Bergen Point Iron Works

National Labor Relations Board - Board Decisions

Sep 29, 1948

79 N.L.R.B. 1073 (N.L.R.B. 1948)

In the Matter of BERGEN POINT IRON WORKS and LOCAL 446, UNITED
ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. O.
Case No. 2-C-6055.-Decided September 29, 1948
DECISION
AND
ORDER
On February 11, 1947, Trial Examiner Arthur Leff 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 copy of the
Intermediate Report attached hereto.2 Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 3 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 adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications and
additions :
1. The Trial Examiner found, and we agree, that the Respondent
refused to bargain collectively with the Union in violation of Section
8 (1) and (5) of the Act. We rely principally on the following con-
duct : (a) the down-grading of certain welders between October 25,
1945, and November 6, 1945, without notice to or consultation with the
Union; (b) the unilateral changes effected in the length of the work-
week on November 8, 1945, and May 14, 1946; (c) the rejection of the
1 The power of the Board to issue a Decision and Order in a case such as this, where the
charging union has not complied with the filing requirements specified in Section 9 (f),
(g), and ( h) of the National Labor Relations Act, as amended , was decided by the Board
in Matter of Marshall and Bruce Company, 75 N. L. R. B. 90.
2 Section 8 ( 1) and ( 5) of the National Labor Relations Act, which the Trial Examiner
found were violated , are continued in Section 8 (a) (1) and ( 5) of the Act, as amended
by the Labor Management Relations Act, 1947.
8 Pursuant to the provisions of Section 3 (b) o fthe Act , the Board has delegated its
powers in connection with this case to a three-man panel consisting of the undersigned
Board Members [ Chairman Herzog and Members Murdock and Gray].
79 N. L. R. B., No. 143.
1073
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's request to discuss these two matters; (d) the refusal to discuss
at the bargaining conference of November 6, 1945, the retroactive
application of the proposed contract; (e) the refusal to bargain after
November 6, 1945, unless the Union first abandoned its claim that
the 1944-1945 contract between the parties was still in effect; and (f)
the Respondent's entire course of conduct in dealing with the Union
on November 6, 1945, and thereafter, as set out in the Intermediate
Report.
As we rely only on events occurring after the termination of the
September 1945 strike and after the employees had returned to work,
we find it unnecessary to pass upon and therefore do not adopt the
Trial Examiner's findings that the Respondent also violated Sec-
tion 8 (5) by refusing to bargain with the Union during the period
of the strike. We therefore do not adopt the Trial Examiner's com-
ments in this connection concerning the effect of the alleged illegality
of the strike and the Union's alleged misconduct in relation thereto.
2. The Trial Examiner found, in accordance with the agreement
of the parties, that all production and maintenance employees of the
Respondent at its Bayonne plant, including guards and watchmen
but exclusive of supervisors, constituted a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b) of
the Act. However, Section 9 (b) (3) of the Labor Management,
Relations Act, 1947, which was enacted after the issuance of the Inter-
mediate Report, provides that the Board shall not decide that any
unit is appropriate for collective bargaining if it includes, together
with other employees, any individual employed as a guard to enforce
against employees and other persons rules to protect the property of
the Employer or the safety of persons on the Employer's premises.
In our original Decision and Direction of Election we excluded guards
and watchmen 4 Accordingly, we reaffirm our earlier holding that
the Respondent's guards and watchmen should be excluded from the
appropriate unit.
THE REMEDY
The Trial Examiner recommended that the Respondent be ordered
to bargain collectively with the Union as the exclusive representative.
of the employees in the appropriate unit. Since the issuance of the'
Intermediate Report, however, the Act has been amended to deny
utilization of the Board's processes directly to aid the bargaining
position of a labor organization which, like the Union herein, has not
complied with the provisions of Section 9 (f) , (g), and (h) of the Act.'!
A of Bergen Point Iron Works, 48 N. L. R. B. 539.
BERGEN POINT IRON WORKS 1075)
Our Order In this respect will,-therefore, be conditioned upon com-
pliance by the Union with the above-cited provisions of the Act:
within 30 days 6 from the date of the order.
ORDER
Upon the entire record in the 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, Bergen Point
Iron Works, Bayonne, New Jersey, and its officers, agents, successors,-
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 446, United Elec-
trical, Radio & Machine Workers of America, C. I. 0., affiliated with
the Congress of Industrial Organizations, if and when said labor
organization shall have complied, within 30 days from the date of
this Order, with Section 9 (f), (g), and (h) of the Act, as amended,
as the exclusive representative of all the production and maintenance
employees at its Bayonne, New Jersey, plant, exclusive of office work-
ers, guards, watchmen, and supervisors, with respect to rates of pay,
wages, hours of employment, and other conditions of employment;
(b) In any manner interfering with the efforts of Local 446, United
Electrical, Radio & Machine Workers of America, C. I. 0., affiliated
with the Congress of Industrial Organizations, to bargain collectively
with it as the exclusive representative of the employees in the aforesaid
appropriate unit, if and when said labor organization has complied,
with the filing requirements of the amended Act, as hereinabove set,
forth.
2. Take the following affirmative action, which the Board finds will'
effectuate the policies of the Act :
(a) Upon request and upon compliance by the Union with the filing
requirements of the Act in the manner set forth above, bargain collec-
tively with Local 446, United Electrical, Radio & Machine Workers of
America, C. I. 0., affiliated with the Congress of Industrial Organiza-
tions, as the exclusive representative of all the production and main-
tenance employees at its Bayonne, New Jersey, plant, excluding office
workers, guards, watchmen, and supervisors, with respect to rates of
pay, wages, hours of employment, and other conditions of employment,
and if an understanding is reached, embody such understanding in a,
signed agreement;
I Matter of Marshall and Bruce Company, footnote 1, supra.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post in its plant at Bayonne, New Jersey, copies of the notice
attached hereto and marked "Appendix A." 6 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 the Respondent immediately upon receipt thereof and be main-
tained by it for at least sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material ;
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegation of the complaint that
the Respondent vilified, disparaged, and expressed disapproval of the,
Union be, and it hereby is, dismissed.
APPENDIX A
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 BARGAIN collectively upon request with LOCAL 446,
UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA,
C. I. O., as the exclusive representative of all employee in the bar-
gaining unit described herein, with respect to wages, rates of pay,
hours of employment and other conditions of employment, and if
an understanding is reached, embody such understanding in a
signed agreement; provided said union complies, within thirty
(30) days from the date of the aforesaid order of the Board, with
.Section 9 (f), (g), and (h) of the National Labor Relations Act,
as amended.
WE WILL NOT in any manner interfere with the efforts of the
above-named Union to bargain with us; provided said Union,,
within thirty (30) days from the date of the aforesaid
Order of the Board, complies with Section 9 (f), (g), and (h) of
the National Labor Relations Act, as amended.
e In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
-shall be inserted , before the words, "A DECISION AND ORDER," the words , "A DECREE
OF THE UNITED 'STATES CIRCUIT COURT OF APPEALS ENFORCING."
BERGEN POINT IRON WORKS 1077
THE BARGAINING UNIT is :
All production and maintenance employees at our Bayonne,
New Jersey, plant, excluding office workers, guards, watchmen,
and supervisors as defined in the Act.
All our employees are free to become or remain members of the
above-named Union or any other labor organization.
BERGEN POINT IRON WORKS
Employer.
By -------------------------=-----
(Representative) (Title)
Dated --------------------
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
Mr. Sidney Reitman, for the Board.
Carpenter, Gilmour & Dwyer, by Mr. Carl S. Kuebler, of Jersey City, N. J., for
the respondent.
Mr. Joseph A. Lipman, of Bayonne, N. J., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge duly filed by Local 446, United Electrical, Radio
& Machine Workers of America, C. I. 0., herein called the Union, the National
Labor Relations Board, herein called the Board, by its Regional Director of
the Second Region (New York City), issued its complaint dated October 30, 1946,
against Bergen Point Iron Works, herein called the respondent, alleging that the.
respondent had engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint accompanied by notice of hearing were duly served upon
the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent : (1) at all times since on or about March 13, 1944, has
refused to bargain collectively with the Union as the exclusive' bargaining
representative of the respondent's employees within an appropriate bargaining
unit; (2) since on or about March 13, 1944, has vilified, disparaged, and ex-
pressed disapproval of the Union; and (3) by such acts has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
The respondent thereafter filed its answer in which it admitted that the
bargaining unit alleged in the complaint constituted a unit appropriate for the
purposes of collective bargaining; admitted that at all times alleged in the
complaint up to August 15, 1946, the Union was the exclusive bargaining repre-
sentative of all employees in said unit ; denied knowledge or information sufficient
to form a belief as to whether the Union on and after August 16, 1946, continued
as the exclusive bargaining representative of the employees in said unit ; denied
that the respondent at,.any time had refused to bargain collectively with the
809095-49-vol. 79-69
1078 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
Union as the exclusive bargaining representative of the employees in the said
unit ; alleged affirmatively that it bargained in good faith with the Union to
and including November 6, 1945, and that subsequent to said date the Union
has refused to bargain in good faith with the respondent; and otherwise denied
the allegations of the complaint'with respect to the unfair labor practices.
Pursuant to notice, a hearing was held from November 18 to December 3, 1946,
at New York City, before the undersigned, Arthur Leff, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent, and the
Union were represented at the hearing by counsel. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing'-on the issues was afforded all parties. At the close of the Board's case, the
undersigned' denied, with leabe to renew at the end of the entire case, a motion
by the respondent to dismiss the complaint for-want of-proof.-- Decision was
reserved on a similar motion made by the respondent at the close of the entire
case. That motion is hereby denied. Near the close of the hearing the under-,
signed granted a motion of counsel for the Board to conform the pleadings toy
the proof as to dates, the spelling of names, and like minor variances. At the
conclusion of the hearing, counsel for the Board and counsel for the respondent
argued orally before the undersigned. Subsequent to the hearing counsel for the
respondent filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following : -
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a New Jersey corporation with its principal office and place
of business at Bayonne, New Jersey. It is engaged in the manufacture, sale,
and distribution of fabricated steel and plate construction and related products.
During the year ending July 1, 1946, the respondent in the course and conduct
of its business operations caused to be purchased, transferred and delivered to,
its Bayonne plant, steel and other materials having a value in excess of $100,000,
of which approximately 90 percent was transported to its Bayonne plant from
States of the United States other than the State of New Jersey. During the same
period, the respondent manufactured at its Bayonne plant products having a
value 'in excess of $100,000, of which approximately 65 percent was transported
from its Bayonne plant to States of the United States other than the State of
New Jersey. The respondent concedes that it is engaged in commerce within
the meaning of the Act.
H. THE ORGANIZATION INVOLVED
Local 446, United Electrical, Radio & Machine Workers of America, affiliated
with the Congress of Industrial Organizations, is a labor organization admitting
to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit; representation by the Union of a majority therein
On April 14, 1943, a majority of the respondent's production and maintenance
employees , at a secret election conducted under the supervision of the Board'
BERGEN POINT IRON WORKS 1079
pursuant to a Decision and Directiontrof Election theretofore issued by the
Board,' designated and selected the Union as their exclusive representative for
the purposes of collective bargaining. On May 20, 1943, the Board certified the
Union as the exclusive bargaining agent for all employees of the respondent
excluding supervisory employees, foremen, office workers, watchmen and guards.
Shortly following the election the respondent and the Union mutually agreed to
include in the appropriate unit the watchmen and guards who had been excluded
therefrom in the Board's certification'
The complaint alleges, the respondent admits, and the undersigned finds that
all production and maintenance employees of the respondent at its Bayonne
plant, including watchmen and guards, but excluding supervisory employees, con-
stitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act. '
The respondent's answer admits that from April 14, 1943, until August 15, 1946,
the Union continued to remain the duly designated majority representative of
the employees in the unit herein found to be appropriate. As to the majority
status of the Union on and after August 16, 1946, however, the respondent in its
answer disclaims knowledge or information sufficient to form a belief. The
respondent bottoms this disclaimer of knowledge, the record shows, solely upon
the ground that the employees in the said appropriate unit went out on strike
on August 16, 1946, and at least up to the time of the hearing had not yet returned
to work. As will hereinafter appear, the August 16, 1946, strike was induced
in substantial part and was thereafter prolonged by reason of the respondent's
unfair labor practices. The strike was still current at the time of the hearing,
the plant was still closed as a result thereof, and none of the striking employees
had been replaced. Moreover, there is nothing in the record to indicate that since
the strike the employees have revoked the designation of the Union as their
bargaining representative., Under the circumstances, it is concluded and found
that the Union now is, and at all times since April 14, 1943, has been, the duly
designated representative for the purpose of collective bargaining of a majority
of the employees in the aforesaid appropriate unit, and that by virtue of
Section 9 (a) of the Act, the Union at all times was and now is, the representative
of all the respondent's employees in such unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment and other
conditions of employment.
B. The refusal to bargain
1. Introduction ; bargaining history prior to the time of the respondent's alleged
refusal to bargain
The respondent operates a jobbing shop in the steel fabricating industry.
During the period hereinafter covered, it employed roughly from 70 to 100
employees. Before the Union was designated bargaining agent, the employees
had been represented for several years by a shop committee, known as Bergen
Point Iron Works Employees Co-operative Association. The respondent and the
committee had an unsigned written agreement, which, while not purporting
to be a complete trade agreement, did define certain terms and conditions of
employment.
2 Matter of Bergen Point Iron Works, 48 N. L . It. B. 539.
2 The watchmen and guards in the respondent ' s employ have never been militarized.
1,080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the Union was certified , the respondent met with it and negotiated
terms and conditions of a comprehensive bargaining agreement for a 1-year
term effective from April 15, 1943. Mutual agreement was reached by the
parties with respect to maintenance of membership ; the check-off of union
dues; seniority rights ( applicable after 6 weeks ' probationary period ) ; premium
pay for work performed on Saturdays , Sundays and holidays : a detailed griev-
ance procedure ( with provisions for a five-man grievance committee to meet
with management regularly once a week without loss of pay between the hours
of 2 and 5 p . m.) ; the submission to arbitration of all unadjusted disputes, with
arbitration costs payable by the respondent ; a no-strike , no-lockout clause, a
clause proscribing discrimination on account of race, color or creed; etc. The
parties also agreed upon an improved vacation plan, but because of the wartime
wage stabilization policies , it was necessary to obtain War Labor Board approval
for this plan. Both parties joined in asking such approval , and when the plan was
later rejected by the Regional War Labor Board, they again joined in an appeal
to the National War Labor Board where the plan was eventually approved.
Only one issue was left unsettled : Job classifications for existing jobs, job rates
and* progression within ranges . That alone was referred to the War Labor
Board as a disputed contract issue.
Henry Such Smith, the respondent ' s president , did not participate in the
1943 negotiations . The respondent was then represented by its treasurer,
Carson , and by two representatives of the Labor Relations Institute , a service
agency engaged by the respondent to assist it in the negotiations . The parties on
both sides of the bargaining table approached the negotiations with an attitude of
cooperation and mutual understanding , and the conferences were conducted and
soon concluded in a spirit of reciprocal good will.
Beginning in the spring of 1943, Smith assumed charge of the respondent's
labor relations , and all contract negotiations since that time have been con-
ducted by him on behal f of the respondent . Counsel for the Board contends
that the appearance of Smith marked a change in the attitude and approach
of the respondent in its dealings with the Union , and that responsibility for the
subsequent deterioration in the relationship between the respondent and the
Union, which finally led to a complete rupture of bargaining , must be laid at the,
feet of Smith. The complaint alleges that from March 13, 1944, forward, the,
respondent has failed to fulfill its bargaining obligations under the Act.
2. The 1944-1945 contract negotiations
On March 13 , 1944, the Union served upon the respondent notice of intention
to terminate the 1943-1944 contract upon its expiration date and to negotiate a
new contract for the succeeding contract year beginning on April 15, 1944. At
a preliminary conference , held on March 27, 1944, Smith stated that while he
had not given the matter much study, he had no thought then of proposing any
changes in the earlier contract . At that time the Union had not yet submitted its
contract proposals to the respondent . These were submitted on April 7, 1944,
accompanied by a request for an early conference . On April 14, 1944, the parties
met and entered into an agreement which extended the terms of the prior contract
until a new agreement was reached or a directive order was made, and which
provided that all benefits under the new agreement would be retroactive to April
15, 1944. At that time , negotiations on the Union proposals were withheld
pending the preparation of counter -proposals which the respondent was to sub-
BERGEN POINT IRON WORKS 1081
mit. The Union during the succeeding weeks repeatedly pressed the respondent
for the submission of its counterproposals. But it was not until after the Union
had enlisted the services of the New Jersey Mediation Board, that the respond-
ent finally, on June 2, 1944, submitted its counterproposals Smith, at the
hearing, attributed the delay in part to illness, in part to production problems
requiring'his attention, and in part to the necessity of preparing an answer to a
petition filed by the Union in a then pending War Labor Board proceeding.
The exchange of contract proposals revealed numerous clauses with respect to
which the parties were in disagreement. The Union in its proposals demanded
a number of added benefits, among them the inclusion of six paid holidays not
worked, top seniority provisions for Union shop committeeman , a wage-reopening
clause contingent upon a change in the Government's Wage Stabilization program,
increased vacation benefits, bulletin board privileges, a new leave of absence
clause, and provision for severance and incentive pay. The respondent's pro-
posals, on the other hand, sought to alter substantially certain clauses to which
the respondent had voluntarily agreed in the prior contract negotiations. Thus,
the respondent proposed the insertion of escape provisions in the maintenance of
membership and check -off clauses , the addition of a "management 's right" clause
which would remove from the grievance procedure job transfers and certain other
employer action, the elimination of Saturday and Sunday as premium pay days,
the extension of the probationary period from 6 weeks to 3 months, the substi-
tution of ability in place of seniority as the prevailing factor in lay-offs and
restoration of force, the modification of the grievance procedure clause so as
to reduce the membership of the Union's grievance committee from five to three
employees and the length of the weekly grievance meetings from 3 to 2 hours,
and the imposition of a requirement that all grievances be initially submitted
and signed by the aggrieved employee personally "with or without the Union
representative."
Following the exchange of the proposals, bargaining conferences were held
on five occasions between June 24 and August 25, 1944, the last time in the
presence of a conciliator from the New Jersey Mediation Board. At these con-
ferences the proposals were discussed, clause by clause, and supporting reasons
were advanced by each side for the position which it took. Extensive testimony
was adduced at the hearing concerning the discussions at these meetings. It
is not thought necessary to summarize such testimony here. Suffice it to say
that it bears mainly upon the merit of the arguments advanced by the parties,
a subject with which this proceeding is not directly concerned. The record
reflects that the respondent throughout the conferences showed no inclination
to make any concession or compromise or to retreat in any material respect
from the position originally taken by it on its own or the Union's proposals. But
the record shows as well that the Union also did not yield in any substantial
respect from its original position on the matters in dispute.
After 2 months of fruitless negotiation, the conferences ended where they
began, in a deadlock, and the disputed issues, about 15 in number, were referred
td the War Labor Board. That agency, on March 19, 1945, issued its interim
directive order in which it recommended the granting of 6 paid holidays, the
inclusion of a top seniority clause, a wage reopening clause, and a leave of
absence clause, and made other recommendations of minor character. Except
as noted, however, the War Labor Board denied in the main the other requests
for contract changes and directed that the past practices be continued, thus
leaving undisturbed prior contract clauses relating to union security, premium
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay, probationary period, seniority, and grievance procedure. The respondent
appealed from the interim directive order on three issues only; the denial of
the respondent's demand for an annual escape provision in the Union security
clause, the granting of the Union's demand for the appointment by the War
Labor Board of an arbitrator if either party failed to do so, and the direction
that the contract be binding upon the respondent's successors and assigns. The
respondent's appeal was ultimately denied.' While the appeal was pending,
the parties met-to negotiate a contract in accordance with the provisions of the
interim directive order, leaving open those on appeal. On May '8, 1945, the
parties executed a retroactive contract covering the period from April 15, 1944,
to April 15, 1945.
3. The negotiations for the 1945-1946 contract
On March 12, 1945 (before the 1944-1945 contract was executed), the Union noti-
fied the respondent that it desired to,commence negotiations for a new contract
for the next annual period beginning.April 15, 1945. But it was not until some 5
month slater. that actual negotiations began, negotiations which never were to be
completed., The early delay is explained by the respondent's understandable de-
sire, to which the Union does not appear to have taken exception, that the 1944-
1945 contract be completed before the parties embarked upon new negotiations.
On. May 22, 1945, about 2 weeks after the 1944-1945 contract.was signed, the
Union, which in the meantime had submitted its proposals for a 1945-1946 con-
tract, renewed its demand for the -negotiation of the new contract. The re-
spondent replied promptly enough, fixing the afternoon of June 4 as a first con-
ference date. But at the same time it advised the Union that it would no longer
pay, as it had in the past, for time spent by employee negotiators at the bargain-
ing conferences. The Union took strong exception to the respondent's discontinu-
ance of the practice of paying for negotiating time. While agreeing to meet as
proposed by the respondent, it served notice that it would reserve the issue of
payment as a point in dispute to be negotiated at the bargaining conferences.
When the parties met on June 4, the respondent had not yet prepared its writ-
ten counterproposals. No discussion on the contract issues took place that day.
Smith, on behalf of the respondent, stated that he was tied up with production
problems and other matters, but promised to have his counterproposals ready as
promptly as possible. At that meeting, however, the parties did agree upon an
interim extension agreement, which because of the importance which it was
later to assume, is here set out at length :
It is hereby understood and agreed by and between [the parties] that all
the terms and conditions of the existing contract between the above named
parties, remain in full force and effect beyond the expiration date and until
an agreement is reached or a new directive order is issued. If and when
said agreement is reached or a directive order is issued, any and all benefits
due thereunder shall be retroactive to the date of the expiration of the existing
contract between the parties, namely, April 15, 1945.
During the next 7 weeks, the Union, protesting the delay, unsuccessfully
pressed by mail and telephone its request for an early negotiating meeting. The
Union's written requests in that period were left unanswered and its telephonic
2 The final directive order denying the appeal was issued about August 8, 1945.
BERGEN POINT IRON WORKS 1083
communications, each time received by a subordinate of Smith, were met simply
with the response that Smith, who alone was authorized to handle labor relations,
was unavailable, but that the_ message would be transmitted to him. It was not
until July 26, 1945, after the Union had' written that it would tolerate,no more
.delays and would seek the assistance of Government agencies, that the respondent
finally submitted its counterproposals. In one of its letters the Union had made
the request that, in view of the respondent's reluctance to pay Union committee-
men for negotiating. time, the bargaining conference be held after working hours,
The respondent, in its letter transmitting its counterproposals, expressed a will-
ingness to comply with this request, but only on its own terms : It would meet
after working hours only if the Union first nullified in writing its prior demand
to have payment for negotiating time considered as an issue in dispute at the
negotiating conference. The Union declined to surrender its demand by accept-
ing this condition. At the insistence of the respondent, all subsequent negotiating
meetings were held during working hours, and the employees on the Union's
committee were not reimbursed by the respondent for time lost. ,
Bargaining meetings to consider the Union's proposals and the respondent's
counterproposals were held on August 10, 13 and 14 (V-J Day), and on Septem;
ber 20, 1945.
The Union's proposals contained numerous new demands. Some were pro-
cedural in character,' others were designed further to define the bargaining
obligations of the parties,` but most of them sought additional benefits, many of
substantial character, relating to the wages, hours, and working conditions of
the employees a The respondent's counterproposals, on the other hand, offered
an agreement identical to the prior contract, save for the following revisions :
(a) The insertion of an escape provision in the maintenance of membership
clause; (b) the amendment of the grievance procedure clause so as to limit
the Union grievance committee to three persons, reduce the weekly grievance
meetings (on time paid by the respondent) from 3 to 2 hours, and require that
all grievances be personally presented and signed by the aggrieved employee
"with or without the Union representative"; (c) the elimination of the 2 paid
half-holidays before Christmas and New Years Day;' (d) the amendment of
the arbitration clause so as to require that the costs of arbitration, theretofore
borne by the respondent alone, now be shared equally by both parties.
At the conferences held in August, prior to the conclusion of the war, these
proposals and counterproposals were discussed by the parties, term by term.
In the course of the August conferences, which apparently were conducted without
rancor, the Union indicated a willingness not to press certain of its demands.
Although on most points the respondent refused to swerve from its original
position and failed to suggest or agree to compromises, it did agree to some of
4E. g., provisions requiring the respondent periodically to supply seniority lists and to
post vacant positions
5 Thus, the Union asked that classifications and the establishment of new classifications
during the life of the contract be made subject to negotiation and the grievance and arbitra-
tion procedures . The Union urged this clause because the respondent had previously taken
the position that it had a right unilaterally to establish rates of pay on new jobs. '
6In addition to a specific demand for an increase in the wage schedule of employees
classified as fitters and operators , the proposals included a number of demands for benefits
of general application , such as call-in pay, shift differentials , paid lunch period , severance
pay, a guaranteed weekly wage , sick leave, etc.
4 These half holidays had been a traditional practice in the plant even before the advent
of the Union . The respondent , however, proposed to retain the 6 paid holidays provided
for in the 1944-1945 contract.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's demands, albeit minor ones ; is e., the demand for up-to-date seniority
lists, the demand that injured employees receive pay to the end of the work-day
and the demand that an additional day's vacation be allowed where paid holi-
days fall in vacation periods 8 The respondent also offered at one point to com-
promise its demand with reference to grievance meetings by continuing the
prior practice of 3-hour weekly meetings on company time if the Union in turn
would agree to reduce from five to three the number of employees on the grievance
committee. With the adjournment of the last meeting in August, held on V-J
Day, some slight progress had been made toward narrowing the area of differ-
ence, but the parties were still far apart from agreement.
The September 20 conference, although a continuation of the August confer-
ences, has been reserved for special treatment not only because it marked the
first post-war meeting between the parties, but for other reasons which will be-
come apparent below. The respondent came to this meeting with several type-
written documents which it had prepared in advance. One of these contained a
draft of the three new contract clauses to which it had agreed at the earlier con-
ferences. The others contained drafts of amendments to the respondent's
counterproposals, bringing up demands not previously asserted by the respondent
in the negotiations for the 1945-1946 contract.
The amendments related to proposed changes in the grievance and transfer
procedure. As to the grievance procedure, the respondent proposed two sub-
stantial changes. In its original proposal, the respondent had sought to reduce
the size of the Union's grievance committee from five to three employees and the
meeting hours from 3 to 2 a week, and during the course of the August conferences
had suggested by way of compromise a three-man committee to meet 3 hours a
week. It now reversed its direction and widened the area of difference by pro-
posing a three-man committee to meet on company time only 3 hours a month
instead of 3 hours a week. In all earlier negotiations the respondent had accepted
the principle of arbitration as a final means of settlement for all unresolved griev-
ances. It now proposed to eliminate entirely the arbitration procedure. With
respect to job transfers of employees, the respondent proposed that the contract
grant it full discretion in transferring employees between jobs, including differ-
ently rated jobs, thus eliminating all transfers from the seniority and grievances
procedures of the contract.
These amendments, submitted at or near the opening of the meeting,' and
justified by the respondent principally upon the ground that it was now entering
upon peacetime operations, met with vigorous opposition from the Union, and
injected considerable enmity in the negotiations from that point forward. The
bitterness in feeling was heightened when, in connection with a discussion of
wages for fitters and punch press operators, the respondent indicated that that
was a poor time to ask for wage increases since it was contemplating a down-
ward classification of welders. In the course of the discussion, the Union indi-
8 The vacation-holiday provision, although not contained in the earlier contract, repre-
sented merely a restatement of a practice which had been established the preceding year.
8 There is a conflict of testimony as to the time when the written amendments were sub-
mitted. Cameron and Clark, witnesses for the Board, testified that they were submitted
at the beginning of the meeting. Smith testified, on the other hand, that they were not
submitted until after the Union had orally submitted certain post-war amendments of its
own. Cameron's over-all testimony impressed the undersigned as essentially reliable.
Smith, at one point of his testimony, indicated uncertainty as to the order of submission.
For these reasons and because the respondent's amendments were prepared in advance of
the meeting, the undersigned credits Cameron's corroborated testimony.
BERGEN POINT IRON WORKS 1085
cated that if post-war changes were to be made at that time , it had certain changes
of its own to propose , and mentioned a union shop and double pay for holidays.
Nevertheless , near the conclusion of the meeting, the Union expressed a willing-
ness to drop all its demands , except its wage demand for fitters and punch press
operators and its demand for an improved veterans ' rights clause , and suggested
that the parties negotiate an agreement substantially similar to their prior agree-
ment. But the respondent refused to yield on any of its own demands for
revision.
The September 20 meeting terminated with a statement by the Union repre-
sentatives that they would report the results of the negotiations to the Union
membership and advise the respondent as to any decision reached . Although the
respondent expressed a willingness to continue negotiations , no new meeting date
was set at that time.
On September 22, 1945, the Union forwarded to the respondent a letter stating
that inasmuch as the parties had been unable to conclude an agreement "after
nearly 6 months of negotiations ," and since "the end of the war had brought
about many changes in existing conditions," it now proposed to include in its
contract demands a union shop , double pay for holidays worked, and a general
25 cents an hour wage increase . The Union 's letter asked that negotiations
proceed as promptly as possible and added that "the Union will expect a formal
reply from the Company on all its demands on or before Friday , September 28,
1945."
No reply to this letter was ever sent to the Union. On September 25, before
the deadline fixed in the Union 's letter for a reply had expired , the respondent's
employees went out on strike.
4. The respondent 's refusal to negotiate during the strike of September 25 to
October 24, 1945
There is some dispute in the record as to the immediate cause of the strike.
According to the Union , the respondent had begun preparation for shipping un-
finished work out of the plant and had taken other steps which the employees
interpreted as efforts on the part of the respondent to put itself in a position
to move the plant . The testimony of William Massa, the respondent 's secretary
and chief engineer , which was based on the respondent 's shipping records and
which is credited , shows, on the other hand , that there were no unusual shipments
from the plant immediately preceding the walk-out. In any event it is not dis-
puted that immediately before the walk -out occurred , a union committee called
upon Massa and Plant Superintendent Frohlin, expressed concern about ship-
ments from the plant and reports of prospective wage cuts , and asked for reas-
surance on that score. The committee was advised by both Massa and Frohlin
that President Smith was in sole charge of labor relations and that the em-
ployees would have to communicate with him.
Smith was not in the plant when the walk-out occurred, and did not arrive
until later that morning. He was met outside the plant by Salaway and by
Clifton Cameron, the Union's business agent. In response to Cameron 's request
for a meeting to negotiate the return of the employees to work, Smith did not
reply beyond saying, " there is nothing to be said until the men return to work."
Sometime later that morning , Salaway, at Cameron's suggestion entered the
plant, called on Smith , and again asked him to meet with the Union to discuss
the question of unfinished shipments , wage cuts , and otherwise to negotiate with
the Union with a view to having the men return to work . Again Smith's only
1086 DECISIONS OF NATIONAL' LABOR, RELATIONS BOARD
answer was that there was nothing to,be said until the men returned to work.
The Union succeeded in contacting Smith only once again during the entire
course of the strike. That occurred about a day or so following its commence-
ment, when Cameron accosted Smith outside the plant and once again inquired
about the possibility of a meeting. And once again Smith curtly replied, "I+
have nothing to say."
From September 27, 1945, when the Union engaged in mass picketing of the
respondent's plant,J° until after the conclusion of the strike, Smith made l no
appearance at the plant, and his whereabouts remained unknown to -the Uniori "
Throughout the intervening month-long period, the Union engaged in persistent
efforts to arrange a -meeting with the respondent. Cameron and Salaway on at
least 10 different occasions between them made telephone calls to representatives
of the respondent such as Treasurer Garson, Secretary Massa, Plant Superin-
tendent Frohlin, Labor Co-ordinator Ben Smith and Attorney Kuebler, advised
them that the Union desired a meeting to discuss the return of the men to work
and to continue negotiations, and inquired how they could contact Smith: In,
each instance, the person called disclaimed personal authority to speak in that
capacity for the respondent, and, declined to divulge the whereabouts of Smith.
The Union also asked the Deputy Mayor of'Bayonne to intercede with Smith on:
its behalf. About a week after' the strike, the, Deputy Mayor succeeded in con-
tacting Smith, but was advised that Smith would not meet with the Union until,
the men returned to work.
In its efforts to secure a meeting with the respondent, the Union also resorted
to a campaign of dramatic action and public appeal. A parade to Superintendent,
Frohlin's house was organized by the striking employees who carried placards
appealing to Frohlin to arrange a meeting between the Union and the respondent.
Headquarters were set up by the Union on the'main street of Bayonne where,
through loud-speaking device, appeals were directed to the public to assist the
Union in contacting Smith and in arranging to have him meet and negotiate
with it. Multigraphed postal cards, addressed to Smith in care of his attorney,
which stated that the Union had expressed a willingness to meet with Smith to
settle the dispute and which urged Smith to meet with the Union, were distributed
to the public for signature. Over 200 of them were signed and mailed. Tele-
grams of like content, paid for by sympathetic individuals and business houses,
were similarly forwarded. Petitions urging Smith to meet with the Union were
publicly circulated, and, when signed, were mailed to the respondent. Numerous;
leaflets, publicizing the Union's position on the issues of the strike and urging
public aid in securing a meeting with the missing Smith, were distributed, at,
street corners, bus terminals, railroad ferries and elsewhere. Considerable local
newspaper publicity was given to the Union's campaign to secure a meeting with
Smith. But to all this Smith (and the respondent) turned a deaf ear.
Among its other efforts to secure -a meeting, the Union enlisted thee assistance
of the United States Conciliation Service and,the New Jersey Board of Mediation.
io Contrary to the assertion in the respondent 's brief, the record contains no evidence
that'the "owners of the business" were prevented from entering the plant that day and
that "several managerial employees we're threatened with assault and family reprisals
by individual members of the Union negotiating committee as well as by other Union mem-
bers." On the contrary, the record affirmatively shows that Smith, Frohlin, and Massa
were admitted to the plant that day. Admittedly the respondent did not seek a• court in-
junction to'curb what it now claims was illegal picketing. '
1 11 Smith , shortly after the strike began, opened an office in another city from which'
he' conducted the respondent 's business : ' , • ... I .
BERGEN POINT IRON WORKS 1087
Both of these agencies advised the Union that they could not secure a meeting,
since Smith would not meet with the Union while the strike was still in progress.
The strike was finally terminated as a result of the intervention of Allen
Weinsenfeld, the secretary of the New Jersey Board of Mediation, who appeared
at a union membership meeting, advised the employees that the plant would be
open on October 24, 1945, and recommended their return to work so that he
might arrange a bargaining meeting. The employees complied with Weisenfeld's
request and returned to work on October 24. After their return a negotiating
meeting was scheduled for November 6, 1945, to be held before Frank Taylor of
the New Jersey Mediation Board.
5. The respondent's unilateral downward reclassification of welders prior to
the November 6, 1945, conference
Following the strike and shortly prior to the negotiating conference scheduled
for November 6, 1945, the respondent effected a 10-cent hourly reduction in the
rate of certain of its employees who had formerly been classified as "A" welders,
thus bringing their hourly rate down to a level 10 cents below their pre-war rate.
The respondent asserts that the rate reduction was the result of a reclassifica-
tion of the affected employees from an "A" welding to -a "B" welding rating,
necessitated by the unavailability of "A" welding work in the shop. The
weight of credible evidence establishes, however, and it is found, that there was
no distinction in the respondent's operations between "A" welding work and "B"
welding work as such, even though only. "A" welders were regarded as quali-
fied to perform certain types of jobs, and that theretofore it had invariably
been the practice in the plant to have the welding classification follow the man
rather than the job, with the result that a welder qualified by test as an "A"
welder received the "A" rate regardless of the work to which he was assigned 12
In effect, therefore, the downward reclassification of "A" welders involved
essentially, it is found, a wage cut rather than a reassignment to different and
lower rated work.
In effecting the downward reclassification of the "A" welders, the respondent
acted unilaterally, without prior negotiation with the Union. No notice was
given to the affected employees until they received their pay checks disclosing
the diminution in their earnings. Nor was any notice given to the Union, aside
from the indefinite comment made by Smith at the September 20 meeting that the
respondent was then considering the possibility of down-grading welders.
At the opening of the November 6 meeting, the Union complained about the
respondent's failure to consult with it before taking this action, and protested
the wage reductions as being in violation of the 1944-1945 agreement as extended.
But the respondent took the position that there was no contract violation because
the 1944-1945 agreement had been breached by the Union, and that in the
absence of a contract it had a right unilaterally to transfer employees to such
classifications and to establish such rates as it saw fit.
12 This finding is supported not only by the testimony of Board witnesses Salaway and,
Clark, but by the position which the respondent itself had taken in an arbitration proceed-
ing involving the classification of a welder . It finds support also in a statement made by
the respondent ' s treasurer , Garson, at the time the welders' classifications were negotiated,
to the effect that there was no difference between "A" and "B" welders except for the
qualifying , test required of an "A" welder, which , upon successful completion , entitled him,
to the higher rating and pay.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Notwithstanding'the'Union's request, -the respondent refused to open for bar'
gaining the subject of the welders' reclassification, or to negotiate the question
as to-whether they should be restored to the "A" or continued in the "B" classi-
fication. The' assignment or transfer of employees to established classifications,
according to the respondent, was a matter vested solely in management's dis-
cretion. After the November 6 meeting, the respondent reclassified downward
additional welders, again without prior notice to or consultation with the Union.
6. The November 6, 1945, bargaining conference
Any expectation the Union may have had that the November 6 conference
would begin where the September 20 conference had left off was destined for
disappointment. Without prior notice to the Union. - the respondent at the
November 6 meeting withdrew its prior counter-proposals, which, together with
the Union's proposals, had furnished the basis for the earlier negotiations, and
submitted an entirely new proposed agreement. The new proposed agreement in
substantive content bore little relationship to the 1944-1945 contract, and in
practical effect deprived the Union of substantially all the gains it had been,
able to achieve in over 2 years of bargaining 33 As Smith testified at the hearing,
the respondent's new proposals were designed "to go back to the bargaining
relationships and procedures which had existed prior to the war and prior to
the time that the Union had come into the plant."
Before the subject matter of the respondent's new proposals was discussed
there arose another controversy, the full import of which on the issues of this
case will not become apparent until a later section of this report.
The negotiations prior to the strike had been conducted pursuant to the pro-
visions of the interim extension agreement, executed on June 4, 1945. Under this
the parties had agreed to continue in force and effect the 1944-1945 contract
until a new agreement was reached or a new directive order was issued, and
had further agreed that the new agreement, when reached, was to be retroactive
to the date of the expiration of the old. At the November 6 meeting, however,
the respondent announced for the first time that the terms of the new agreement
to be negotiated would become effective only from the date of its execution. The
respondent took the position that the Union, by going out on strike in the face
of the no-strike clause of the 1944-1945 contract, had breached and terminated
that contract, and the extension agreement with it, and had thereby released
the respondent from its contractual obligation. To this position the Union took
violent exception. It contended that there was nothing in the contract itself
to indicate that a, violation by either party would result in its termination. The
Union suggested that the question of whether there had been a violation be
treated as a grievance, and that it be submitted to arbitration under the pro-
cedures established by the 1944-1945 contract. But the respondent, asserting
that it was no longer bound by that contract, flatly rejected that suggestion. The
respondent added that all grievances then in existence, as well as those that
might arise in the future, would have to be handled in accordance with the
substantially revised grievance procedures outlined in the respondent's new
proposed agreement under which unadjusted grievances were not arbitrable.
19 The material exceptions were wages and vacation Wages , " which in the downward
side were still frozen by law, were left undisturbed The vacation benefits were slightly
more generous than in the prewar period, but still less than in the' 1944 -1945 contract.
BERGEN POINT IRON WORKS 1089
The question specifically arose .in conjunction with this discussion as to what
the effect of the respondent 's position would be on the retroactive application of
the contract to be negotiated . The respondent 's answer was that retroactivity
was definitely "out." The Union's claim to retroactivity , Smith stated, had
fallen with the extension agreement , and retroactivity was a question no longer
open for discussion .14 The negotiations , said Smith, would have to be on the basis
of a new contract effective when executed.
The dispute concerning the continued effect of the extension to the 1944-1945
agreement , which gave rise to considerable acrimony particularly on the part of
union representatives, was left unsettled. At the request of Mediator Taylor
who presided at the meeting , the parties turned to a consideration of the contract
terms. The respondent 's new proposed agreement effected a substantive
change, either by way of modification , addition , or deletion in practically every
clause of the prior contract. The more important proposed changes, their history,
and the specific position taken by the parties with respect to them will be reviewed
below.
Union security : The respondent ' s new proposal made no provision whatever
for union security or check-off . The respondent explained at the conference that
it had always opposed maintenance of membership and now that the War Labor
Board would no longer control the contract, it desired to return to the open shop.
The respondent had never before indicated its opposition to a union security
provision. Indeed, it had voluntarily agreed to a maintenance of membership
and check-off provision when the initial contract with the Union had been nego-
-ttated. In all subsequent negotiations , including the September 20 post-war
conference. it had accepted without question the principle of union security. It
had contended only that the union security provisions should be qualified by an
anntlally operative escape clause , and in that contention it had persisted despite
a War Labor Board directive order to the contrary.
Grievance and arbitration procedure : In the pre-war period before the advent
of the Union, there had been no regularly scheduled grievance meetings, but the
respondent had met with a five-man committee as occasion required and had paid
its members for time spent in presenting grievances. The procedure prior to
the strike, established by the first contract and since followed, had called for a
five-man committee with regularly scheduled weekly grievance meetings. In sub-
sequent negotiations the respondent had sought to reduce the complement of the
committee and the meeting time, but had not questioned the principle of regularly
scheduled meetings on time paid by the Company. Now the respondent proposed
to eliminate scheduled meetings altogether as well as compensation to employees
for time spent at grievance meetings. A more important change, and the one
which resulted in sharpest dispute, proposed the omission of arbitration as a
final stage in the adjustment of unsettled grievances, coupled with the retention,
but in more stringent form. of a no-strike clause.'° Under the new proposal, the
14 The findings concerning the respondent 's position on the question of retroactivity are
based upon the mutually corroborative testimony of Cameron and Joseph Lipman, the
Union's attorney , here found to be credible . Smith denied stating that retroactivity was
"out," but his testimony elsewhere on that point was evasive and inconsistent and he ad-
mitted that his memory on that subject was hazy. "My mind," he testified at one point
"is somewhat hazy as to the way I put it to them, as to whether they understood the situa-
tion because there was a great deal of my explanation of the idea that the strike had broken
everything and they couldn 't expect to earn retroactive-they couldn't expect to carry the
old contract through "
11 Under the former no -strike clause , the Union simply agreed not to call a strike. The
new no -strike clause made the Union responsible as well for economic action taken by its
members "separately or collectively."
1090 DECISIONS OF NATIONAL' 'LABOR" RELATIONS BOARD
respondent's written decision on any.grievance„was to be final . The-principle
of arbitration had been established by voluntary agreement in the first contract,
and had theretofore never been questioned by the respondent until the September
20 conference. The record clearly establishes, although Smith at one point denied,
that the no-strike clause had always been regarded, along with the no-lockout
clause, as the quid pro quo for the arbitration clause. This had been recognized
by Smith as late as September 20, 1945, when, in proposing for the first time
the deletion of arbitration, he had, according to this testimony, suggested that he
was willing to relinquish the no-strike clause. On November 11, however, Smith
insisted that the no-strike clause remain in the contract, pointing out in the course
of the discussion that nothing could prevent the Union from striking , but that
'he wanted to make it clear that in the event the Union chose to strike the contract
would be nullified and all benefits accrued to employees thereunder lost. The
principal reason assigned by the respondent for its changes in the grievance
procedure and for the deletion of the arbitration clause was that management
"had to be on the top of the grievance procedure," '° and that the respondent did
not believe that "a third party who had no stake in the business financially or
emotionally," unless it were an established court of law, should be permitted to
interfere in the settlement of disputes.
Management rights clause: The respondent proposed a clause which would
make certain actions by the respondent, such as transfers, promotions, and
disciplinary suspension, non-reviewable under the grievance procedure, and
would exclude transfers (including those to differently rated jobs) and pro-
motions from the operation of the seniority provisions. A somewhat similar
demand had been made by the respondent in its proposals for the 1944-1945
contract, and the War Labor Board, to which it had gone as a disputed issue,
had directed that, while responsibility for such action rested in management,
it was subject to challenge by the Union through the regular grievance procedure.
A management-rights clause containing the grievance procedure qualification had
been inserted in the 1944-1945 contract and had been included in the respondent's
original proposals for the 1945-1946 agreement. At the November 6 conference,
the respondent asserted that the transfer of an employee to a given job, whether
higher or lower rated than his old job, was a management prerogative not sub-
ject to challenge by the Union, and that so long as the employee was paid the
agreed-upon rate for the job to which he was assigned, it did not involve a
condition of employment for which the Union has a right to press a grievance.
The respondent further explained this clause, however, upon the ground that its
jobbing operations were such as to make it essential that it have a free hand
in job transfers and assignments without the necessity of accounting to the
Union therefor.
Premium pay for Saturdays and Sundays: For some years prior to the certifi-
cation of the Union, it had been the established practice to pay employees
premium pay for work performed on Saturday and Sunday, regardless of the
number of hours they had worked earlier in the week. In the 1943 contract
negotiations, the respondent had voluntarily agreed to continue this practice,
and, indeed, had agreed to raise the amount of premium pay payable on Sunday.
19 The quoted statement is from the testimony of Cameron which the undersigned credits.
Although Smith at one point denied making such a statement , his testimony on that point
-was not only unconvincing , but contradictory to his general philosophy on the subject of
collective bargaining as expounded by him at some length in the course of the hearing, and
-is not credited.
BERGEN POINT IRON WORKS 1091
-In 1944, the respondent had sought, to eliminate the premium pay provisions for
these days , but had complied with the directive of the War Labor Board which
directed the-continuation of this practice. In the August and September con-
ference the respondent had agreed to a continuation of premium pay. In its
November 6 proposals, however, the respondent deleted such provision. At the
conference it urged that this tended to encourage absenteeism during the earlier
part of the week. The respondent declined to alter this, provision,, although
it was pointed out by the Union that it would amount to a wage reduction and a
wage stabilization violation.
.. Holidays: The 1944-1945 contract had made provision for 6 paid holidays not
worked, as well as for 2 half-holidays before- Christmas and New Years Day.
In its original 1945-1946 contract proposals and in the negotiations through Sep-
tember 20, the respondent,had not sought to disturb the provision for the 6 holi-
days, although it had asked for the elimination of the 2 half-holidays.17 In the
November 6 proposals , the respondent demanded the elimination of the 6 full
holidays, but proposed to restore the 2 half-holidays that had existed before
the war. It was the respondent's position that it was unsound business and
contrary to company policy to pay for time not worked, except for the period
of vacations, and that now that the war was over it desired to return to the
pre-war holiday practice. It was also the respondent's position that payment for
time not worked was really a fringe wage issue. But the respondent did not
offer to compensate for the loss of holidays by a wage raise. The Union argued;
and the respondent agreed, that it would be violative of the Wage Stabilization
Executive Order to eliminate the holidays at that time. The respondent ex-
pressed an intent to comply with the former holiday provisions while that order
was still in effect, but it nevertheless declined to write into the new contract
provision for the 6 paid holidays.
Vacations: In its original proposals for a 1945-1946 contract, and in the nego-
tiations held in August and September, the respondent had proposed no change
in the vacation provisions as established by the last contract. Now the respondent
proposed certain modifications with respect to the basis for computing vacation
benefits. These would have reduced the benefits to employees to a standard
below that of the 1945-1946 contract, although slightly above that of the pre-war
period. The record does not reflect the arguments advanced by the parties on
this issue.
- Probationary Period: The November 6 proposal requested that the probationary
period be decreased from 3 months (the period established in all prior agree-
ments and not disputed in the August and September negotiations) to 6 weeks.
Non-discrimination clause: All former contracts and proposed contracts, both
of the Union and the respondent, had contained an undertaking by the respondent
not to discriminate against an employee because of race, color, creed, or national
origin. This was now omitted. The Union pointed out that there had never
been any problem as to this clause and that it regarded it as a fundamental
clause in all its contracts. But the respondent, asserting that the subject of
discrimination was covered by the New Jersey law, refused to write it into the
contract. The respondent took a firm position on this, even though it was pointed
but that unless the non-discrimination principle were written into the contract,
the Union would not be able to enforce it as a contract violation.
'- Prior to the war the respondent had recognized the 2 half-holidays. The 6 full holi-
days were first included as a result of a War Labor Board directive order.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After several hours of discussion , no, agreement was reached , nor were any
concessions made by either party, upon any of the disputed contract terms.
After the proposals were discussed , the Union inquired about - the possibility of
entering into a temporary agreement by reducing to writing the then existing
policies and practices in the plant . This the respondent declined to do, stating
that any agreement to be negotiated would have to be on the basis of its new
proposals . Near the close of the meeting , the question of unsettled grievances
came up. The Union suggested that, since the parties were so wide apart on .a
new agreement , the previously established grievance procedure be used to dispose
of pending grievances , rather than allow them to accumulate indefinitely until a
new agreement was reached . The suggestion was rejected , the respondent stating
that it would only discuss grievances with the Union along the procedural lines
outlined in its new proposed agreement . To Taylor 's inquiry as to whether
that meant that the respondent 's answer on all grievances must be final, Smith
replied, "That is the way it should be."
The November 6 meeting adjourned with the understanding that a further
meeting would be called , at a time and place to be fixed by Mediator Taylor.
7. The Union 's efforts to bargain after November 6, 1945
The November 6 conference was the last negotiating meeting held between the
parties. Notwithstanding the understanding upon which that meeting had ad-
journed, Taylor, for some reason unexplained in the record , made no effort on
his own initiative to convene a further meeting. The respondent at no time
called upon him to do so . Nor did the Union until some months later.
During the period immediately succeeding the November 6. conference, the
Union appears to have focused its main attention upon establishing , the continued
validity of the 1944-1945 contract and the agreement extending it. In Novem-
ber, the Union filed formal grievances with the respondent , charging that the
respondent had violated the contract by refusing to check off dues, by reducing
welders' rates , and by refusing to meet with the Union grievance committee on
scheduled days.,8 The respondent rejected these grievances on the ground that
the contract had been terminated when the employees went on strike and de-
manded arbitration , but the respondent refused to become a party to any arbi-
tration, stating , "there is no contract to arbitrate upon." The Union , neverthe-
less, instituted arbitration proceedings , appointing its own arbitrator , and arrang-
ing to have an industry member and an impartial member designated by the
Wage Stabilization Board.1D On March 8, 1946, the Arbitration Board, with the
"After the strike, the regularly scheduled weekly grievance meetings were eliminated
by the respondent . The respondent, after November 6, 1945 , continued to accept and pass
upon grievances presented by the Union , according it recognition in that respect, but in-
sisted that grievances be handled in accordance with the procedure outlined in its Novem-
ber 6 proposals The Board adduced testimony through employee witnesses Stanley Jed-
ziniak, Paul O 'Donnell , and Louis Wagner , designed to establish that after November 6,
the respondent attempted on occasions to by -pass the Union on grievances presented and
to encourage employees to engage in individual bargaining The undersigned has consid-
ered the testimony of these witnesses in the light of counteracting testimony and docu-
mentary evidence presented by the respondent , and concludes , on the basis of the record
as a whole , that the record does not support hndings on the propositions which counsel for
the Board sought to establish through such witnesses.
'D The appointments by the Wage Stabilization Board , as successor to the War Labor
Board , were made pursuant to a prior directive order of the War Labor Board which pro-
vided that if either party failed to nominate an arbitrator, the War Labor Board would
designate arbitrators for the balance of positions remaining open on the Arbitration Board.
BERGEN POINT IRON WORKS 1093
industry member dissenti1ig;' 1lled4ithat the violation of'the no-strike clause,
although it. might entitle the offended party to other relief, did not justify a
termination of the contract, and that the grievances presented by the Union were
arbitrable . Following an arbitration hearing on the disputed issues, in which
the. respondent and the industry member refrained from participating , the ma-
jority of the arbitrators, on April 25, 1946, issued their award, finding for the
Union on all counts.. The respondent refused to comply with the award. In
June 1946, the Union petitioned the Supreme Court of the State of New York,
County of New York, in the case of Ptsano v. Bergen Point Iron Works, for an
order confirming the award; the respondent cross-moved to have the award
vacated. In October 1946, the Court issued its decision, vacating the award.
The Court did not base its decision upon the ground that the Union'had breached
the contract as the respondent claimed, but on the ground that the Union, by
serving its additional contract demands on September 22, 1945, and thereafter
going out on strike, had elected to terminate the then existing contract.20
The Union, however, did not await the final determination of this controversy
before resuming its efforts to secure a collective bargaining -meeting with the
respondent. George Salaway, chairman of the Union's shop committee, testified
without contradiction that on 4 or 5 occasions "between about the month of No-
vember and about the month of April," the Union shop committee requested offi-
cials of the respondent, including Superintendent Frohlin, Labor-Coordinator Ben
Smith, and Chief Engineer and Director Massa, to arrange for a meeting where
they could "sit down with Mr. Smith and continue negotiations." On each such
occasion, according to Salaway, the Committee was advised that the official ad-
dressed had no authority to speak for the respondent on the subject, but that the
message would be relayed to Henry Such Smith who alone had charge of labor
relations 21 But in no instance was a reply received from Smith, directly or in-
directly. Salaway's testimony does not indicate the precise dates during that
period when the Committee's requests were made. This much, however, is clear :
Cameron, the Union's business agent who generally arranged with the respondent
for contract negotiating meetings, made no effort to communicate directly with
the respondent concerning a further meeting until March 1946.
Iri March 1946, shortly after the arbitrator's award upholding the continued
validity of the old contract had been handed down, Cameron attempted, without
success, to contact Smith for the purpose of arranging a further meeting. He did,
however, succeed in speaking to Kuebler, the respondent's attorney, and was
advised by him that "the company had advised [Kuebler] that a meeting could
be arranged upon a written request of the Union asking for a meeting to negotiate
a contract to be effective as of the date negotiated."
20 During this period the Union also pressed another arbitration proceeding involving
back pay claims based upon grievances which had arisen in May and June 1945. That
proceeding had been commenced prior to the strike and the respondent had joined in it.
After the strike, the respondent withdrew its designated arbitrator , and refused to par-
ticipate in the hearing held on November 30, 1945. On January 4, 1946, the arbitrators
issued their award finding against the respondent , and ruling that the question of the con-
tinued validity of the contract was not involved since the claims had arisen prior to the
strike A motion to confirm and a cross -motion to vacate this award were filed in the New
Jersey, Hudson County Court, in May 1946 The Court proceeding was not followed
through, however, and was discontinued by stipulation of the parties in October 1946
21 Smith, after the November 6 meeting, was absent from the plant continuously , except
for one day in May , until July 6, 1946.
809095-49-vol. 79-70
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 25,1946 , Cameron wrote Smith • as.follows : -
Under the date of September 22,' 1945, the Union submitted a demand to
the Company for a $2.00 per day wage increase ' as part of its contract demands
for the contract for the year beginning April 15, 1945.
Since that time , we have been able to secure one conference with the Com-
pany at the Hotel Plaza in Jersey City on November 6, 1945, - at which Mr.
Taylor of the New Jersey State Mediation Board was present.
The Union is now requesting another conference , at which time we would
like to continue negotiations on the demand for a wage increase as well as
for the other issues remaining unsettled in the contract. '
Under date of April 5, 1946, Smith replied to Cameron 's letter as follows :
As you are informed , no contract has existed between the Company and
the Union since September 25, 1945. Subsequently to October 25, 1945,
the date on which the employees in the bargaining unit which you repre-
sent returned to work, all work has been performed without a contract.
On November 6, 1945, a collective bargaining conference was held at the
Hotel Plaza with Mr. Taylor of the New Jersey Mediation Board in attend-
ance. At the opening of the conference the facts given above were pointed
out to the Union . In the absence of a specific new contract proposed by
the Union , the Company 's new contract proposal was used as a starting
point for the negotiation of a new contract to become effective on the date
of its execution.
At the adjournment of that conference it was understood that Mr. Taylor
would call for the arrangement of a subsequent conference at a convenient
time.
In the absence of further advice from Mr. Taylor the Company is still
ready and willing to continue the November 6, 1945, conference following
our receipt from you of a request to proceed with the negotiation of a new
contract to become effective on the date of its execution.
The Union did not forward the respondent a letter in the form requested. To
have complied with this condition would have meant in the considered judgment
of the Union and, according to the advice of its counsel , the surrender of its posi-
tion ( supported at that time by an arbitration award ) concerning the continued
operative effect of the 1944-1945 contract and extension agreement . It would
have meant , moreover , the Union 's acceptance in advance of the bargaining con-
ference of the adamant position taken by the respondent at the November 6 con-
ference, that the new contract must date from its execution and that the question
of retroactivity was definitely "out" as a subject of negotiation.
Following the receipt of the respondent's letter of April 5, Cameron communi-
cated with Mediator Taylor and asked him to endeavor to arrange a meeting.
He was subsequently advised by Taylor that he had been unable to do so because
the Union had not sent a letter in the form requested by the respondent. He
suggested that the Union write the respondent again, fixing a time and place
for a meeting. Beginning about this time and continuing until August, the
plant employees on a number of occasions went to the office in a body and de-
manded of Company officials , other than Smith , who was never present, that
the respondent continue contract negotiations with the Union . Each time
they were met with the same response which all management personnel, at
the request of Smith, had committed to memory : "The Company is ready
and willing to continue the November 6, 1945 conference following receipt from
the Union of a request to proceed with the negotiation of a new contract to be-
BERGEN POINT IRON WORKS 1095
come effective on the date of its execution .,',- On May 2, 1946, Plant Superintend-
ent Frohlin in a telephone conversation with Cameron, according to the latter's
credited testimony not denied by Frohlin, advised Cameron that he thought that
the respondent was now ready to renew negotiations.
On May 2, 1946, Cameron wrote Smith as follows :
This morning in a telephone conversation with the shop superintendent,
Mr. Frohlin, I was advised that the Company was ready to begin negotia-
tions for a contract between the Bergen Point Iron Works Company and
Local 446 of the United Electrical, Radio and Machine Workers of America.
This is to advise you that the Union is ready and willing at any time to
sit down and bargain collectively with the Company for the purpose of
ironing out the existing dispute between the parties and for the purpose of
negotiating a new collective bargaining agreement.
The Union, therefore, suggests that such a conference be immediately
arranged and further suggests Tuesday, May 7, at 7:30 p. in. at any place
that is convenient.
To this letter, the respondent replied on May 4, 1946, as follows :
As you are aware, Mr. Frohlin advised you and the Union Committee on
the morning of May 2, 1946, that the Company is ready and willing to con-
tinue the November 6, 1945 conference in accordance with the letter to you
of April 5, 1946, which concludes as follows [Quoting therefrom] :
In the absence of further advice from Mr. Taylor the Company remains
ready and willing to continue the November 6, 1945 conference following, the
receipt from you of a request to proceed with the negotiation of a new con-
tract to become effective on the date of its execution.
Smith, while testifying, denied that the respondent had any intent to condition
or limit the scope of bargaining by demanding a formal request from the Union
in the particular form indicated as a prerequisite to a meeting. The demand,
testified Smith, was made necessary by the language used in the Union's letters
and was designed only to insure that the Union would not later in a court pro-
ceeding use the respondent's reply as an admission that the respondent consid-
ered the 1944-1945 contract and the agreement extending it to be still in force.
Smith's testimony in this request is not credited. When asked how an unqualified
acceptance of the Union's invitation to bargain, particularly as contained in the
Union's letter of May 2 (which specifically proposed as a subject of negotiation the
"ironing out of the existing dispute" relating the continued validity of the old
contract), would have prejudiced the legal position of the respondent in a court
action, Smith's explanation was strained and unreasonable to the point of absurd-
ity. Nor was he able to explain why he could not adequately have safeguarded
the respondent's position by simply coupling to his acceptance of the invitation
a reservation of his contention ; nor why it was necessary to have his supervisory
staff commit to memory the phrase used. Attorney Kut'bler, whom Smith says
he consulted on this point, was more frank. He readily conceded at oral argument
that the Union's acceptance of the respondent's position that it would only bar-
gain on a contract to be effective when executed was a "condition of future bar-
gaining" imposed upon the Union 22 He conceded further that the respondent
was unwilling to meet with the Union to "iron out the existing dispute" [as to
whether there had been a breach of contract] because "we did not feel that we
22 Kuebler argued, however, that "the respondent was justified in placing this condition
on further bargaining" because the Union had "breached" its earlier contract.
1096 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were under any obligation to iron - thatx dispute; out by bargaining." ,Considera-
tion of the entire record, particularly in context with the respondent's position
taken at the November 6 conference and never subsequently abandoned, leaves
no doubt, and it is found, that the respondent, throughout this entire period, as-
well as thereafter, expressly conditioned further bargaining upon the Union first
relinquishing its legal claim that the 1944-1945 contract as extended was still
operative as well as upon the Union acquiescing in advance of negotiations that
the new contract to be negotiated would not by its terms be retroactive in effect.
After the letters referred to above, there were no further written communica-
tions from the Union requesting a contract bargaining conference, although, as
noted, the plant employees acting collectively continued to press until the strike
in August for a meeting, always drawing the same response, never more and
never less. There was, however, one further exchange of, correspondence be-
tween the parties concerning the respondent's unilateral action in changing hours
of employment. -
8. The respondent's unilateral change of hours of employment and refusal to
bargain with the Union with respect thereto
For some time prior to November 1945, the regularly scheduled workweek had
consisted of 6 days and about 52 hours. On November 8, 1945, the respondent,
without consulting the Union, posted a notice announcing the reduction of the
workweek to 8 hours per day, 5 days a week. On May 14, 1946, the respondent,
again without advance notice to or consultation with the Union, posted another
notice further reducing the workweek to 3 days a week.23 Operations continued
to be conducted on the basis of a 3-day week until July 9, 1946, when the re-
spondent posted a notice to the effect that the plant would thereafter again
operate 5 days per week.
The Union Shop Committee, shortly after the posting on November 8, 1945,
and again following the posting on May 14, 1945, called upon Head Foreman
Tellefson and Labor-Coordinator Ben Smith to ask for an explanation. The Com-
mittee was advised that the notices were posted at the direction of Henry Such
Smith and that any explanation would have to cone trom him. On each occasion,
the Committee asked for a conference with Smith on the subject, but to no avail.
Several days after the posting of the May 14 notice announcing a reduction
of the workweek beginning the following week, Cameron telephoned the plant to
request a conference on the subject. He was unable to reach Henry Such Smith,
but Ben Smith to whom he spoke promised to transmit Cameron's request for
a meeting to Henry Such Smith Upon his failure to hear further from the
respondent, Cameron, on May 24, wrote Smith, complaining that the reduction
of the workweek was a contract violation, and requesting a conference to discuss
the subject of the workweek. To this letter, Smith replied on June 3, 1946, as
follows :
Since no contract is in force or effect between the Union and the Company,
there exists no obligation with respect to the operations schedule of the
plant.
The Company remains ready and willing to continue the November 6th,
1945, conference following the receipt from the Union of written request
to proceed with the negotiation of a new contract, to become effective on
the date of its execution.
zs It is not disputed that the reductions of the workweek were necessitated by declining
business operations In the past , however, this condition had been met by lay -offs rather
than by reduction in hours of work.
BERGEN POINT IRON WORKS
9. The'August .16, 1946, strike
1097
On July 11, 1946, the Union filed 30-day strike notices pursuant to the War
Labor Disputes Acts. The notices declared the Union's intention to take strike
action "since the Union has been unable to settle the existing dispute with the
Company through negotiations " On July 16, 1946, the United States Concilia-
tion Service assigned Commissioner Frank Brown to the case. Prior to the
commencement of the strike referred to below, Brown informed Thomas Neil,
who on July 1, 1946, had succeeded Cameron as the Union business agent, that his
efforts to arrange a meeting with the respondent had been unsuccessful. At a
Union meeting held immediately prior to August 16, 1946, it was decided that in
view of certain discharges which had recently occurred 24 and in view of the
inability of the Union to secure a bargaining meeting with the respondent, the
employees would go out on strike. On August 16, 1946, immediately following the
discharge of another employee, all production and maintenance employees walked
out on strike.25 At the time of hearing the strike was still in progress.
On the morning of the strike, shortly after its commencement, Union Busi-
ness Agent Neil, in a conversation with Smith outside the factory gate, asked
.Smith for a negotiating conference to discuss the contract, the discharge of the
employees, and the return of the men to work, Smith's response was that he
was prepared to negotiate with the Union provided that the men first returned
to work and provided further that the Union forwarded the respondent a written
request to negotiate a new contract to be effective on the date of its execution 26
Since the commencement of the strike the Union has attempted through the
United States Conciliation Service to arrange a meeting with the respondent, but
without success. According to advice received by it from Conciliator Brown, the
respondent since the beginning of the strike has taken the position that it would
not meet with the Union unless the strike were first called off and the Union agreed
that the contract to be negotiated would go into effect on the date of its execution.'?
2a There is no claim in the complaint that the discharges were discriminatory nor any
proof in the record to indicate that they were other than for just cause.
"The Union committee met with Smith concerning these discharges on that and pre-
ceding days and asked that it be handled through the grievance procedure outlined in the
1944-1945 contract . The Committee was advised by Smith that since there was no con-
tract in existence , the grievance procedure outlined by the respondent at the November 6,
1945, contract would have to be followed . The record indicates, however , that Smith did
not decline to, and in fact did, discuss the discharges with the Union
26 This finding is based upon a synthesis of the testimony of Smith and Neil. Smith
testified as follows :
He [Neil] asked for a negotiating conference to see if the men could return to work
and I explained that the Company was ready and willing to continue the November 6,
1945 negotiating conference on receipt from the Union of written request to negotiate
a new contract to be effective on the date of execution.
Mr. Neil said that he didn't know anything about that and why not negotiate any-
way. I explained that the status of the old contract was by that time before the New
York Supreme Court and that there was no other way that we could negotiate except
as outlined by that form of our willingness to continue the November 6th conference
until the court case was settled.
Smith did not deny that he also imposed a second condition, namely, that the men first
return to work.
ZT Smith admitted on cross-examination that he received a call from Brown on or about
August 20 , 1946, that in the course of the discussion he declined to accept Brown's pro-
posal that the,discharges of the employees be,arbitrated and that Brown suggested a meeting
with the Union which Smith declined.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As has been noted above, the Pesano,case ,.in which the New York Supreme Court
ruled that the 1944-1945 contract and the extension agreement had been termi-
nated , was decided on October 17, 1946. After this decision was received , Joseph
Lipman, the Union's attorney , inquired of Carl Kuebler , the respondent 's attorney,
whether the respondent was willing , now that the controversy concerning the con-
tinued operative effect of the old contract had been determined by the Court, to-
meet with the Union for the purpose of negotiating a contract . Kuebler informed
Lipman that he understood Smith's position still to be that he would not meet
with the Union for the purpose of negotiating a new contract until the employees
had first returned to work . Kuebler promised to check with Smith and let Lip-
man know, but Lipman never heard further from him. At about the same time
Conciliator Brown communicated directly with Smith . As appears from Smith's
testimony , Brown advised Smith that he was calling at the request of Lipman
who had informed him that the Union had lost its case in the Court and had asked
him to communicate with Smith to determine whether there was "any change of
anything to be considered now." Brown asked Smith whether he now wanted
to "sit down." Smith declined the proffered invitation to meet with the Union,
stating "that . when the men came back and we found out where we stood, then
we;would certainly be willing to meet."
Up to the time of the hearing , as was made clear at oral argument before the
undersigned , the respondent had not withdrawn the conditions upon which it is
prepared to meet and negotiate with the Union, namely, that the contract be effec-
tive only when signed and that the strike first be abandoned.
Conclusions
., It is the contention of Board's counsel that from on or about March 13, 1944,
when Smith assumed charge of the respondent 's labor relations , the respondent
has continuously failed to bargain collectively with the Union in good faith. The
respondent denies this to be true , and asserts affirmatively that "it bargained in
good faith continuously with the Union to and including November 6, 1945,
subsequent to which date the Union refused to bargain- in good faith with the
respondent." The complaint also alleges, and the respondent denies, that the
respondent, independently of its refusal to bargain, violated Section 8 ,(1) of the
Act, by vilifying , disparaging and expressing disapproval of the Union;
It is true, as Board's counsel stresses, that the arrival of Smith upon the bar-
gaining scene in March 1944 marked a change in the respondent's approach to its
contract negotiations with the' Union. After Smith assumed control, the respond-
ent's attitude in contrast to that of the year before, stiffened ; it sought to with-
draw from the Union benefits to which it had previously agreed, and, except in
several minor respects or where directed by the War Labor Board, it failed
during two series of contract negotiations to agree upon or compromise any of
the Union demands, or to yield on any of its own. While relevant in evaluating
the- respondent's entire course of conduct; these facts, however, do not in, them-
selves establish bad faith dealing. The duty to bargain under the Act requires,
to be sure, more than a mere meeting and discussion of terms with employee
representatives ; it "encompasses an obligation to enter into discussion with an
open and fair mind and with a sincere purpose to find a basis for agreement con-
BERGEN POINT IRON WORKS' 1099
cerning the issues.presented." :e But it does not require that an, employer 'agree
to any particular terms, nor does it require him to continue benefits or advantages
theretofore granted a union, although a failure to do so may under certain con-
ditions and in conjunction with other circumstances bear upon the question of
his over-all intent.
The history of events from March 1944 until the September 25 strike reveals
certain instances where the respondent fell short of the standard of conduct
expected in good faith bargaining , notably, its delay in submitting counter-
proposals, its failure to respond through a responsible representative to the
Union's communications, and its conditioning acceptance of the Union's request
for a meeting during non-working hours upon the Union dropping a bargaining
demand . Yet, when the events of that period are viewed as a whole, there appears
to be no substantial basis to support a finding that the respondent was guided
in its dealings with the Union during that time by an unlawful design or
insincerity in purpose.
In the negotiations for a 1944-1945 contract, the respondent failed to yield
on any contract issue, but the Union, the record shows, was equally tenacious.
Following the issuance of the interim War Labor Board directive order, the
respondent met with the Union without undue delay, and reduced 'to writing and
executed the 1944-1945 contract embodying most of the recommendations of the
directive order. By that time the anniversary date of the 1944-1945 contract
had passed and the Union had demanded negotiations for a contract for the suc-
ceeding annual period. There followed a delay, here found unjustified, in the
submission of the respondent's counterproposals 29 But is appears that this
delay was due more to the respondent's want of appreciation for its full respon-
sibilities under the Act than to a lack of sincere purpose to reach an agreement.
This is reflected not only by the agreement extending the 1944-1945 contract which
the respondent executed on June 4, 1945, but by .the counterproposals which
the respondent eventually submitted and which adopted in the main the pro-
vi^ions of the 1944-1945 contract, including terms which the respondent had
previously resisted . With respect to the August 1945 conferences which followed,
and which were concerned largely with the Union's numerous new demands, many
of extreme character, there is little to suggest that the respondent, although it
may have been engaging in close bargaining, was not sincerely desirous of
reaching an agreement.
The various demands were fully discussed, reasons were given by the respond-
ent in support of its position , and certain minor concessions were indicated.
More open to doubt is the sincerity of the respondent's purpose at the September
20 conference in suddenly injecting into the already protracted negotiations
new demands not previously raised and which it must have known were repug-
nant to the Union. However, the Union also presented new demands at about
that time, and went on strike, before the respondent had, an opportunity to
respond to them. On the basis of the total situation up to the time of the
strike on September 25, 1945, the undersigned is not persuaded that a refusal
to bargain is substantially supported by the record.
28 Matter of Singer Manufacturing Company, 24 N. L. R. B. 444, 464, enf'd Singer Mfg.
Co. v. N. L. R. B., 119 F (2d) 131 (C. C. A 7), cert den. 313 U S. 595. See also
N. L R. B. V. Griswold Mfg. Co., 106 F. (2d) 713 (C. C. A. 3) ; N. L. R. B. V. Pilling, 119
F. (2d) 32 (C. C. A. 3).
29 See Matter of, Burgic Vinegar Company, 71 N. L., R. B. 829.
1100 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
The undersigned, therefore, concludes and finds that the respondent's dealings
with the Union from March 13, 1944, to September 25, 1945, were not such as
to constitute a refusal by the respondent to bargain with the Union during that
period.
II
The same conclusion cannot be reached with respect to the period which fol-
lowed the strike of September 25, 1945. From the beginning of the strike
the respondent closed the door to any further dealing with the Union until it
first abandoned the strike. It kept it closed until the end, and this was the
basic cause of the prolongation of the strike. The respondent does not question
the general proposition that to condition bargaining upon the abandonment of
a strike constitutes an outright refusal to bargain. But it maintains that this
case is different because, it alleges, the strike was in violation of the no-strike
clause contained in the 1944-1945 contract as extended, it was accompanied by
illegal picketing, and it was not preceded by strike notices filed pursuant to
the provisions of the War Labor Disputes Act. The record does reflect a failure
to file strike notices. It is doubtful whether it also supports the other acts of
alleged misfeasance claimed by the respondent. As has been found, the Court
which was called on to rule on the Union's alleged breach of contract merely
decided that the Union elected to terminate, not that it breached, the contract.
On the question of picketing, the record shows no more than that, after the
strike was several days old and after the respondent had already refused to
negotiate a settlement, the Union engaged in mass picketing concerning which
the respondent admittedly never complained to the police authorities nor sought
to stem by court action or otherwise. In any event, the questions of illegality
and misconduct are matters which it is unnecessary here to decide. For even
if resolved in favor of the respondent, it would not excuse its refusal to bargain.
It has long been recognized by Board and Court decisions that if the objective
of the Act to substitute collective bargaining for industrial warfare is to be
achieved, it is fully as important, if not more, that the bargaining process be
just as available during the course of a strike as prior to or subsequent to a
strike. It has, therefore, been consistently held that neither a contract viola-
tion, illegality in the inception of a strike, nor illegal acts in its conduct, may
serve to impair or suspend the employer's obligation to bargain with the stat-
utory representative.S0
The respondent seeks to justify its refusal to meet with the Union during the
1945 strike, upon an additional reason, one which it also urges in connection with
the 1946 strike. It says in its brief that "the Company had no alternative but
to assume that the Union had no constructive desire to resume the negotiations
which it had terminated," because "the fact is that not a single letter, registered
90 See, e. g., Matter of Timken Roller Bearing Co., 70 N. L. It. B. 500 ; Matter of Greater
New York Broadcasting Company, 48 N. L R B. 718, enf'd N. L. R. B v Greater New
York Broadcasting Corporation , 147 F. (2d) 337 (C. C A 2); Matter of Reed 8 Prince
Mfg. Co., 12 N L. It. B 944, 971, enf'd N. L. R B. v. Reed & Prince, 118 F. (2d) 874, 885
(C. C A 1) ; N. L. R. B. v. Highland Shoe, 119 F (2d) 218, 222 (C. C. A. 1). See, in re
effect on employees ' rights of a failure to file strike notices pursuant to War Labor Dis-
putes Act, Matter of Republic Steel (98" Strip Mill), 62 N. L R B. 1008.
N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332, is not as the respondent asserts authority to
the contrary . There, as a result of the employer' s legitimate discharge of employees who
struck .in. violation of a contract, the,.chargiag.union, , had lost its majority ' status;'thus
relieving the employer of the duty to bargain 'with it. -Here, the employee status of the
strikers continued and the Union 's majority status remained unimpaired.
BERGEN POINT IRON WORKS 1101
or plain, was sent to Smith or the Company by the Union in the entire period of
the strike , asking the Company to resume negotiations discontinued by the
,Union." This is a strange argument to advance in light of the record facts,
which the respondent concedes , showing the numerous direct requests for a meet-
ing made in person and over the telephone of Smith and other executives of the
respondent by responsible Union officials throughout the course of the strike, let
alone the bombardment of messages received by the respondent as a result of the
Union's appeal to the public . True, none of the Union 's requests took the form
of a "letter , registered or plain ," but its desire for a meeting was nonetheless
unequivocally conveyed to the respondent . The Act does not require , particularly
during the course of a strike, a written invitation to bargain , drawn in strict
accordance with the formalities of social exactness.
The end of the strike did not mark the beginning of bargaining . Shortly after
the return of the employees but before the November 6 meeting , the respondent,
without notice to or consultation with the Union , effected a downward reclassi-
fication, in effect a wage cut, of certain of its welders, and thereafter, at the
November 6 meeting declined , although requested by the Union , to negotiate
concerning the restoration of the welders' original classification and rate. By
such conduct , as well as by its later action in effecting unilateral changes in the
length of the workweek and in rejecting the requests of the Union to discuss
that subject with it, the respondent violated the obligation cast upon it under
the Act to bargain with the representative of its employees with respect to rates
of pay, hours of employment , and other conditions of employment . The respond-
ent was not , as it claimed , privileged to take such action without reference to the
Union, because there was no contract in existencw at the time. The duty to
consult with the statutory representative concerning changes in wages, hours,
and conditions of employment , is one imposed by law and exists quite independ-
ently of the existence of a contract.
Nor does it appear from the entire record that the respondent approached the
November 6 bargaining meeting with an open mind and a sincere purpose to
reach agreement with the Union on all matters in dispute.
Prior to November 6, all negotiations had proceeded on the basis that the new
agreement would be retroactive to April 15 , 1945. At the November 6 meeting,
the respondent , asserting that the Union by going out on strike had breached the
agreement providing for retroactivity , took the flat and final position that the
new agreement would have to be effective on the date of its execution , and re-
fused to consider the question of retroactive application as a matter open for
negotiation . The respondent had an undoubted right to assert that the old
contract had been terminated by the strike , releasing it from its legal obligation
to enter into a retroactive agreement , and to demand , therefore , that the new
agreement be effective only when signed. But the respondent could not, as it
did, firmly close the door to negotiations on the retroactive application of the
new contract , and thereafter condition further bargaining upon the Union
acquiescing in its position that any new contract to be signed would have to be
effective when executed . More than Indicative of bad faith , this was in itself
a refusal to bargain upon a proper subject of negotiation.
Apart from this specific refusal to bargain , there are other circumstances asso-
ciated with the November 6 meeting which reflect on the respondent 's good faith
bargaining at that time . Perhaps most significant of all is that the respondent's
basic approach to the meeting , which it knew was tied in with the termination of
the strike , was one designed to widen , rather than narrow, the pre-strike area
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of disagreement.' The respondent withdrew its original counterproposals and sub-
initted new proposals admittedly designed,to restore the bargaining practices and
procedures which had existed in the days of the shop committee, prior to the
Union 's designation as representative.' Substantial changes were even made
with respect to the respondent's post-war demands submitted at the September 20
conference, immediately preceding the strike ; and these, too, were in a form less
palatable to the Union"2 The respondent must have known that the terms which
it proposed could not be accepted by the Union without discrediting it in the eyes
of the employees. Yet at the meeting the respondent showed no disposition to
recede in any material respect from its original position. Indeed, in one important
respect it showed itself less inclined to be open to reasonable argument. Thus at
the September 20 conference, the respondent had recognized that there was validity
in the Union's position concerning the interrelationship between the arbitration
and the no-strike clauses and had expressed an inclination to consider modification
of the no-strike provision in return for the deletion of the arbitration provision.
But at the November 6 meeting even this manifestation of 'a willingness to give
and take was no longer apparent. Although still insistent that the' arbitration
'clause must go, it was now equally insistent that the no-strike clause must remain.
The respondent's assertion that it must thereafter remain "on top of the grievance
procedure" and its insistence upon unilateral powers on matters normally within
the collective bargaining relationship disclosed an attitude antithetical to true
collective bargaining which presupposes as its basis an equality of status of both
parties. Further indicia reflecting on the respondent's lack of intent to engage in
"the fair dealing which the service of good faith calls for" " are to be found in its
refusal' to retain in the contract the non-discrimination clause, to which it had
no objection other than that it was covered by State law, and in its refusal to
bind itself contractually to continue the paid holidays, although it recognized that
under the then existing law it was still obliged to continue that practice." Also
relevant, as bearing on the question of whether the respondent at that time was
genuinely interested in composing through collective bargaining processes its
differences with the Union and effecting a harmonious and stabilized bargaining
relationship, are the respondent's refusal to arbitrate the dispute concerning the
continued effectiveness of its old contract" and its rejection at the close of the
meeting of the Union's proposal to reduce to writing for purposes of a temporary
agreement the then existing plant practices.
ai The respondent' s argument that its new proposals were designed primarily to restore
practices and procedures deemed essential to its successful peacetime operations is not con-
vincing. Except for the suggested contract revisions governing transfer procedure, which
was initially proposed at the September 20 conference, the respondent did not specifically
explain the correlation of its new proposed changes to its peculiarly peacetime operations,
nor is such correlation apparent from the internal content of the new clauses proposed.
Moreover , it is significant that the previous negotiating conference , held on September 20,
was also a post-,,sar conference , and the new demands then injected were also explained
as post-war demands. The record does not reflect anything to indicate that conditions
had since so changed as to warrant the respondent in making an abrupt about face on
other contract clauses which as late as September 20 it had still regarded as acceptable.
84 Thus the new proposals contained a broadened "management-rights" clause , no longer
confined to transfers alone. The September 20 demands had continued to recognize,
although seeking to restrict, the principle of regular grievance meetings on company time.
This was now abolished altogether.
88 N. L. R. B. v. Pilling, supra, at p. 37.
84 See, N. L. R . B. v. Boss Manufacturing Co., 118 F. ( 2d) 187; Matter of Singer Mtg.
Co., supra.
35 See Matter of Carroll's Transfer Co., 56 N. L It. B. 935, 938.
BERGEN POINT IRON WORKS 1 103
None of these, circumstances constitutes. a per se violation: of the Act, nor,
standing alone, is determinative of bad faith. They must be evaluated, - how-
ever, cumulatively and in context with the respondent's entire course of conduct
of which they are part, reflecting its attitude and approach toward collective
bargaining with the Union from the beginning of the 1945 strike through the time
of the 1946 strike. When so viewed, they provided, it is found, persuasive evi-
dence that the respondent at the November 6 meeting was actuated more by a fixed
intent to penalize and discredit the Union for having gone on strike than by a
sincere purpose to endeavor to find a mutually. acceptable basis for agreement.
Such an attitude and approach are not consistent with good faith bargaining.
The record facts amply refute the respondent 's contention that the Union
refused to bargain in good faith with it subsequent to November 6, 1945. There
is no merit to the respondent's argument that "negotiation by the Union in good
faith was and would be impossible until either (a) the Union expressed in
writing its willingness to negotiate a new contract to be effective on the date
of its execution, or (b) the fact of the invalidity of the 1944 contract as extended
by the June 4, 1945, letter had been established by Court beyond possibility of
appeal ." Regardless of the continued validity of the 1944=1945 contract as ex-
tended, the Union's demand that the new contract be made effective retroac-
tively to the date of the expiration of the old presented a bargainable issue.
The requirement imposed by the respondent that the Union, agree in advance
of bargaining that the new contract be effective on the date of its execution, which
in effect called upon the Union to withdraw a proper demand as a condition to
further bargaining, was obviously inconsistent with the respondent's uncondi-
tional obligation to bargain on request with respect to any appropriate subject
of collective bargaining , and constituted in itself a refusal to bargain in good
faith as required by the Act 3° Nor was the pending dispute concerning the
continued validity of the old contract a necessary impediment to negotiations
for a new contract. Although, as the respondent claims, bargaining upon a new
contract may have resulted in introducing into the discussions "the collateral
issue of the existence of the 1944-1945 contract," the settlement of that collateral
issue was not a necessary prerequisite to the execution of a new contract!,
In any event, the respondent could not condition the Union's right to col-
lective bargaining upon the Union relinquishing its legal claim concerning the
matter of the old contract, any more than it could condition it upon the Union
dropping one of its bargaining demands. The issue as to whether the old con-
tract had been breached or terminated was itself a proper subject for collective
bargaining.' Thus, the respondent's rejection of the Union's unconditional re-
quest, contained in the Union's letter of May 2, 1946, that the respondent meet
with it for the purpose among others of ironing out the existing dispute con-
cerning the old contract, was a clear evasion of its bargaining obligations. The
as Matter of Winona Textile Mills, Inc., 68 N. L. R. B 702; Matter of Greater New York
Broadcasting Co., supra.
87 Since the original term of the old contract had already expired and the extension
agreement merely extended its provisions until a new agreement was reached , there was
no preliminary question to be disposed of as to whether there was a proper basis for negoti-
ating a new contract . Such cases as Matter of Lone Star Gas Co., 18 N. L . R. B. 420; and
Matter of Essex Wire Corporation , 19 N. L . R. B. 51, cited by the respondent 's counsel on
the motion to dismiss made at the close of the Board ' s case, are therefore not apposite.
" Matter of Rapid Roller Co., 33 N. L. R. B. 557, enf'd on that point, Rapid Roller Co. v.
N. L. R. B., 126 F. (2d) 452 ( C. C. A. 7 ) ; Matter of Lone Star Gas Co ., supra.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position which the respondent now takes, thatt itiwas justified in refraining froin
bargaining on this issue until the question had finally been resolved by costly and
time-consuming litigation is scarcely consistent with the basic purpose of the
Act that industrial disputes be settled by collective bargaining. Although there
had been apparently irreconcilable conflict between the parties on that point
at the November 6, 1945, meeting, 6 months had since elapsed and there had
been an intervening arbitration award which may have given the situation a
different complexion" The respondent was not required to agree, but it was
required to meet with the Union, to hear the Union's position, and to endeavor to
persuade the Union of the correctness of its own. If in fact agreement resulted,
the dispute would have been solved and the purposes of the Act satisfied. If
not, the parties were still free to pursue their legal remedies.
During the course of the second strike which began on August 16, 1946, and
here found to have been induced in substantial part and thereafter prolonged
by the respondent's prior refusals to bargain in good faith with the Union, the
respondent persisted in illegally conditioning further bargaining upon the Union
relinquishing its demand and claim noted above. In addition, the respondent
imposed, just as it had during the 1945 strike, the requirement that the em-
ployees abandon the strike as a condition tb b°argainiing: This constituted
a further refusal to bargain on the respondent's part. There is obviously ne
basis in fact for the respondent's contention that the Union at no time since
the commencement of, the strike has sought to bargain with the respondent.
This contention is effectively refuted by the undisputed evidence noted above-
relating to Neil's conversation with Smith shortly after the commencement of
the strike, Lipman's conversation with Kuebler following the decision in the
Pesano case, and Smith's conversation at about the same time with Conciliator
Brown, who, the record establishes, made clear that he was calling at the Union's.
request to arrange a meeting.
Upon the record as a whole, it is concluded and found that the respondent
on and after September 25, 1945, by its entire course of conduct since that date,
as well as by its specific conduct in refusing to bargain with the Union during
the 1945 and 1946 strikes unless and until the employees abandoned the strikes,
in refusing to negotiate on the issue of retroactivity at the November 6, 1945,
meeting and thereafter, in unilaterally effecting changes in wages and hours
of employment and thereafter refusing to bargain upon request of the Union
with reference thereto, and in conditioning bargaining with the Union upon the
Union first surrendering a bargaining demand and a legal claim, has refused
to bargain collectively with the Union as the exclusive representative of its em-
ployees in the appropriate unit, and has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
III
There is no substantial evidence in the record to support the allegation of
the complaint that the respondent has vilified, disparaged, and expressed dis-
approval of the Union. It will, accordingly, be recommended that this allegation
be dismissed.
39 See Jeffery-De Witt Insulator Co v. N L. R B , 91 F. (2d) 134, 139 (C C. A. 4).
BERGEN POINT IRON WORKS 1105
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON. COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the 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 of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Because of the basis of the respondent's refusal to bargain as indicated in
the facts found, and because of the absence of any evidence that danger of
other unfair labor practices is to be anticipated from the respondent's conduct
in the past, the undersigned will not recommend that the respondent cease and
desist from the commission of any other unfair labor practices. Nevertheless, in
order to effectuate the policies of the Act, the undersigned will recommend that
the respondent cease and desist from the unfair labor practices found and from
any other acts in any manner interfering with the efforts of the Union to negotiate
for or represent the employees as exclusive bargaining agent in the unit herein
found appropriate
In order to effectuate the policies of the Act where unfair labor practices have
been found, it is the usual practice to direct the respondent to post at its plant
and maintain for a period of 60 days notices to its employees that it will cease
and desist from such unfair, labor practices and take the affirmative action
ordered. The underlying purposes of the posting requirement will not be satisfied,
however, if the notices are posted in the plant at a time when, as was true at
the time of the hearing, the employees are engaged in a strike and plant opera-
tions are suspended. It will consequently be recommended, in the event that
the respondent has resumed plant operations at the time it is required to post
copies of said notice, that the usual practice be followed. However, if the re-
spondent's plant operations are still suspended in whole or in part as a result
of the strike at the time the respondent is required to post copies of said notice,
it is recommended that the respondent mail to each of the employees who was
employed by it during the last pay-roll period preceding the commencement of
the strike, a copy of the recommended notice, directed to him at his last known
address, and, in addition, that the respondent, upon the resumption of plant
operations, post and maintain at its plant for a period of 60 days beginning on
the date of such resumption, copies of said notice in the manner set out in the
"Recommendations." below.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Local 446, United Electrical, Radio & Machine Workers of America, affiliated
with the Congress of Industrial Organizations, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the respondent, including
guards and watchmen; employed at its Bayonne plant, exclusive of supervisory
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, constitute a unit appropriate fonitheEpurposes of collective bargaining;
within the meaning of Section 9 ( b) of the Act.
3. Local 446, United Electrical , Radio & Machine Workers of America, C. I. 0.,
was on April 14, 1943, and at all times thereafter has been the exclusive repre-
sentative of all ' employees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9 ( a) of the Act.
4. By refusing on September 25, 1945, and at all times thereafter , to bargain
collectively with Local 446, United Electrical , Radio & Machine Workers of
America, C . I. 0, as the exclusive representative of all its employees in the
aforesaid unit, the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( 5) of the Act.
5. 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 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
7. The respondent has not engaged in unfair labor practices by vilifying, dis-
paraging , and expressing disapproval of the Union.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the respondent,
Bergen Point Iron Works , and its officers , agents, successors and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with , Local 446 , United Electrical, Radio
& Machine Workers of America, C . I. 0., as the exclusive representative of all'
production and maintenance employees , including guards and watchmen, but
exclusive of supervisory employees, at its Bayonne , New Jersey , plant ;
(b) Engaging in any other acts in any manner interfering with the efforts of
Local 446 , United Electrical , Radio & Machine Workers of America, C . I. 0., to
negotiate for or represent , as their exclusive bargaining agent, the employees in'
the aforesaid bargaining unit.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with Local 446, United Electrical, Radio
& Machine Workers of America , C. I. 0, as the exclusive bargaining representa-
tive of all employees in the bargaining unit described herein with respect to rates
of pay, hours of -employment , or other conditions of employment, and if an under-
standing ' is reached , embody such ' understanding in a signed agreement ;
(b) Post at its plant at Bayonne, New Jersey, copies of the notice attached
to'the Intermediate Report herein marked "Appendix A." 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 the respondent
immediately upon receipt thereof and maintained by it for sixty ( 60) consecutive
days thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the
respondent to insure that said notices are not altered , defaced, or covered by
any other material . If upon receipt of said notice the respondent 's plant opera-
tions are suspended in whole or in part as a result of a then current strike of
BERGEN POINT IRON WORKS 1107
its employees the respondent shall, in -addition, mail a copy of said notice to
each of the employees who was employed by it during the last pay-roll period
preceding the commencement of the strike, directed to him at his last known
address, and shall also, upon the resumption of plant operations, post and
maintain, in the manner hereinabove provided, copies of the said notice in its
plant for a period of 60 days following such resumption of plant operations ;
(c) File with the Regional Director for the Second Region, on or before ten
(10) days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is_ further recommended that unless on or before ten (10) days from the
receipt of the Intermediate Report the respondent notifies said Regional Director
in writing that-it has complied with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
It is further recommended that the allegation of the complaint that the
respondent has vilified, disparaged and expressed disapproval of the Union,
be dismissed.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203.38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections as he relies
upon, together with the original and four copies of a brief in support thereof ;
and any party or counsel for the Board may, within the same period, file an
original and four copies of a brief in support of the Intermediate Report. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.65. As further provided in said
Section 203.39, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
ARTHUR LEFF,
Trial Examiner.
Dated February 11, 1947.
APPENDIX A
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
Relations Act, we hereby notify our employees that :
WE WILL Nor engage in any acts in any manner interfering with the efforts
of LOCAL 446 , UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA,
e
1108 DECISIONS OF NATIONAL ' LABOR. RELATIONS BOARD
C. I. 0., to negotiate for or represent the employees in the bargaining unit
described below.
WE WELL BARGAIN collectively upon request with the above-named union
.as the exclusive representative of all employees in. the bargaining unit,
described below with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
mnderstanding in a signed agreement. The bargaining unit is :
All production and maintenance employees including guards and watch-
men, but excluding supervisory employees.
BERGEN POINT IRON WORKS,-
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.