workloads , and other terms and conditions of employment of
the employees in the above-described unit, without prior notice to the Union; and
thereafter , by refusing and continuing to refuse to bargain concerning said uni-
lateral changes with the Union, although requested to do so.
The Respondent is a service company which dyes materials brought to its plant
by customers who have purchased materials from the manufacturers, and the ma-
terial varies with respect to size, weight, quality, and quantity. Some materials
are more hazardous to dye than others, and some are easier to dye than others.
Some colors take longer to dye, e. g., white is easier to dye than black as black
may take 8 hours on a jig. The capacity of the jigs is from 80 to 2,500 yards; and
lesser yardage usually takes less time than greater yardage. Navy blue takes
longest to dye, from 8 to 16 hours, depending on the yardage to be run. The com-
pany handles materials valued from 20 cents to $2 per yard.
The parties have had collective-bargaining agreements since 1952, and their
relationship has been harmonious and satisfactory throughout the years. The cur-
rent contract was effective January 1, 1956, and continues in effect until December
31, 1958.
At the negotiation sessions for the first contract in 1952, and at all bargaining
sessions thereafter for each successive contract, the Union proposed limiting the
number of machines (jigs and dye boxes) to be operated by one operator Such
proposals were opposed by the Respondent and after discussion the Union dropped
the workload proposal, the Respondent conceded on other union demands, and con-
tracts were arrived at. In making these findings, I have considered the conflicting
testimony of Samuel Adler, the president of the Respondent, and Harold W. Ager,
the representative of the Union. Ager testified that the workload proposal was
discussed only in the negotiations that preceded the 1952 contract . He testified
that although it was discussed many times outside of contract negotiations through-
out the years , since then it has never again been discussed in bargaining sessions.
My findings are based on the credited testimony of Adler . It is incredible to me
that workloads were such a frequent topic of discussions between the parties through-
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out each contract year but when the times came to negotiate contracts the Union
never mentioned it
The current contract, like the preceding contracts, contains provisions establish-
ing minimum and starting hourly rates The contract itself does not refer specifi-
cally to wage rates above the minimum and starting rates but it is clear from the.
testimony of both Adler and Ager that the Respondent increased wages above the
minimum rates several times throughout the years since 1952, without objection from
the Union Adler testified without contradiction that at a negotiation session he
specifically inquired whether the company could pay increases above the minimum
rates and was informed by Ager that it could pay whatever it chose to pay above
the minimum, Ager informing Adler at the time that the Union was not going to
stop him from giving away his money
The parties at the first negotiation session in 1952 agreed upon a grievance pro-
cedure which has been contained in all contracts since, including the current con-
tract During the years, the contracts have been administered on the basis of the
grievance procedure
The grievance procedure insofar as pertinent provides
5 1 Should any employee or any departmental shop steward have any griev-
ance with respect to any matter relating to this agreement or any matter not
specifically referred to by this agreement but germane to the subject matter
hereof, the same shall be discussed by the departmental shop steward with
the foreman of said department If the same cannot be adjusted by said
procedure, it shall be referred by the departmental shop steward to the shop
chairman, or by the department foreman to the EMPLOYER'S manager, and
the procedure described in paragraph 5 2 hereof shall be followed
5 2 Should the shop chairman assert any grievance concerning the matter,
such as described in paragraph 5 1 hereof, or should any grievance which
originated as described in paragraph 5 1 hereof be referred as therein provided
either to the shop chairman or to management, it shall be the duty of said
management or said shop chairman to attempt by conference to reach an agree-
ment concerning such grievance In the event of their inability to do so,
said grievance shall be referred to the officers of the UNION or to such princi-
pal spokesman of management as may be designated by management, and
processed as described in paragraph 5 3 hereof
5 3 In the event that the parties shall be unable to reach an agreement
concerning any grievance which may arise as described in paragraph 5 1 or
paragraph 5 2 hereof, the principal spokesman designated by the EMPLOYER
and the officers of the UNION through their designated spokesman, shall
meet within five (5) days after the reference of the dispute to them, as provided
in paragraph 5 2 hereof In the event of their inability to reach an agreement
concerning said grievance, the matter shall be referred to arbitration as de-
scribed in Article VI hereof
This leads us to the events of August 13, 1956, and, thereafter Charles Uhie,
a jig operator, testified that on August 13, upon coming to work on his shift (11
p in to I a m) he was ordered by the foreman to run three jigs Uhle asked his
shop chairman, Cooper, who had ordered the extra jig When Cooper disclaimed
any information about the matter, Cooper, in Uhle's presence, spoke to Ted Prom,
the foreman, who told them the day foreman had told From that the day shift
had run three jigs apiece and the night force was to continue Samuel Adler, the
Respondent's president, testified that on August 13, 1956, the operators were given
an extra jig or two to operate But Adler maintains that the number of machines
to be operated has always fluctuated, during the lifetime of the company, depending
on several variable factors, referred to supra, and the number of machines to be
operated is decided by the foreman A few days later the Respondent granted
wage increases of 16 cents per hour to the operators in the wet department retro-
active to August 13, 1956 On August 17, Harold W Ager, the union representa-
tive, met Marcel Tuponse (who was stipulated to be an officer and supervisor of the
Respondent) by appointment at the plant and inquired from Tuponse what the
score was on this change of workloads and change of rate of pay Ager testified
that Tuponse replied that he had asked each operator to work 3 jigs and told them
an additional amount of money would be put in their pay envelopes, and that retro-
active to August 13, an increase of 16 cents was added to the hourly rate of those
employees in the wet department Tuponse did not testify I therefore find on the
testimony of Uhle, Adler, and Ager that the Respondent did unilaterally and with-
out notice to the Union increase the workload and grant a wage increase to all the
jig operators therefor I do not, however, for the reasons stated in my conclusions,
infra, find these to be unfair labor practices violative of the Act
BEACON PIECE DYEING AND FINISHING CO., INC. .975
Ager and Adler also met on or about August 27, 1956, concerning the workload
and the pay increases. Adler testified that Ager came to see him and he told Ager that
he had a right to sit down with Adler and discuss the grievance; that he would be
willing to sit down and discuss it with Ager, go over it very carefully to see what
could be done and, if no agreement resulted, Ager could take it to arbitration
as provided by the contract. Adler testified that Ager replied that he would see
about it. Ager testified that Adler refused to discuss the matter but asked Ager
why he did not take the matter to arbitration to which Ager replied that he had
not made up his mind and would have to discuss it further with union officials,
the Union, and to study it further to decide whether it was an arbitration case
or a violation of the Act. Ager testified that he then mulled it over with union
officials and the Union and decided it was a case for the Board as a violation of
the contract . Ager testified that he made it a point not to see the company again.
I credit Adler's testimony that he offered to discuss the matter with Ager with
a view to resolving the matter and then, if no agreement was reached, to let it be
arbitrated in accordance with the provisions of the contract. Thus the Re-
spondent expressed its willingness to meet with the Union to try to arrive at a
satisfactory solution and failing that to abide by arbitration. Accordingly, I
find that the Respondent did not, as alleged in the complaint, refuse to bargain
with the Union concerning workload and wages, subsequent to August 13, 1956.
Conclusions
The complaint should be dismissed because the Respondent, without violating
Section 8 (a) (5) and (1) of the Act, was free to increase the workload since
there was no workload clause in the contract and the subject of workload had
been bargained for in all bargaining sessions and then dropped in exchange for
concessions by the Respondent on other proposals by the Union. The Respondent
also was free to grant unilateral wage increases above the minimum and starting
rates in the contract . Since 1952, the Respondent has always throughout the years
granted wage increases above the minimum. The Union admitted that the Re-
spondent always had the right to grant individual wage increases above the mini-
mum. When the question was asked by the Respondent in negotiation sessions
as to whether it could pay wages above the minimum , the Union replied in effect
that the company could pay whatever it liked above the minimum rates. The
General Counsel -contends that such unilateral action is indicative of bad faith, as
it tends to undermine the position of the Union as the statutory bargaining repre-
sentative . I find no merit in that contention . Because at all times material herein
the parties have had in effect a collective -bargaining agreement , the unilateral action
must be appraised in an entirely different context from the usual case where the
Board has found unilateral action to be violative of an employer's obligation to
bargain collectively , which has been in situations where an employer has changed
general conditions of employment during active contract negotiations or while a
majority union was seeking to obtain bargaining rights under the Act. There the
vice in such unilateral action is that it undermines the authority of the bargaining
representative and indicates a lack of good faith in entering into or pursuing
bargaining negotiations. McDonnell Aircraft Corporation, 109 NLRB 930 at 934.
I therefore find that such unilateral action did not modify the terms of the collective-
bargaining agreement between the parties.
Further, the complaint should be dismissed because the parties have provided a
grievance procedure including compulsory arbitration not only for any grievance
with respect to any matter relating to the contract but relating to any matter not
specifically referred to by the contract but germane to the subject matter thereof.
There was no categorical refusal to bargain on the part of the Respondent and, in
my opinion , there is not the slightest evidence of any bad faith on the part of the
Respondent.
Upon - the basis of the foregoing findings of fact and on the entire record in this
proceeding , I make the following:
CONCLUSIONS OF LAW
1: The Respondent , Beacon Piece Dyeing and Finishing Co., Inc., is engaged
in commerce within the meaning of the Act.
2. The Respondent , Beacon Piece Dyeing and Finishing Co., Inc., has not engaged
in any unfair labor practices within the meaning of Section 8 (a) (5) and (1) of
the Act.
[Recommendations omitted from publication.]