Betra Mfg. Co.

National Labor Relations Board - Board Decisions

Dec 13, 1977

233 N.L.R.B. 1126 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Betra Manufacturing Company and International
Association of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No. 93, Local Lodge
No. 504. Case 32-CA-64 (formerly 20-CA-11075)
December 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On July 28, 1977, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed cross-exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge2 and to adopt his recommended Order, as
modified herein.
We agree with the Administrative Law Judge for
the reasons fully stated by him that Respondent has
violated Section 8(a)(5) and (1) of the Act by failing
and refusing to bargain in good faith with the Union.
The General Counsel contends that the Administra-
tive Law Judge erred in failing to extend the
certification year, and in failing to provide an
extraordinary remedy.
With respect to the certification year, we agree with
the General Counsel's contention. We note that the
Union was certified on May 16, 1975, and, as stated
by the Administrative Law Judge, Respondent has
failed since that time to engage in good-faith
bargaining. We therefore find it appropriate to
extend the certification year for I year from the date
when Respondent begins to bargain in good taith
with the Union. Inasmuch as the unit employees
have been deprived of the benefits of the certification
year due to the overall bad faith exhibited by
Respondent during the course of negotiations, this
extension will insure that the employees in the
appropriate unit will be accorded the services of their
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard DryWall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Respondent has moved for dismissal of the complaint herein on various
233 NLRB No. 156
selected bargaining agent for a period provided by
law. Mar-Jac Poultry Company, Inc., 136 NLRB 785
(1962); Southern Paper Box Company, 193 NLRB 881
(1971).
With respect to the General Counsel's request for a
remedy like that ordered in Tiidee Products, Inc., 194
NLRB 1234 (1972), we find that the facts herein do
not warrant a full Tiidee remedy. In the Tiidee case,
we noted the need to keep crowded court and Board
dockets free from frivolous litigation and ordered an
employer who refused to meet and negotiate with the
certified representative of its employees to reimburse
the Board and the union for their costs and expenses
incurred in the investigation, preparation, presenta-
tion, and conduct of the case. Although we find all of
Respondent's contentions to be wholly lacking in
merit and/or unsupported by the record, we cannot
say that all of its defenses were patently frivolous.
Therefore, we deem it inappropriate to apply the
requested monetary remedy awarded in the Tiidee
case.
Contrary to our dissenting colleague, we do not
find this case to warrant the extraordinary remedy
requested by the General Counsel. In South Hoover
Hospital, 196 NLRB 1077 (1972), a case wherein a
Tiidee remedy was requested and denied, we ap-
proved the following language of Administrative
Law Judge Richard D. Taplitz:
I am reluctant to recommend such an order
where, as here, a small employer's first violation
of the Act may be attributable to its gross
ignorance of the labor laws rather than to its
calculated design to subvert them. I shall,
therefore, refrain from recommending such an
order .... [196 NLRB at 1081.]
We find the foregoing considerations are equally
applicable to Respondent here. Accordingly, we
would likewise refrain from imposing the monetary
remedy requested.
On the other hand, we find that certain other
remedial measures devised in Tiidee are appropriate
in the instant case. The Administrative Law Judge
found, and the record amply demonstrates, that
Respondent has failed, during the course of 22
negotiating sessions continuing over a 17-month
period, to engage in the good-faith bargaining efforts
required by Section 8(a)(5) and 8(d) of the Act, even
after voluntarily entering into a settlement agreement
constitutional grounds including, inter alia: the Board's failure to appoint
counsel for Respondent; the failure to grant Respondent a speedy trial; the
denial of Respondent's request for a trial by jury in a Federal court; the
impossibility of a fair judgment due to administrative bias; and the Board's
lack of jurisdiction. These motions are denied as lacking in merit. As to the
constitutionality of the National Labor Relations Act and this Board's
procedures thereunder, we refer Respondent to N.LR.B. v. Jones d
Laughlin Steel Corp., 301 U.S. 1 (1937).
1126
BETRA MANUFACTURING COMPANY
in which it agreed to do so. Respondent has thereby
displayed a total disregard for the rights of its
employees to enjoy the fruits of their representation
by the good-faith negotiation of a contract. Thus,
Respondent has effectively prevented its employees
from realizing the benefits of their election choice.
Merely to refer the parties back to the bargaining
table, without more, is not an adequate remedy.
Under these circumstances, we conclude that some
additional measures are necessary to assure the
employees a continued and informed communication
with their elected representative. Therefore, we shall
order that Respondent, in addition to the remedy
ordered by the Administrative Law Judge, mail the
attached notice to all unit employees, grant the
Union reasonable access to its bulletin boards, and
make available to the Union a list of the names and
addresses of all unit employees to be kept current for
a period of 1 year.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Betra Manufacturing Company, San Jose,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Upon request, bargain collectively in good
faith with the above-named labor organization as the
exclusive representative of all Respondent's employ-
ees in the appropriate unit described below and, if an
agreement is reached, embody such understanding in
a signed agreement. Respondent's obligation to
bargain with the Union shall extend for I year from
the date it first commences to bargain in good faith.
The unit is:
All employees employed by the Employer at its
San Jose, California facility; excluding profes-
sional employees, salesmen, guards, office clerical
employees, and supervisors as defined in the
Act."
2. Insert the following as paragraphs 2(b), (c), and
(d) and reletter the subsequent paragraphs accord-
ingly:
"(b) Mail a signed copy of the attached notice
marked "Appendix B" to each of its employees in the
3 In Crystal Springs Shirt Corporation, 229 NLRB 4 (1977), a case
wherein an employer similarly delayed contract conclusion through surface
bargaining, I indicated that I would grant the union reimbursement for
above-described unit immediately upon receipt
thereof from the Regional Director for Region 32.
"(c) Upon request of the Union, made within I
month of the date of this Decision, immediately
grant the Union and its representatives reasonable
access, for the period of the collective-bargaining
negotiations, to its bulletin boards and all places
where notices to employees are customarily posted.
"(d) Upon request of the Union, made within I
month of the date of this Decision, make available to
the Union a list of the names and addresses of all
unit employees currently employed and keep such
list current for a period of I year thereafter."
3. In paragraphs 2(e) and (f), substitute the words
"Region 32" for "Region 20."
4. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER MURPHY, dissenting in part:
I agree with my colleagues' findings and conclusion
that Respondent violated Section 8(a)(5) of the Act
by engaging in surface bargaining without any real
intent of reaching a contract accord. However, unlike
my colleagues, I agree with the General Counsel that
something more than our usual remedial order is
necessary in the circumstances here, and I would
therefore grant his request for an extraordinary
remedy. Where an employer continually circumvents
the possibility of finalizing extended contract negoti-
ations by insisting on contract provisions which
would effectively emasculate the Union as the
bargaining representative of its employees, particu-
larly after it has failed to comply with the terms of an
earlier settlement agreement, I would find an
extraordinary remedy to be warranted. 3
The Administrative Law Judge, in his findings
adopted herein, concluded that Respondent entered
into contract negotiations with an intent to subvert
the bargaining process, announced to the Union that
such was its intention, and, by its conduct in the
ensuing 22 meetings with the Union, insured the
intended result. At the initial bargaining session
where it announced that it would give up no
prerogatives which were management's prior to the
Union's certification, and that the end result would
be the same as before the Union was elected,
Respondent made manifest its intention to negate the
election choice of its employees. It then proceeded in
a 17-month attempt to do so.
Respondent was consistent throughout the bar-
gaining in insisting on nonmandatory subjects and
on provisions inherently repugnant to any union
seeking responsibly to represent the employees. Such
expenses incurred as a result of the respondent's unfair labor practices. I
would likewise do so here.
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
items included a provision requiring the Union to
post a performance bond to assure payment of
liquidated damages in the event of breach of a no-
strike clause, a provision automatically invalidating
the contract if there were any change in the Union's
constitution, bylaws, or affiliation, and a provision
likewise invalidating the contract if there were any
change at all in Respondent's ownership. Respon-
dent additionally insisted on items which are in
direct conflict with the bargaining obligation. Thus,
throughout the 22 bargaining sessions Respondent
continued to insist on such contract provisions as,
inter alia, the unilateral right to change wages by 10
percent, the unilateral right to change virtually all
terms and conditions of employment and work rules,
and a provision requiring the Union to prove its
majority status each year before entering into new
contract negotiations. The impact of such provisions
would essentially be to overrule the Board's certifica-
tion of the Union as the employees' duly selected
bargaining representative. Further, by entering into a
settlement agreement on April 27, 1976, with which it
subsequently failed to comply, Respondent both
delayed remedial action against it and denied its
employees the benefits of their bargaining represen-
tative for an additional year.4
In denying the General Counsel's request for a
Tiidee remedy, the Administrative Law Judge opined
that Respondent's flagrant unfair labor practices
would not be adequately remedied by the customary
imposition of a bargaining order and the posting of a
notice. He found, however, that the Tiidee case is
factually distinguishable and that no other Board
precedent exists to support such a remedy. My
colleagues on the majority, by adopting the Adminis-
trative Law Judge's denial of an extraordinary
remedy for lack of precedent, thereby again fail to
create such a precedent. I would not.
While my colleagues recognize that merely sending
the parties back to the bargaining table is not an
adequate remedy in the circumstances here, they
nonetheless "deem it inappropriate to apply the
requested monetary remedy awarded in the Tiidee
case." Yet this Respondent has depleted the Union's
time and financial resources, as well as expended the
time of Federal mediators and this Agency, in its
duplicitous bargaining charade. The depletion of
such resources, in conjunction with the denial of
employee rights and the resultant weakening of the
newly selected Union's position vis-a-vis the employ-
ees it represents, are, in my view, at least as egregious
as refusing to meet with the union at all as did the
respondent in Tiidee. In light of Respondent's
demonstrated hostility toward the Union and the
concept of collective bargaining, and its failure to
comply with the previous settlement agreement, I do
not think it likely that Respondent will return to the
bargaining table and bargain in good faith without
some more compelling remedy. Therefore, in order to
more fully effectuate the policies of the Act, I would
grant the remedy requested by the General Counsel. 5
Accordingly, in addition to the remedial provisions
granted by the majority, I would require Respondent
to reimburse the Board and the Union for all costs
and expenses incurred in the investigation, prepara-
tion, presentation, and conduct of the case. I would
also require Respondent to reimburse the Union for
its costs incurred during the course of its collective-
bargaining negotiations with Respondent, as request-
ed by the General Counsel.
4 The Regional Director withdrew approval of the settlement agreement
on October 21, 1976, and issued an amended complaint on March 3, 1977.
5 This is not to say that every surface bargaining case would justify the
imposition of an extraordinary remedy. However, in this case and in the
circumstances described above, I think it is appropriate.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
You will recall that we have previously posted a
notice similar to this one wherein we made a
commitment to you to obey the law. After a formal
hearing at which all parties had an opportunity to
present evidence and state their positions, it has been
decided by the National Labor Relations Board that
we did not live up to our promises contained in the
first notice, and that we have continued to violate the
National Labor Relations Act. Therefore, we have
been ordered to post this notice. We are hereby
ordered to advise you that we intend to honor the
commitments made to you in this notice. In the event
that we do not, we may thereby become subject to
substantial monetary fines and other sanctions
imposed by a United States Court of Appeals until
our obligation to you under the law is satisfied.
The Act gives all employees the following rights:
To engage in self-organization
To form, join, or assist unions
To bargain collectively through represen-
tatives of their own choosing
To engage in activities together for
purposes of collective bargaining or other
mutual aid or protection
To refrain from any or all such activities,
except to the extent that the employees'
bargaining representative and an employer
have a collective-bargaining agreement
1128
BETRA MANUFACTURING COMPANY
which imposes a lawful requirement that
employees become union members.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT refuse to bargain collectively in
good faith with International Association of
Machinists and Aerospace Workers, AFL-CIO,
District Lodge No. 93, Local Lodge No. 504, as
the exclusive representative of our employees in
the appropriate unit described below concerning
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
WE WILL NOT insist that the Union post a
security bond as a condition to our entering into a
collective-bargaining agreement with the Union.
WE WILL NOT insist to the point of impasse on a
proposed management rights clause or other
clauses granting us the unilateral right to deter-
mine hours of work, working conditions, merit
increases, and other terms and conditions of
employment in the unit described below.
WE WILL NOT insist to the point of impasse on a
collective-bargaining contract clause which would
nullify the entire collective-bargaining agreement
in the event of a change in the Union's affiliation,
constitution, or bylaws.
WE WILL NOT insist to the point of impasse on a
contract clause granting us the unilateral right to
make and change work rules affecting employees'
condition of employment.
WE WILL NOT otherwise engage in surface
bargaining or other collective bargaining not in
good faith, without real intention to reach a
meaningful collective-bargaining agreement with
the Union.
WE WILL, upon request, meet and bargain
collectively in good faith with a duly authorized
representative of the Union concerning our
employees' rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. Our obligation to bargain with the Union
shall extend for 1 year from the date we first
commence bargaining in good faith. The unit is:
All employees employed by the Employer at
its San Jose, California facility; excluding
professional employees, salesmen, guards,
office clerical employees, and supervisors as
defined in the Act.
WE WILL mail a signed copy of this notice to all
our employees in the appropriate bargaining unit.
WE WILL, upon request, grant the Union
reasonable access to our bulletin boards during
contract negotiations.
WE WILL, upon the request of the Union,
immediately give to the Union a list of the names
and addresses of all our employees in the
appropriate bargaining unit, and WE WILL keep
the list current for a period of I year.
BETRA MANUFACTURING
COMPANY
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in San Jose, California, on March 17
and 18, and April 4, 1977. The initial charge was filed on
February 4, 1976, by International Association of Machin-
ists and Aerospace Workers, AFL-CIO, District Lodge
No. 93, Local Lodge No. 504 (herein called the Union). An
amended charge was filed by the Union on March 3, 1976.
The initial complaint, issued March 31, 1976, alleges
violations of Section 8(aX5) and (1) of the National Labor
Relations Act, as amended (herein called the Act). On
April 27, 1976, the Regional Director for Region 20 of the
National Labor Relations Board (herein called the Board)
approved an all-party settlement agreement and withdrew
the complaint and notice of hearing. Thereafter, on
October 21, 1976, the said Regional Director issued an
order withdrawing approval of settlement agreement,
reinstating complaint, and notice of hearing, as a result of
Respondent's alleged failure to discharge its obligations
under the settlement agreement. On March 3, 1977, an
amended complaint was issued, alleging violations of
Section 8(a)(5) and (1) of the Act. Respondent's answers to
the complaint and amended complaint, duly filed, deny the
commission of any unfair labor practice.'
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to
introduce relevant evidence. Since the close of the hearing,
briefs have been received from the General Counsel and
from Respondent.
Upon the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following:
I Respondent's answer to the amended complaint contains a request for
appointed counsel as a result of professed inability to afford counsel; for a
trial by jury; for a trial by a Federal court; for direct appeal from the
Administrative Law Judge's decision to a Federal court rather than to the
Board; and for dismissal of the matter as a result of failure to be accorded a
speedy trial. These requests, renewed by Respondent at the hearing, were
denied. Thereafter, Respondent filed a motion with the United States
District Court for the Northern District of California seeking relief from
certain adverse rulings of the Administrative Law Judge, namely, the failure
to appoint counsel and grant Respondent a trial by jury. On April 8, 1977,
the court issued its judgment summarily denying Respondent's petition. On
June 30, 1977, Respondent filed with the court both a notice of appeal and a
motion requesting extension to file late notice of appeal. These documents
are currently pending before the court, no disposition thereof having been
made to date.
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
Respondent is a sole proprietorship engaged at its San
Jose, California, facility in the business of manufacturing
nonferrous castings and machine metal parts. Record
evidence establishes that in the course and conduct of its
business operations during calendar year 1975, Respondent
sold goods and supplies valued in excess of $50,000 to firms
within the State of California, which firms, during calendar
year 1975, met the Board's applicable direct outflow
jurisdictional standards for the assertion of jurisdiction. I
therefore find that Respondent is an employer engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was stipulated by Respondent at the hearing that the
Union is, and has been at all times material herein, a labor
organization with the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issue
The principle issue raised by the pleadings is whether
Respondent, by its overall course of conduct in contract
negotiations, has refused to bargain collectively in good
faith with the Union, the certified collective-bargaining
representative of Respondent's employees, concerning
wages, hours of work, or other terms and conditions of
employment.
B. The Facts
1. Background
Respondent is a sole proprietorship engaged in the
business of manufacturing nonferrous castings and ma-
chine metal parts, with its office and place of business
located in San Jose, California. Respondent's customary
employee complement totals six to eight employees. On
April 11, 1975, the parties entered into a Stipulation for
Certification upon Consent Election in Case 20-RC-12685,
and pursuant thereto a representation election was held on
May 8, 1975, at which time a majority of Respondent's
employees in the agreed-upon unit 2 designated and
selected the Union as their exclusive collective-bargaining
representative. Thereafter, on May 16, 1975, the then
Acting Regional Director certified the Union as the
exclusive collective-bargaining representative of Respon-
dent's employees in the aforementioned appropriate unit.
2 All employees employed by Respondent at its San Jose, California,
facility, excluding professional employees, salesmen, guards, office clerical
employees, and supervisors as defined in the Act.
3 "Agreement by and between ----- , party of the first part,
hereinafter referred to as the Employer, and International Association of
Machinists and Aerospace Workers, District Lodge No. 93, party of the
second part, hereinafter referred to as the Union."
2. The negotiations - June 9, 1975, through
January 19, 1976
On May 23, 1975, Union Business Representative John
DeCarli sent Respondent a letter requesting the com-
mencement of negotiations, and enclosed as an initial
proposal the then current 1974-77 Independent Machine
and Manufacturing Agreement between the Union and
approximately 100 employers in Santa Clara County, the
county in which Respondent's facility is located. Through-
out the entire course of bargaining DeCarli, for the Union,
and Mark J. Thomas, for Respondent, remained the
principal spokesmen for the parties. Other business
representatives, sometimes accompanied by unit employ-
ees, also attended the bargaining sessions on behalf of the
Union, while Respondent's foremen would often attend
negotiations on behalf of Respondent. Various other unit
employees would also attend negotiations, however, the
record does not disclose whether their interests were
specifically aligned with one party or the other, or whether
they were merely impartial observers. The first set of
negotiations, prior to the settlement agreement, com-
menced on June 9, 1975, and consisted of 13 negotiating
sessions as follows: June 9 and 16, July 14 and 28, August
5, 18, and 25, September 5 and 24, and October 6 and 21,
1975, and January 5 and 19, 1976.
DeCarli commenced the June 9, 1975, session by asking
Thomas whether he had looked over the aforementioned
proposed Independent Machine and Manufacturing
Agreement previously submitted to Respondent. Thomas
replied that he had looked it over "and it stinks," adding
that, "You will never get me to sign any contract." The
tenor of negotiations having thus been immediately
established, DeCarli proceeded to engage Thomas in a
discussion of each contract proposal seriatun
Thomas objected to the proposed introductory para-
graph3 and purpose of agreement,4 stating that there was
no need for such language, and quickly dismissed the
proposed standard union-security clause with the remark,
"You will never get me to sign a contract with the union
security clause in it." The Union's wage proposal contained
hourly rates of pay for various job classifications. Thomas
objected to this stating that he would be the sole judge of
the wages which Respondent would pay. Regarding an
apprenticeship training provision whereby the employer
would give employees an opportunity to acquire additional
skills thus qualifying them for higher pay classifications,
Thomas expressed his opinion that such a provision
"stinks" and that the Union should provide all such
training. Thomas further stated, when confronted with the
respective applicable proposals, that he would not agree to
contract seniority provisions as he did not philosophically
believe in the principles of seniority; that he may or may
not provide more than 2 weeks' vacation with pay after 10
years of service depending upon the particular employee in
question; that although he currently provided his employ-
4 "Purpose of Agreement. The purpose of this Agreement is to promote
continuity of friendly relations between the Employer and the Union and to
define wages, hours and conditions of employment for employees covered
by this agreement."
1130
BETRA MANUFACTURING COMPANY
ees with the paid holidays enumerated in the contract, he
did not want such a clause included in the contract and
that if a particular employee did not deserve a paid holiday
Thomas retained the right to refuse such payment; that the
contract's union activity clause, assuring nondiscrimina-
tion for engaging in union activity and additionally
containing provisions regarding Respondent's recognition
of shop stewards, was unacceptable; that he would allow
authorized business representatives access to the plant for
the purpose of carrying out the terms of the agreement, if at
all, only during employees' lunch breaks; and that the
Union .would not be given bulletin board privileges at the
plant.
During the discussion of the proposed management
rights clause contained in the Union's proposal Thomas
stated that he desired certain nonunit employees, including
the plant foreman, to perform unit work. When DeCarli
stated that they would thereby have to join the Union,
Thomas stated, "there is nobody in my plant that is going
to join the Union." The remainder of the contract
provisions were discussed, Thomas refusing to agree to any
item. In addition, Thomas stated that he was interested
only in a I-year contract. DeCarli requested that Thomas
submit counterproposals and asked for a list of Respon-
dent's employees along with their classifications and rates
of pay.
The next meeting was held on June 16, 1975. The
Union's proposals were again discussed, Thomas agreeing
to none of them. Thomas furnished the Union with a list of
Respondent's current employees and their hourly rates of
pay. In addition, Thomas made wage and classification
proposals, establishing a "wage range" for each classifica-
tion within the foundry and machine shop, the range for
each classification varying between $1 to $2 per hour.
Thomas stated that he would unilaterally determine the
specific rate of pay for each employee within the given
range.
The next meeting was held on July 14, 1975. At this
meeting Thomas furnished DeCarli with a written list of
factors which Thomas would consider in unilaterally
establishing an employee's wages within the aforemen-
tioned wage range, namely, quality of work, quantity of
work, dependability, job knowledge, cooperation, initia-
tive, attitude, safety habits, attendance, working condi-
tions, learning ability, adaptability, physical conditions,
and personal habits. DeCarli suggested that the services of
the Federal Mediation and Conciliation Service (FMCS)
be utilized by the parties during further negotiations, but
Thomas saw no need for such intervention at that time.
At the July 28, 1975, meeting Thomas handed DeCarli a
list of the current employees, then six in number, their
wage rates and dates of hire. This document, when
compared with the wage rates furnished the Union on June
16, shows that three employees received a 25-cent-per-hour
wage increase between June 16 and July 28.5 Further,
Thomas submitted a proposed management rights clause6
which, in effect, operated as a complete retention of
s There is no complaint allegation in this regard.
6 Additions to this clause were made by Thomas dunng the course of
bargaining, the final clause appearing in the document attached hereto as
"Appendix A."
virtually all matters pertaining to employees' wages, hours,
and working conditions as sole prerogatives of manage-
ment, which matters, according to the proposal, would not
be subject to a contract grievance procedure. Thomas
stated that this clause was not yet complete, and that he
intended to make additions to it as bargaining progressed.
Thomas agreed at this meeting to a union-proposed "non-
discrimination" clause providing for mutual cooperation in
establishing and maintaining equal employment opportuni-
ty and affirmative action programs.
At the next meeting, August 5, 1975, Thomas made
additional proposals: an introductory paragraph stating
the names and addresses of the parties to the agreement;
an overtime proposal defining the workweek and providing
for time and a half after 40 hours of work during the
workweek; and a revised management-rights clause which
specified nine additional areas as "unilateral rights" of
management.
The meetings of August 18 and 25, 1975, were apparently
of brief duration and uneventful. Thomas was unable to
attend the August 25 meeting, and DeCarli met with
Respondent's foremen on that occasion. The next meeting
was held on September 5, 1975. Thomas handed DeCarli
an illegibly typewritten vacation proposal that had to be
read through a mirror. DeCarli pointed out this difficulty
to Thomas and Thomas treated the matter as a joke stating
something to the effect that it could be deciphered. DeCarli
then took the proposal to the restroom and read it with the
use of the restroom mirror.7 DeCarli stated his belief that
Thomas was engaging in stalling tactics and suggested the
services of a Federal mediator.
At the next meeting, September 24, 1975, Thomas
handed DeCarli a proposal for a complete contract and
stated that the Union had to accept it in its entirety by
October 5, 1975, giving no reason to DeCarli for this
demand. Thomas said he had changed his mind about his
prior proposals, and that they had been superseded by the
current proposed contract. During discussions of Respon-
dent's proposal, which contained no contract grievance
procedure, Thomas acknowledged that the Union had the
right to take all grievances to "the proper courts."
However, DeCarli objected to this verbal proposal and
insisted upon an appropriate grievance procedure. Regard-
ing Respondent's management rights proposal, Thomas
added two additional unilateral rights of management and
stated that the management rights clause could be used to
nullify any section of the contract. Respondent's proposal
included an "open shop" provision; a provision specifying
that classification of employees and their wages would be
determined by management based on merit within wage
ranges varying between S1 and $3 per hour; a provision
that all wage rates may be lowered by management 10
percent due to business conditions or the competitiveness
of the labor market upon giving the Union and the
employees 10 days' notice; a no-strike, no-lockout provi-
sion, with liquidated damages of $50 per day per employee
should this provision be breached; a provision whereby if
7 While Thomas, at the hearing, stated that the printing had been
inadvertently reversed as a result of the carbon being incorrectly inserted in
the typewriter, he offered no explanation for failing to offer DeCarli the use
of the original.
1131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's "ownership" changes in any respect the
contract becomes null and void; a provision nullifying the
contract if there is any change in the Union's constitution,
bylaws, or affiliation; and a proposed I-year term of
agreement.
The Union voiced its objection to the $50-per-employee
liquidated damages provision in the event of a strike or
work stoppage and said the Respondent would have to go
to court to collect such damages. Regarding the ownership
clause, DeCarli asked Thomas whether, if Thomas sold, for
example, I percent of the company to his son or foreman,
this would constitute a change in ownership of sufficient
magnitude to set aside the contract. Thomas stated that
DeCarli's interpretation was accurrate, and also said that
any change in the IAM constitution, under which the
Union operates, would nullify the contract.
At the October 6, 1975, meeting, Thomas withdrew
Respondent's contract proposal of September 24, 1975, for
the reason that it had not been accepted by the requisite
deadline, and submitted a new contract. Once again
Thomas imposed a new deadline, giving the Union until
October 16, 1975, to accept the contract in its entirety, and
stating that no section thereof could be changed or even
discussed. DeCarli asked Thomas about the language
discussed at the previous meeting regarding the Union's
right to take any grievance to an appropriate court, which
language was absent from the current proposal, and
Thomas stated that such language was no longer being
proposed. Thomas had deleted the vacation section which
appeared in Respondent's prior proposal and said that this
item would be handled under "work rules." 8 Similarly,
Thomas stated that the matters of holidays and attendance
requirements, also not included in Respondent's proposal,
would be subject to the work rules concept and would
therefore be outside the contract.
Respondent's October 6, 1975, contract proposal, in
addition to the liquidated damages provision contained in
the preceding proposal, contained a demand for the
Union's posting of a $10,000 security bond.9 DeCarli said
the Union would never post a security bond, and again
asked that Thomas agree to the services of a Federal
mediator, Thomas apparently agreeing to such request.
The next meeting was held on October 21, 1975. A
Federal mediator was present. Thomas announced that
Respondent's October 6, 1975, proposal was no longer on
the table as the Union had not signed it by the required
date. Thomas further stated that as he intended to never
agree to any union proposals, there remained, at the time,
no proposals from either party on the table warranting
further discussion. In an effort to make some initial
progress, DeCarli withdrew the Union's proposals on sick
leave, dental plan, and pension plan, and stated that such
contract items would not thereafter be sought by the
Union. Thomas did not respond. DeCarli said that the
Union was available and willing to meet with Respondent
8 The basis of Respondent's work rule concept was that Respondent
wanted the unilateral right to institute and modify work rules and that such
rules would not be included in or contemplated by the collective-bargaining
agreement. Thomas apparently believed that work rules would be defined as
any matter whatsoever, including any item concerning employees' wages,
hours, and conditions of employment.
9 The applicable proposed contract language is as follows: "Since, at the
at any time on any day, and Thomas seized upon this
statement and retorted, "Okay, we will meet New Year's
day." The Union felt compelled to agree, but the meeting
date was later changed to January 5, 1976, apparently by
FMCS.
At the January 5, 1976, meeting, also attended by the
Federal mediator, Thomas announced that he had no
proposals to make and stated that he had told his
employees that although they voted for union representa-
tion there would be no changes whatsoever in employees'
working conditions or anything else as a result of
bargaining with the Union.
Again at the next meeting, January 19, 1976, Thomas
said that he had nothing to offer or propose, that he would
never accept any union proposals, and that future meetings
would not be productive but rather would occasion even
more stringent proposals by Respondent. DeCarli said that
the Union had no alternative but to file an appropriate
charge with the Board.
3. The settlement agreement and efforts to obtain
compliance therewith
Subsequent to the filing of the charge on February 4,
1976, an informal all-party settlement agreement was
approved by the Regional Director for Region 20 on April
27, 1976. The settlement agreement provides, in substance,
that Respondent will not refuse to bargain collectively in
good faith with the Union; will not insist that the Union
post a security bond as a condition to entering into an
agreement; will not insist to the point of impasse upon a
proposed management rights clause granting Respondent
the unilateral right to determine hours of work, working
conditions, merit increases, and other terms and conditions
of employment; will not insist to the point of impasse on a
contract clause which would nullify the entire contract in
the event of a change in the Union's affiliation, constitu-
tion or bylaws; and that Respondent will meet and bargain
with the Union in good faith concerning employees' rates
of pay, wages, hours of employment, and other terms and
conditions of employment.
In order to effectuate compliance, the Compliance
Officer of the Regional Office sent the parties a letter,
dated May 3, 1976, requesting on a regular, continuing
basis detailed information regarding the parties' ensuing
bargaining negotiations. The Compliance Officer directed
further letters to Respondent, stating, inter alia, that it
appeared Respondent was not bargaining in good faith but
rather was obstructing the bargaining process, and was
putting itself in the unfortunate position of causing the
settlement agreement to be vacated and the complaint
reinstated. In addition, the Compliance Officer suggested
that Respondent seek competent assistance, including the
services of FMCS.
meeting of Sept. 24, Dwight Reed of the Union negotiating team stated that
we would be required to sue to collect any money due under this section it is
therefore required that the Union deliver at the time of the contract signing
a bond in the amount of S 10,000 to be paid to Betra Mfg. Co. In the event
that within 10 days after demand is made for payment and it is not paid, the
bonding company will pay the amount required within 10 additional days."
1132
BETRA MANUFACTURING COMPANY
As mentioned previously, by order dated October 31,
1976, the Regional Director's approval of the settlement
agreement was withdrawn and the original complaint and
notice of hearing was reinstated.
4. The continued negotiations - May 25 through
November 3, 1976
Upon the filing of the charge negotiations were discon-
tinued and were not resumed until May 25, 1976,
subsequent to the approval of the settlement agreement.
Thereafter the parties, represented by the same individuals,
met and bargained on the following dates: May 25, June 7
and 22, July 6, August 5 and 30, October 12 and 19, and
November 3, 1976.
At the outset of the May 25, 1976, meeting, DeCarli
handed Thomas the Union's original proposal, consisting
of the 1974-77 Independent Machine and Manufacturing
Agreement, stating the Union's position that as a result of
the settlement agreement bargaining would begin anew,
and that the Union desired to once again discuss each
section of the proposed agreement. Thomas said that he
had already seen the contract and that there was no need to
meet if the Union had no other proposal. Despite Thomas'
opposition, the parties apparently proceeded to discuss the
contract. Thomas proposed an introductory paragraph
acceptable to the Union, containing the parties respective
names, and, at one point during the meeting Thomas was
asked to initial or sign off that section. Thomas declined,
stating that he might want to change the language as
negotiations proceeded, that agreement on all items was
tentative, and that no portion of the contract would be
finally agreed to until agreement was reached on an entire
contract. Thomas rejected the proposed "Purpose of
Agreement" section; proposed an "open shop" clause;
rejected the Union's wage proposal and renewed the
identical wage proposal advanced by Respondent during
the presettlement bargaining; and rejected the Union's
training proposal stating that he would never agree to a
training program and that it was the Union's job to train
employees. DeCarli requested Thomas to prepare and
furnish at the next meeting counterproposals to each
section of the Union's proposals. Thomas refused to do so.
The next meeting was held on June 7, 1976. DeCarli
stated that he had received a copy of a particular letter
from the Compliance Officer to Thomas, and asked
Thomas whether, as suggested by the Compliance Officer,
he was going to request bargaining assistance from FMCS.
Thomas said no. DeCarli reiterated that the Union agreed
to the introductory language proposed by Thomas at the
previous meeting and requested Thomas to sign off that
item. Thomas again said he would not sign anything off,
and that all items would be subject to change until final
agreement was reached. Thomas stated that he was
continuing to negotiate because he had been threatened by
the NLRB and that he was innocent of past bad-faith
bargaining. DeCarli again proposed the aforementioned
"Purpose of Agreement" clause, and Thomas replied that
such was unnecessary. However, Thomas suggested other
language which was unacceptable to the Union. Thomas
refused to agree to sign off the jurisdiction section of the
contract even though the Union tentatively agreed to
Respondent's jurisdictional proposal, Thomas again stating
that he did not want to sign anything as he may want to
change it later.
DeCarli stated that, pursuant to instructions from the
Compliance Officer, Thomas was required to submit
written proposals. Thomas said that the NLRB didn't
know what it was doing, that the law does not require
written proposals and he wasn't about to submit any, and
that the NLRB was union oriented and he had no chance
of getting a fair shake. Further, Thomas made a profane
utterance regarding the Compliance Officer and stated the
only real authority the NLRB had over him was to take
him to Federal court.
At the next meeting, June 22, 1976, Thomas reiterated, in
response to the Union's request for a seniority clause, that
he would never agree to a seniority clause; that vacations
would be included in Respondent's work rules and would
therefore not be a part of the collective-bargaining
agreement; that holidays would also be included in the
work rules so that he could have the flexibility to
unilaterally determine who would receive holiday pay; and
that, in addition, leaves of absence would be treated under
work rules. Thomas further said he would not recognize
shop stewards. DeCarli suggested that since Thomas
continued to insist upon putting such important matters
concerning wages, hours, and working conditions outside
the operative provisions of the contract, Respondent
should make a definitive proposal in this regard, and
requested that Thomas propose language establishing a
committee of employees and representatives of the compa-
ny to jointly determine the work rules. Thomas suggested
that the Union prepare such language, and DeCarli agreed
to do so. Thomas said his wage proposal remained the
same as previously submitted, namely, that wages would be
subject to a merit system under Thomas' unilateral control,
and would also be governed by the supply of and demand
for labor in the market place.
At the July 6, 1976, meeting, DeCarli proposed language
establishing a work rules committee. The committee was to
consist of two individuals selected by the employees and
two individuals selected by Respondent, and would
establish work rules applicable to all employees. Thomas
said the proposal appeared satisfactory but that he
contemplated some changes and would reply at the next
meeting. Regarding the Union's proposal on shop ste-
wards, Thomas felt his shop was not large enough to
warrant the services of a shop steward. DeCarli assented to
this, and agreed to withdraw the said proposal. Thomas
refused to allow the union bulletin board privileges, stating
that the bulletin board was cluttered enough with state and
Federal regulations and that the Union could contact the
employees by mail. Thomas objected to the Union's
proposal on plant visitation, stating that it was improper to
interrupt employees' work during working hours, but
proposed language permitting contact with employees
before or after working hours or during the employees'
lunch break.
At the August 5, 1976, meeting, Thomas rejected the
Union's work rules proposal, stating that while employees
could participate and suggest ideas on their own time, he
wanted to reserve to himself the sole right to make the final
1133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision regarding the work rules to be established.
DeCarli stated that this was unacceptable, and that he had
been led to believe by Thomas at the prior meetings that
employees would have a substantial voice in the work rules
to be established. Thomas stated that the 60-day notice
posting period required by the settlement agreement had
expired, and that he was therefore required to make no
further reports to the Compliance Officer. He enumerated
three methods of bringing an end to negotiations, namely,
the Union sending a letter to Respondent disclaiming
interest in representing Respondent's employees; the
employees sending a letter to both Respondent and the
Union stating that they no longer desired representation;
and a decertification election. DeCarli stated that the
expiration of the notice posting period did not relieve
Respondent of its bargaining obligation. Thomas replied
that was a bunch of bull and he did not have to negotiate
further.
Thomas again refused to negotiate contract language
regarding vacations, stating that he would not agree to
anything in the contract obligating him to pay specific
amounts for vacation pay. Elaborating, Thomas said that if
he felt he was not financially able to pay employees their
vacation pay he wanted the unfettered right to refuse to do
so, and that, therefore, vacations would be covered by
work rules, rather than under the contract. DeCarli asked
Thomas what he thought negotiations were all about.
Thomas replied that no matter what happens in negotia-
tions he would not surrender any of the prerogatives of
management that he had enjoyed prior to the Union, that
negotiations would not result in any changes from those
conditions existing previously, and that he was not going to
place a financial burden on Respondent by agreeing to
monetary provisions on a long term contract basis, but
rather would include such matters in work rules thus
avoiding any enforceable financial obligation.
At the August 30, 1976, negotiating session, in the
presence of a Federal mediator, DeCarli announced to
Thomas that, in the interest of reaching a speedy resolution
of the matter, the Union was withdrawing numerous items
from its original proposal. Thereupon DeCarli handed
Thomas a contract proposal from which had been deleted
union proposals regarding area uniformity; training; shift
premium; reporting, minimum and callback pay; shift
transfers; traveltime; leaves of absence; bulletin boards;
ownership obligation; voluntary plant shutdown; jury
duty; pension; and cost of living. There was considerable
discussion of the Union's revised contract proposal, and
apparently, some areas of general agreement. Thomas
stated that he would not agree to the proposed arbitration
clause because he did not like arbitrators, and requested
that under the proposed validity of agreement clause any
reference to governmental agencies should be deleted
because he disliked governmental agencies. No items were
10 Prior to this time there had apparently been a similar petition filed
with the Board. The petition was apparently dismissed by the Regional
Office and the appeal of the dismissal denied by the Board.
"L The text of the five items in dispute is set out in "Appendix A"
attached hereto.
12 Theretofore the Regional Director had withdrawn approval of the
settlement agreement and had reinstated the original complaint.
specifically agreed to at the meeting, and Thomas stated he
would submit counterproposals at the next meeting.
The next meeting occurred on October 12, 1976. A
Federal mediator was again present. On September 21,
1976, Thomas had brought a contract proposal to DeCar-
li's office, and at the October 12, 1976, meeting DeCarli
asked Thomas if the submitted proposal was a final
proposal or whether Thomas would be willing to engage in
further negotiations. Thomas stated that he was there to
negotiate, and DeCarli replied that he was not interested in
wasting any more time and wanted to quickly reach
agreement. Thereupon, DeCarli agreed to approximately
24 items in Respondent's proposed contract, requested
certain additional changes, and asked that another meeting
be scheduled as soon as possible to wrap up the agreement.
At the next meeting, on October 19, 1976, Thomas
submitted a proposal incorporating some of the changes
requested by the Union at the prior bargaining session.
Provisions concerning holidays and vacations were includ-
ed in the contract, Thomas having apparently abandoned
his position that these items would be subject to the work
rules section of the contract. There was discussion on the
remaining open issues and both parties apparently stated
that their final respective positions would be advanced at
the next meeting.
The final meeting was held on November 3, 1976. At the
outset of the meeting an employee handed DeCarli a
petition signed by two employees stating that they no
longer desired to be represented by the Union.10 DeCarli
told Thomas that he had read Respondent's proposal in its
entirety and could accept all of the sections except for a
portion of section 4, the entirety of sections 15, 16, and 20,
and portions of section 23.11 DeCarli presented the Union's
position on each objectionable item, and stated that
insistence on such items constituted bad-faith bargaining.
The Federal mediator, in apparent agreement with the
Union's announced position, stated that if Respondent
would withdraw or sufficiently modify the five items
objected to by the Union another negotiating meeting
would be scheduled. If not, FMCS would withdraw its
services and the matter would be litigated by the Board.12
Thomas then stated that he would only be willing to
withdraw the objectionable portions of section 23.
This meeting concluded, according to DeCarli's minutes
of the meeting, "with everyone understanding that Mr.
Thomas was to contact the FMCS for the next meeting
provided those five items were removed from the table.
Otherwise the next meeting between the parties would be in
court." No such communication from Thomas evidencing
an intent to withdraw or modify the provisions in question
was forthcoming. l3
13 The foregoing discussion of the bargaining meetings and proposals
presented is largely based upon the credited testimony of DeCarli,
supplemented by DeCarli's detailed minutes of certain meetings. DeCarli
favorably impressed me as a credible witness, and to the extent that the
testimony of Thomas may differ with that of DeCarli in any material
respect, I credit DeCarli.
1134
BETRA MANUFACTURING COMPANY
C. Analysis and Conclusions
The meaning of good-faith bargaining was defined by
the Court in N.LR.B. v. Reed & Prince Manufacturing
Company, 1 4 as follows:
The respondent .. was legally bound to confer and
negotiate sincerely with the representatives of its
employees. It was required to do so with an open mind
and a sincere desire to reach agreement in a spirit of
amity and cooperation. The cases setting forth this
obligation are many, and it is well settled that a mere
formal pretence at collective bargaining with a com-
pletely closed mind and without this spirit of co-
operation and good faith is not a fulfillment of this
duty.
Thus, "The Act not only requires that the parties go
through the motions of negotiation, but it also demands
that they negotiate in good faith,"'1 and the right not to
agree or concede, or to refuse a particular proposal or
make a concession, may not be utilized as a cloak "to
conceal a purposeful strategy to make bargaining futile or
fail."16 Further, the mere fact that a party bargains on
certain issues in an attempt to reach overall agreement,
while at the same time frustrating agreement on one or
more substantial issues, does not suffice to fulfill the
requirements of good-faith bargaining."
At the initial bargaining session Thomas stated to
DeCarli that the Union would never get him to sign a
collective-bargaining agreement. Thereafter throughout the
22 bargaining sessions over a protracted period of time,
Thomas overtly exhibited the utmost disregard for the
collective-bargaining process and engaged in conduct
totally inconsistent with even a modicum of good-faith
bargaining.
Thomas' intolerance of the aforementioned principles of
collective bargaining is clearly reflected by his intransi-
gence in including even so innocuous a clause in the
contract as a statement to the effect that the purpose of the
agreement is to promote continuity of friendly relations
between the parties. Similarly, Respondent's refusal to
allow the Union permission to use the bulletin board is
indicative of such a noncooperative bent. Such attitude is
further evidenced by language proposed in Respondent's
last contract proposal dated October 19, 1976:
The purpose of this contract is to put into writing the
agreement by which the union and the employees
secure specific and limited rights from management
which at the beginning management had absolute
perogative [sic ].
Thomas admittedly entered negotiations with a fixed
intent not to agree to a union-security clause or to
contractual seniority provisions, both mandatory subjects
of bargaining, expressing his views during the course of
bargaining, and also at the hearing, that he inherently
"4 118 F.2d 874, 885 (C.A. 1, 1941).
Is United Steelworkers of America, AFL-CIO [Roanoke Iron & Bridge
Works, Inc.] v. N.L.R.B., 390 F.2d 846, 852 (C.A.D.C.. 1967).
16 N.L.R.B v. Herman Sausage Co., Inc., 275 F.2d 229, 232 (C.A. 5,
1960).
disapproved of such provisions. Thereafter, throughout the
entire course of bargaining, the Union's continued at-
tempts to negotiate a union-security clause and a seniority
clause into the contract proved futile, Thomas maintaining
his fixed resolve in this regard.
Likewise, commencing with the second bargaining
session, and maintained throughout negotiations, Respon-
dent insisted upon the unilateral right to place employees
within various classifications and to determine the specific
rate of pay for each employee, within a broad wage range,
based upon merit determinations to be made solely by
Respondent. At a later session Respondent expanded this
concept by insisting upon reserving to itself the unilateral
right to raise or lower wages 10 percent due to business
conditions or the competitiveness of the labor market.
At the fourth meeting Thomas proposed an all-inclusive
management rights clause, operating as a complete reten-
tion of virtually all matters pertaining to mandatory
subjects of collective bargaining. Despite belabored bar-
gaining and vociferous objection by the Union regarding
this proposal, Respondent not only refused to make
deletions therefrom but rather bolstered the proposal with
additional unilateral prerogatives of management, culmi-
nating in a final management rights proposal upon which,
on and after November 3, 1976, Respondent continued to
insist ("Appendix A," "Section 15: Management").
On two separate occasions, September 24, 1975, and
October 6, 1975, Respondent imposed arbitrary deadlines,
offering therefor no legitimate business justification and
requiring by the announced deadline the acceptance by the
Union of entire contract proposals on a take it or leave it
basis. Respondent would permit no bargaining thereon,
and later withdrew the said proposals as a result of the
Union's refusal to accept them in their entirety by the
prescribed dates. The aforementioned proposal of Septem-
ber 24, 1975, contained a clause providing that any change
in the Union's constitution, bylaws, or affiliation would
invalidate the contract. As alleged in the complaint, such
matters involving the Union's internal structure or rules
constitute nonmandatory subjects of bargaining. There-
fore, by insisting on such a provision dealing with relations
between employees and their union, Respondent violated
Section 8(a)(5) of the Act. See N.LR.B. v. Wooster Division
of Borg-Warner Corp., 356 U.S. 342 (1958). Likewise, under
similar circumstances, Respondent's insistence upon the
posting of a performance bond, also a nonmandatory
subject of bargaining, constituted a per se violation of the
Act, as alleged in the complaint. Scripto Manufacturing
Company, 36 NLRB 411 (1941); Hall Tank Company, 214
NLRB 995 (1974).
Throughout bargaining, Respondent demanded that the
Union agree to a no-strike clause while refusing to agree to
a contract proposal providing for arbitration of grievances.
Rather, Respondent maintained throughout bargaining
that should a grievance remain unresolved for a period of
30 days, the aggrieved party "may petition a court of
jurisdiction to hear the case and render a decision."
17 King Radio Corporation, Inc., 172 NLRB 1051, 1068 (1968), enfd. 416
F.2d 569 (C.A. 10, 1969), cert. denied 397 U.S. 1007 (1970).
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's insistence upon other items is likewise
indicative of bad-faith bargaining. Thus, Respondent
maintained that the entire contract would or could be
nullified as a result of certain contingences, namely, by a
majority of employees stating in writing that they no longer
desired union representation; or if, in the opinion of one of
the parties, a court decision changed the meaning of the
contract; or, in the event there was any change whatsoever
in Respondent's ownership. Further, Respondent initially
insisted that, prior to negotiating a successor contract, the
Union must again prove its majority status. Such a position
was withdrawn at the last meeting only after protestations
from the Union, confirmed by the representations of the
Federal mediator, that insistence upon such a clause was
contrary to law.
An examination of Respondent's contract proposals
makes it abundantly clear that Respondent, from the
outset, took and maintained a firm and unalterable stand
on all major contract issues and even on most minor
matters. Respondent exhibited by its intractable attitude
and patently unacceptable contract proposals, underscored
by statements during the course of bargaining to the effect
that no collective-bargaining agreement would be entered
into and that employees would not benefit from the advent
of the Union, an intent to subvert the collective-bargaining
process. Respondent's failure to make, for the most part,
even arguably acceptable contract proposals cannot be
attributed to lack of flexibility in the Union's position as
Respondent maintains. Rather, the record evidence clearly
shows that from the outset of negotiations the Union
remained eager to discuss its proposals and frequently
invited counterproposals from Respondent. Indeed, at the
last few negotiating sessions the Union exhibited the
utmost willingness to bring negotiations to fruition by
agreeing that the contract would contain no form of union
security, no seniority provision, no arbitration clause, and
no increase in the wages paid and benefits afforded the
employees. Yet, despite the Union's relinquishment of such
contract provisions, generally considered to constitute the
very nucleus of a viable collective-bargaining agreement,
Respondent continued to insist upon patently unaccept-
able provisions, including a management rights clause, a
work rules clause, and an ownership clause which, under
the circumstances, the Union could not, in good con-
science, be expected to accept.' 8
The Board's language contained in Tomco Communica-
tions, Inc.,'9 has particular application to the facts of the
instant case:
In our opinion, Respondent's "last, best and final
offer" was nothing more than a demand on the part of
Respondent that the Union abdicate virtually every
right it would normally possess to represent effectively
the employees involved during the contract, particular-
ly when not only its representation rights are decimat-
ed, but the overall improvement in the employees'
benefits are minimal if not nonexistent; nor can we
Is The fact that the Union, in order to bring an end to the protracted and
unproductive bargaining marathon, did reluctantly accept certain contract
provisions does not alter the fact that such provisions, even though accepted
by the Union, are indicative of bad-faith bargaining. See San Isabel Electric
Services, Inc., 225 NLRB 1073 (1976).
accept the contention that Respondent . . . in good
faith believed that such a proposal would ever be
accepted by the Union. In these circumstances, we find
and conclude that the Respondent has failed to engage
in good-faith bargaining as envisioned by the Act and
that it thereby violated Section 8(aX5) and (1) of the
Act. [Footnotes omitted.]
On the basis of the foregoing, I find that Respondent
entered into negotiations with an intent to subvert the
bargaining process, announced to the Union that such was
Respondent's intention, and, by its protracted bad-faith
bargaining, insured the intended result.20 It is therefore
crystal clear, and I so find, that Respondent has failed and
refused to bargain in good faith during the entire course of
bargaining in violation of Section 8(aX5) and (1) of the Act.
N.L.R.B. v. Montgomery Ward & Co., 133 F.2d 676 (C.A. 9,
1943); Tomco Communications, Inc., supra, Reed & Prince
Manufacturing Company, 96 NLRB 850 (1951), enfd. 205
F.2d 131 (C.A. 1, 1953); San Isabel Electric Services, Inc.,
supra, "M" System, Inc., Mobile Home Division Mid-States
Corporation, 129 NLRB 527 (1960); King Radio Corpora-
tion, Inc., supra.
CONCLUSIONS OF LAW
1. Betra Manufacturing Company is an employer
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, District Lodge No. 93, Local
Lodge No. 504, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All employees employed by Respondent at its San
Jose, California, facility, excluding professional employees,
salesmen, guards, office clerical employees, and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein the Union was and now
is the majority representative of the employees in the
aforesaid bargaining unit within the meaning of Section
9(a) of the Act.
5. By insisting during the course of bargaining that the
Union agree that any change in its constitution, bylaws, or
affiliation would invalidate the contract, by insisting that
the Union agree to post a performance bond, by insisting
upon a management rights clause or other clauses which
would confer upon Respondent the unilateral right to
determine virtually all terms and conditions of employ-
ment, by insisting upon a work rules clause which would
confer upon Respondent the right to unilaterally change
work rules affecting employees' conditions of employment,
and by otherwise failing and refusing to bargain in good
faith, Respondent has engaged in unfair labor practices
within the meaning of Section 8(aX5) and (1) of the Act.
19 220 NLRB 636, 637-638 (1975).
20 The continuing refusal to bargain subsequent to the settlement
agreement, found herein, is sufficient ground to set aside the settlement
agreement. San Isabel Electric Services, Inc., supra
1136
BETRA MANUFACTURING COMPANY
THE REMEDY
Counsel for the General Counsel, in his very comprehen-
sive and helpful brief, makes a persuasive argument for the
imposition of an extraordinary remedy herein, given the
egregious nature of Respondent's unlawful conduct.
Requesting, inter alia, that Respondent be ordered to
reimburse the Union for its expenses incurred in negotia-
tions and that Respondent be ordered to reimburse both
the Union and the Board for their expenses incurred in the
investigation, preparation, presentation, and conduct of the
instant case, the General Counsel relies on Tiidee Products,
Inc.21 While it appears obvious, as argued by General
Counsel, that Respondent's flagrant unfair labor practices
would not be adequately remedied by the customary
imposition of a bargaining order and the posting of a
notice, and while I would otherwise recommend the
extraordinary remedies requested herein by the General
Counsel, it appears that the Tiidee case is factually
distinguishable and that no other precedent is supportive of
such a remedy. Consequently, I shall deny the General
Counsel's request.
Having found that Respondent has engaged in flagrant
and pervasive unfair labor practices, both prior to and after
entering into a settlement agreement providing for the
posting and adherence to the provisions of a customary
notice to employees, I shall recommend that it cease and
desist from engaging in such or similar unfair labor
practices and take certain affirmative action designed to
effectuate the policies of the Act.
Respondent will be required to, upon request, bargain
collectively with the Union in good faith and, if an
agreement is reached, embody such understanding in a
signed agreement, and post at its San Jose, California,
facility copies of the attached notice marked "Appendix
B."
Upon the foregoing findings of fact, and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 22
The Respondent, Betra Manufacturing Company, San
Jose, California, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from in any manner engaging in
surface bargaining or other collective bargaining not in
good faith, without real intention of reaching a meaningful
collective-bargaining agreement with International Associ-
ation of Machinists and Aerospace Workers, AFL-CIO,
District Lodge No. 93, Local Lodge No. 504, as duly
designated exclusive bargaining representative of its em-
ployees in the agreed-upon appropriate unit.
2. Take the following affirmative action in order to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative of
all of the Respondent's employees in the appropriate unit
and, if an agreement is reached, embody such understand-
ing in a signed agreement.
(b) Post at its San Jose, California, facility copies of the
attached notice marked "Appendix B." 23 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
21 194NLRB 1234(1972).
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
23 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
Section 4: Wages
APPENDIX A
All rates in these classifications may be raised or lowered
by management 10% due to business conditions or
competitiveness of the labor market by giving the Union
and employees a ten day notice.
Section 15: Management
The Union recognizes those rights and responsibilities
which belong solely to the company as unilateral rights,
including, without limitation on the generality of the
foregoing, the right to manage the company's business and
to direct the working force, the right to hire employees, the
right to classify employees, the right to require physical
examination, the right to maintain order and efficiency, the
right to extend, curtail, or terminate operations of the
company, to determine the size and location of the
company's plant or operations, and to determine the type
and amount of equipment to be used, and the assignment
of the work, the rights of owners, stockholder[s], superviso-
ry, professional, technical and other employees to perform
any work. The right to determine production schedules,
methods, standard processes, means of manufacture and
material to be used, the right to subcontract any work
within or outside the plant, the right to introduce new and
improved methods or facilities and to change existing
methods or facilities, the right to promote or demote
employees, the right to transfer employees, the right to
discipline, suspend and discharge employees, layoff for
lack of work, the right to determine the number of
employees, the right to pay or not to pay for services not
performed, the right to determine the number of shifts, the
number of hours and days in the work week, hours of work,
the right of scheduling work, the right to make work
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assignments, the right to assign overtime, the right to
require employees to observe rules and regulations issued
by the company, the right to demand compliance in
matters of safety and discipline for non-compliance, the
right to determine the products to be manufactured and set
work standards, do time studies, and to maintain perfor-
mance records for all jobs, the right to set incentives as
long as former base hourly earnings are not reduced, the
right to set quality standards and discipline or discharge for
poor or sub quality. All rights, powers or authorities the
company had prior to signing a union agreement are
retained by the company, except those specifically modi-
fied by this agreement.
Section 16: Committee on Company Work Rules
Employees may participate in helping to establish
written work rules if they wish to do so. This will be on
their own time after working hours.
The employer will set up a committee to help establish
formalized work rules. Service on the committee by
employees will be voluntary. The committee will consist of
three persons selected by the shop employees and three
persons selected by management and a representative of
the union. The committee will meet monthly and all rules
will be put in booklet form and distributed to the
employees. Each employee will sign a sign-off page in two
places - one part for him and one part for the employer,
as a record he received them.
Any rules proposed by the company and not accepted by
a majority of the committee will still be company rules but
will be noted by an asterisk in the booklet with a note
stating that the committee did not agree with this rule but
that management felt it was necessary and thus [it] is part
of work rules under management's prerogative. The
committee may discuss other items concerning the works
[sic] operation or the employees' welfare.
Section 20: Company's Ownership
In order to assure the company complete freedom in the
market place the Union and employees agree that in the
event of a change in composition of the business ownership
the contractual relationship will cease.
The new ownership will then be subject to only the rights
of the employees as they may be exercised under Section 7
of the N.L.R. [sic ]
"Section 7. Rights of employees. Employees shall have
the right to self-organization, to form, join, or assist
labor organizations. To bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall
also have the right to refrain from any or all of such
activities except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(aX3)."
It is further agreed that the employer will not be required
to bargain about any changes or affects of changes to the
employees or others because of his decision to make a
change in the ownership or sale of the business.
Section 23: Term of the Agreement
If a majority of employees no longer wish to be
represented by the signing union, they may [withdraw], by
indicating so in writing. After the Union and employer
have been notified by registered mail of this decision, the
contract will become null and void and the Union will no
longer be the representative for the purpose of collective
bargaining. They will represent themselves or be able to
exercise their rights in another direction under Sec. 7 of the
N.L.R. Act. (sic)
Also the Union agrees to prove it still represents a
majority of present employees before entering into negotia-
tion on another contract or extension of this contract.
The majority shall be proved by an election by secret
ballot held at the company place of business. The Union
will be given a chance to talk to the employees for 10
minutes before the election. Management will also be given
10 minutes to speak and the union then given 5 minutes for
rebuttal. Then all employees will mark ballots in privacy
and deposit in sealed box. The ballots shall be counted as
soon as voting is over and if a majority vote for the Union,
it will continue as the employees' representative for the
purpose of collective bargaining.
This election shall be held on Wed., three weeks before
the expiration of the contract. For this contract the election
day will be Wednesday 10 a.m.
1138