Borg Compressed Steel Corp.

National Labor Relations Board - Board Decisions

Jun 14, 1967

165 N.L.R.B. 394 (N.L.R.B. 1967)

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borg Compressed Steel Corporation and
Tulsa General Drivers , Warehousemen &
Helpers , Local Union No. 523, affiliated
with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 16-CA-2701.
June 14,1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On February 16, 1967, Trial Examiner John G.
Gregg issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, only the Respondent filed exceptions to
the Trial Examiner's Decision and a brief in support
thereof.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Borg
Compressed Steel Corporation, Tulsa, Oklahoma,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
I The Respondent's request for oral argument is hereby denied
as, in our opinion , the record, including the exceptions and brief,
adequately present the issues and positions of the parties
2 The Trial Examiner sets forth, in the Remedy section of his
Decision, the reasons for requiring the Respondent , upon request
of the Union, to execute the agreement dated April 1, 1966, to be
effective for 3 years front the date of execution by the
Respondent There is no exception to this proposed remedy In
his Recommended Order, the Trial Examiner provides that the
Respondent is required, upon request to, (a) bargain collectively
with the Union, (b) execute the agreement dated April 1, 1966,
and (c) provide for said agreement to be effective for 3 years from
the date of execution Our adoption of these provisions is to be
construed as giving the Union a choice of requesting the
Respondent to bargain collectively or to execute the agreement
See N L R B. v. M & M Oldsmobile, Inc, 377 F 2d 712 (C A 2)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GREGG. Trial Examiner: This case was heard
upon the complaint of the General Counsel of the National
Labor Relations Board, herein called the Board, alleging
that Borg Compressed Steel Corporation of Tulsa,
Oklahoma, herein called the Respondent or the Company,
had engaged in and was engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the
National Labor Relations Act. Respondent's answer
denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me at Tulsa,
Oklahoma, on various dates between October 20 and
November 4, 1966. All parties were afforded full
opportunity to appear and to examine and cross-examine
witnesses and to submit briefs. The motions to correct the
record by the General Counsel dated December 28, 1966,
and by the Respondent dated December 29, 1966, and
January 6, 1967, are hereby granted.
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor while
testifying. I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent is and has been at all times material
herein an Oklahoma corporation maintaining its principal
office and place of business in the city of Tulsa.
Oklahoma , where it is engaged in buying , processing. and
selling scrap iron , steel , and metals . The Respondent,
during the past 12 months which period is representative
of all times material herein, in the course and conduct of
its business operations purchased. transferred, and
delivered to its plant materials valued in excess of $50,000,
of which materials valued in excess of $50,000 were
transported to said plant directly from States of the United
States other than the State of Oklahoma . During the same
period the Respondent sold, transported . and shipped
directly to its customers outside the State of Oklahoma
products valued in excess of $50.000. The Respondent is
now and has been. at all times material herein, an
employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Tulsa General Drivers. Warehousemen & Helpers,
Local Union No. 523, affiliated with the International
Brotherhood of Teamsters, Chauffeurs. Warehousemen
and Helpers of America is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On May 6, 1965. a majority of the employees of the
Respondent in the appropriate unit consisting of all
employees working at the employer's establishments
located at 1032 North Lewis, Tulsa. Oklahoma. 707 East
Archer, Tulsa. Oklahoma, and Sand Springs, Oklahoma,
including truckdrivers reporting to 1032 North Lewis,
Tulsa, Oklahoma. excluding all office clerical employees,
guards, watchmen, and supervisors as defined in the
National Labor Relations Act, as amended, by a secret-
165 NLRB No. 55
BORG COMPRESSED STEEL CORPORATION
ballot election conducted under the supervision of the
Regional Director of Region 16 of the National Labor
Relations Board designated and selected the Union herein
as their representative for the purpose of collective
bargaining with the Respondent. and on May 14. 1965, the
Regional Director certified the Union as the exclusive
collective-bargaining representative of all of said
employees of the Respondent.
The complaint alleges essentially that commencing on
or about December 6, 1965, the Respondent refused and
continues to refuse to bargain collectively with the Union
as the exclusive representative of all the employees of the
Respondent described above in that the Respondent
negotiated with the Union in bad faith and with no
intention of entering into any final or binding collective-
bargaining agreement and in that the Respondent. after
incoipotating a union-shop provision in its proposed
collective-bargaining agreement as submitted to the Union
on or about March 18, 1966, repudiated, withdrew. and
retracted the said union-shop provision on or about
May 18. 1966. after the provision had been accepted by the
Union: that after submitting a proposed collective-
bargaining agreement to the Union on March 18. 1966,
which was accepted and executed by the Union on April 1,
1966. Respondent refused to execute said agreement; that
by the aforesaid acts the Respondent refused and
continues to refuse to bargain collectively in good faith
with the Union, thereby engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and (5) and Section 2(6) and (7) of the Act.
The Respondent denies that it refused to bargain in
good faith with the Union; denies that it negotiated in bad
faith and with no intention of entering into a final and
binding collective-bargaining agreement; denies that it
repudiated, withdrew, or retracted any union-shop
provision which it had previously accepted or to which it
had agreed; and alleges that at all times it has met with,
and has been and is now ready and willing to meet with,
the Union for the purpose of collective bargaining; and
that it has negotiated in good faith with the Union and had,
prior to the complaint, submitted a contract to the Union
for its acceptance which has at all times been and
continues to be subject to acceptance by the Union.
A. TheBargainingfrom June 8, 1965, to September .30,
1965
Sometime in June 1965. Robert W. Bryant. assistant
business representative and negotiator for the Union, and
Charles Whitebook. counsel and negotiator for the
Respondent, set a first meeting date of June 8, 1965, at
which time negotiations were commenced.
The first meeting was held as scheduled on June 8,
1965. at Whitebook's office Bryant represented the
Union, Whitebook the Company, with Raskin, an associate
of Whitebook, sitting in but not actively participating
According to Bryant . at this meeting Bryant presented a
contract proposal to Whitebook, and Whitebook presented
a contract proposal to Bryant. Whitebook informed Bryant
that this original company proposal had been prepared by
taking provisions from existing articles in agreements
between scrap processors and unions in other parts of the
country. that this proposal had been carefully prepared,
reviewed, and approved prior to the meeting by principals
Borg and Freidman who were officers of the Respondent
corporation and by one Hall. a labor relations advisor and
sometime representative of the Respondent in such
395
matters. Bryant testified that Whitebook took a long
period of time to acquaint Bryant thoroughly with the
scrap industry, its history and background. Both men then
went briefly through the other's proposals.
Following this they proceeded to consider each article
noting their ability to agree or disagree. passing those
matters inn which agreement could not be reached. They
went through the union proposal at the first meeting, with
Whitebook noting disagreement on most clauses including
the union-shop provision No agreements were reached at
this meeting. Whitebook agreed to study the union
proposal and prepare a counterproposal for the next
meeting which was scheduled for June 16, 1965.
Whitebook testified that immediately after the meeting of
June 8 Whitebook had one of several meetings with Hall,
Borg, and Freidman at which time they went over each
and every article in the proposal made by the Union.
The next meeting took place on June 16 with Bryant.
Whitebook, and Raskin attending. At this meeting.
according to Bryant. Whitebook again went over the
conditions prevalent in the industry, emphasizing the
competitive aspect and indicating that the work was
extremely hard, having to be performed at times when the
temperature is at 110 degrees and the scrap metal hot. and
at other times at 10 degrees above zero when the metal is
extremely cold; that at the prevailing minimum wage of
around $1 25 per hour a major problem was involved in
obtaining and retaining labor. Following this Bryant and
Whitebook proceeded to the articles that had not been
considered at the first meeting. At that time the
participants had before them the Union's original
proposal, the Company's original proposal, and material
on classifications, wage rates, and employment dates.
Bryant testified that at this meeting he took exception to
certain aspects of the Company's first proposal such as the
lack of any kind of a union-security clause. According to
Bryant his position as stated to Whitebook at this meeting
was that the union-security clause was necessary if the
Union was to properly represent the employees and that
Whitebook's position was that they did not want any
union -security clause whatsoever. At the time of this
meeting Whitebook had proposed no union-security clause
to be included in an agreement.
The next meeting was held on June 21, 1965, attended
by Bryant, Whitebook, and Raskin in Whitebook's office.
The Company's counterproposal was placed on the
table by Whitebook for consideration. This
counterproposal. among other items. included a so-called
modified union-shop provision which did not require
employees to join the Union, provisions for checkoff,
maintenance of membership, no-strike no -lockout.
seniority holiday pay. vacations. and a grievance and
arbitration provision. According to Whitebook, this
counterproposal was discussed with Borg and Freidman
prior to the meeting to see how far Whitebook could
possibly go in submitting to the Union a counterproposal
which would move toward working out their differences.
Bryant testified that when he noticed that the Company
had incorporated a modified union-shop proposal, he
opposed the principle of a modified union shop as opposed
to a strong union-security clause as requested by the
Union. Among other things. Bryant took exception to the
Company's grievance-procedure clause as having too
many steps. each allowing too many days to get a
grievance before a panel. Bryant indicated that he took
loud objection to both the modified union-shop and the
grievance-procedure proposals. Bryant also took exception
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the language proposed in the Company's management-
rights clause indicating that the language was offensive.
He took exception to the lack of a wage-reopener clause.
Bryant summarized that this was a short, hard meeting
with no issues resolved.
The record indicates that sometime after the meeting of
June 21 Bryant contacted C. P. Hutchinson of the Federal
Mediation and Conciliation Service who arranged with
Bryant and Whitebook for a meeting on July 12, 1965. This
meeting was held in Whitebook's office attended by
Hutchinson of the Federal Mediation and Conciliation
Service, Whitebook, Raskin, and Bryant. The first hour
was spent going over the background and history of the
scrap industry. The group had before it the Company's
counterproposal and the attached appendix. The parties
negotiated from this article by article. Articles offensive to
each side were noted and passed. Some articles were
agreed on, not of dollar importance according to Bryant.
Bryant testified that a note he made stated "More progress
was made today than any previous meeting with
Mr. Whitebook." Bryant stated that he reiterated at this
meeting the union position that a modified union shop was
not satisfactory to the Union which wanted a union-
security clause. This article of the proposal was passed
with brief notes according to Bryant. At this meeting the
parties did not complete their review of all of the
provisions of the Company's counterproposal. The parties
agreed to meet again on July 16, 1965.
The next meeting, on July 16, was held in Whitebook's
office with Bryant, Whitebook, and Raskin attending. At
this meeting the parties continued to consider the
Company's counterproposal and its attachment, the wage
scale, appendix A. The remaining articles were gone over.
Bryant testified that after considering those articles which
had not previously been covered at the July 12 session the
parties again went over the proposal from the beginning.
According to Bryant, Whitebook informed him that "the
Company had no objection to their employees belonging to
the Union, absolutely none. They voiced a strenuous
objection on some of their employees of which I had earlier
testified were not supervisors as defined in the Act but
old-time employees they used in the capacity of leadmen
and so on. They wanted those men excluded. We
discussed this and I assured him that I would obtain
wording that would be legal to exclude them, not from a
bargaining agreement but from the union security clause
as such." Bryant testified that he considered this the
biggest breakthrough of the entire negotiations and that
then he undertook to get the proper legal wording for this
clause. Bryant later wrote a letter to Whitebook, dated
July 19, 1965, setting forth the wording which would
exclude the supervisors.
Bryant testified that there was discussion at this
meeting of other clauses including the "Management
Rights" clause and "Amendments, Additions and
Waivers." Bryant stated that he gave up most of his
objection to these clauses in order to obtain the union shop
with exclusion clause. Bryant also testified that a
discussion took place at this session concerning the
grievance article and that Bryant asked Whitebook to let
him (Bryant) propose a shortening of the steps that were
included in the procedure. Bryant also asked for inclusion
of a new article relating to use of the bulletin board to
which Whitebook agreed and also asked for a new article
"Stewards, Union Stewards" relating to the duties and
limitations of stewards to which Whitebook had no
objection and agreed. Bryant undertook to provide
Whitebook with something on the grievance procedure,
indicating that he and Whitebook were not apart on the
basic principles but on the number of days involved in the
procedure. Bryant asked for a new article on discharge
causes. He testified that Whitebook later included this in
his proposal.
According to Bryant, toward the end of the meeting he
and Whitebook discussed the wage structure. Bryant
stated that he told Whitebook that they were so close to
agreement that he asked Whitebook to contact Borg
regarding the 5-cent-an-hour across-the-board increase to
all employees, regardless of classification and present
rate, which Whitebook undertook to do. No arrangement
was made for the next meeting as Bryant was to prepare
his items and Whitebook was to contact Borg on the rate
matter. Bryant testified that at this point, aside from a
question on the wording of the exclusion aspect of the
union-shop provision, he was satisfied that an agreement
could be worked out.
According to Bryant, subsequent to this meeting he
went to his legal counsel, Ungerman, who worked up a
provision excluding certain employees from the operation
of the union-security clause which Bryant used in sending
a letter to Whitebook. Subsequently, by date of August 19,
Whitebook forwarded a letter to Bryant on the wage
structure. Testimony of record by both Whitebook and
Bryant establishes the fact that around this time Bryant
asked to meet directly with Borg, to settle the matter of the
wage increase, that Whitebook cleared this with Borg and
Freidman, and that Bryant's request was denied.
The Respondent submitted a revised company proposal
for an agreement to the Union on August 27, 1965.
Whitebook testified that this "contract" which was
submitted to the Union under date of August 27 contained
a so-called modified union-shop provision substantially
identical to the provisions of the Respondent's
counterproposal of June 21, and that this "contract" of
August 27 was amended on September 15, 1965, by the
substitution of pages which include a union-shop
provision. Under the August 27 so-called modified union
shop those men who wanted to could )oin the Union and
those who did not simply did not have to join the Union.
When queried as to the reason why the Respondent on
September 15, 1965, amended its submission of August 27
to include a union shop with exceptions, Whitebook
testified that on or about September 8 he received a call
from Bryant who was very angry over the so-called
modified union shop and told Whitebook that he could
expect an immediate strike, that he (Bryant) simply was
not going to submit the modified union shop to the men,
that "unless he wanted a strike, he wanted this to submit
immediately." Whitebook testified that he then simply
went ahead and dictated the union-shop provision with
exclusions to the secretary and sent it on that very same or
the next day. Whitebook testified that in effect he
submitted the change from the August 27 proposal to the
one containing the union shop with exceptions in response
to Bryant's demand. He testified further that it was
understood that the new proposals were to be substituted
and attached to the revised company proposal and that
they were then to be submitted to the membership to see
whether, notwithstanding Bryant's personal objection to
certain of the other provisions of the proposal, Bryant
could obtain approval from the Union or the membership.
After the amendments were attached to the Company's
revised proposal to include the union shop with six specific
exclusions , on September 27 Bryant notified the
BORG COMPRESSED STEEL. CORPORATION 397
employees that a ratification meeting would be held at
7 p.m., Thursday, September 30, 1965. Bryant testified
that this meeting was held in the Teamsters union hall,
attended by himself, Shryop, who was also an officer of the
Union, and some of the employees of Borg. Bryant
testified that he read the revised company proposal for
agreement and explained it to the employees. Bryant
testified that approximately 13 employees were present,
that he, Bryant, explained and defined the contract
emphasizing good and bad points, as none of the
employees had previously been covered by a union
agreement . Bryant stated that while earlier company
proposals relative to the union shop had specified three
employees for exclusion the revised proposal specified six.
According to Bryant this was explained to the men. Bryant
said that by secret ballot he achieved ratification with
authority to make changes in language which he deemed
objectionable, including authority to negotiate with
Whitebook to limit the union-shop exclusions to three
instead of six if possible.
In a different version of what transpired Whitebook
testified that he was advised of the notice of the union
meeting posted at Respondent's premises and then
advised that there was a meeting at which only two men
attended. Whitebook testified that on October 4, 1965,
after the union meeting , "I then received a call from
Mr. Bryant and Mr. Bryant advised me that he had
submitted the contract and that the membership had
turned it down." Based on my observation of the
demeanor of the witnesses as they testified, I do not credit
the statement by Whitebook. Whitebook stated that at this
time Bryant indicated that he was "tired of this fooling
around they were going to call for a strike." According to
Whitebook, after this call Whitebook contacted his clients
and advised them of the situation. Whitebook testified,
"Subsequent to that time, almost immediately subsequent
when the strike did not develop and it came to our
attention that only two men had attended the meeting it
appeared the Union really was not in a position to pull a
strike and I waited for Mr. Bryant to move." Whitebook
stated he was of the opinion that the Union had made its
attempt and this was the end of it. According to
Whitebook, having had no strike and hearing nothing
further from Bryant, on November 9 he assumed that
matter was over, so he advised his client, closed his files,
and billed his client. The next meeting he had on the
matter was in December when Ungerman called for a
meeting which took place on January 11, 1966.
B. The Hiatus between October 5, 1965, and January 11,
1966
There is a difference of opinion between Whitebook and
Bryant as to the events that took place between October 5,
1965, and January 11, 1966. Whitebook testified that he
received no further calls from Bryant in October and no
calls in November until sometime before Thanksgiving
when Whitebook's secretary mentioned that Bryant had
stopped in the office, had not left any notices or number.
Whitebook testified that he asked his secretary to call
Bryant and leave a call and that she did call the union
office. According to Whitebook, Bryant was out and a call
was left. Bryant did not return the call and Whitebook did
not try to call him again.
On the other hand Bryant testified that after October 5,
1965, he tried to contact Whitebook innumerable times
until December 12, when he turned the entire matter over
to his attorney, Ungerman. Bryant testified that during the
period he tried many, many times to contact Whitebook,
from 3 to 5 times a week, that in most instances a lady
would answer the telephone or it would be busy. Bryant
stated that he left his name and telephone number with the
person who would answer the telephone and asked that
the call be returned. There was considerable testimony on
the matter of how telephone calls were received and noted
in Whitebook's office the sum of which I find not
dispositive of the issue. Based on my observation of the
demeanor of the witnesses as they testified, I credit
Bryant's version of his repeated attempts to reach
Whitebook.
C. The Bargainingfrom January 11, 1966, to May 18,
1966
The next meeting was held on January 11, 1966.
Ungerman now negotiated for the Union. According to
Whitebook the parties had before them the revised
company proposal of August 27, 1965, with the pages
which had been superseded by the amendment of
September 15. This contained a union-shop provision with
six exclusions and it was from this that the parties
negotiated on January 11, 1966. Whitebook testified that
discussion was'had on article III, the union shop, the 5-
cent increase, the term of the contract (with Ungerman
seeking 1 year and Whitebook taking the position that
throughout the negotiations the Respondent had talked
about 3 years), a change or revision in article III
concerning notification to the Union within 30 days after
hearing, and the matter of the exclusions from the union
shop (Ungerman seeking three exclusions, Whitebook
holding for six). They also negotiated on access to
company property by union representatives and the
grievance and arbitration procedures. Whitebook
undertook to carry these back to Borg for discussion.
While Whitebook testified that there was no discussion on
the union-shop controversy testimony indicated
considerable discussion on matters connected with that
clause such as exclusions and notification. According to
Whitebook no agreement was reached at this meeting but
he was to clear these matters with his client and report
back to Ungerman, advising him as to what, if anything,
the client would go along with.
In testifying concerning the meeting of January 11,
1966, Whitebook indicated that the question of the number
of exceptions to be included in the union-shop clause was
discussed at some length, that the Union, through
Ungerman, pressed for three exclusions while Whitebook
maintained his position on six exclusions. Whitebook
testified, "In Article III, Section 2, there was an apparent
omission in that we had not agreed or there was no
provision for notification of any employees that should be
hired, either that I do not remember exactly or the number
of days was not correct, and I saw nothing that my client
might object to. I told him I didn't think I would have any
trouble having that approved and we agreed." Whitebook
testified that dispute then evolved over the grievance
procedures and there were about six separate subjects
that he was to take back and talk to Borg Steel about.
Shortly thereafter he communicated the situation to Borg
and Freidman. Borg was leaving for "a conference in
Washinton on private business in Washington and New
York City ... but definitely he was out of town during the
intervening period and I was not able to get in touch with
him, to meet with him to discuss the matter." Whitebook
explained "the intervening period" to mean the period
between January 11, 1966, and the end of the month.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Toward the end of the month, according to Whitebook,
Ungerman called and wanted to know why he had not
heard from Whitebook, Whitebook explained Borg's
absence. A meeting was subsequently set for February 16,
1966, in Whitebook's office. On the other hand,
Ungerman's version while essentially in accordance
included this contradictory testimony, "We discussed
right down the line, item 1, this question of the exclusions
from the union shop, Whitebook advised me that Borg
insisted if he was going to have a union shop he'd have to
have these six exclusions...."
At the meeting of February 16, according to Whitebook,
he pointed out to Ungerman that Borg was adamant and
refused to budge, insisting on the six exclusions, on a 3-
year contract with no wage reopener, no termination, no
right of renewal at the end of 1 year, and no change in the
grievance procedure. Whitebook testified that he advised
Ungerman at this meeting that Borg would not have what
he termed a closed union shop or compulsory union
membership. Whitebook testified that at that time he had
a discussion with Ungerman, and told him that "anyhow
we would not have, we would never agree to and had never
agreed to a proposal of compulsory union membership, we
weren't going to do anything to stop the Union, we would
not interfere. They could bring men in, they could belong if
they wanted, but we would not make it necessary."
According to Ungerman's version however, on the day
prior to the February 16 meeting he had finally reached
Whitebook on the telephone and Whitebook had advised
him that Borg would not change his position at all, that
with respect to the union-shop provision "he felt that in
order to give the Union a union shop clause he needed that
many exclusions from the coverage," that he (Borg) had a
number of employees that he felt he just could not force to
join the Union. Ungerman stated that Whitebook
essentially repeated this at the meeting the following day
on February 16. Based on my observation of the demeanor
of the witnesses as they testified, I credit the version given
by Ungerman and do not credit the version of Whitebook.
Following the meeting of February 16, according to
Ungerman he conferred with Bryant relative to what had
transpired, that subsequently Bryant told him to conclude
the agreement on the basis desired by the Respondent
with respect to the wage reopener and the number of
exclusions. Ungerman reached Whitebook, set up a
meeting for March 2, 1966.
At the meeting of March 2 they went over Ungerman's
suggested changes on three items which they had
previously agreed on, the grievance procedure, access to
company property, and a 30-day notice after hiring of new
employees. Ungerman testified that he had previously
advised Whitebook that the Union was agreeable to going
along and granting them six exclusions, the Union would
drop anything regarding the wage reopener and settle for
the 5-cent increase over a 3-year period. Ungerman asked
Whitebook to prepare and submit the revisions.
Whitebook then prepared and submitted the revisions
which he testified were approved by Borg, and forwarded
the revised provisions by letter of March 18, 1966, which
included several "revised and superseded pages of the
Proposed Contract between Borg Steel and the Union
containing the revisions agreed upon." According to
Ungerman, after these were received lie and Bryant went
over the revisions, Bryant approved, and that was it. Then
according to Ungerman, Ungerman called Whitebook and
told him the changes were fine. Subsequently a contract
dated April 1 was prepared and executed by Shryock for
the Union and delivered to Whitebook's office by
Ungerman. Ungerman claims he left it with instructions
that it be signed by Borg, Whitebook claims it was found
on his desk. Ungerman testified that following this, he
contacted Whitebook the middle of April asking whether
Borg had signed and Whitebook said he had not been able
to get it signed. He tried several more times, contacted
Whitebook and was told that Borg would not give
Whitebook a concrete answer on the contract. While this
was going on, according to Ungerman, the Union, on
May 18, received a new contract proposal from Whitebook
signed by Borg in which the union-shop provision was
withdrawn. In the covering letter forwarding this proposal
Whitebook indicated the reasons why the union-shop
provision was deleted, "Management is presently of the
opinion that it cannot live with a closed shop contract and
that an open shop is imperative."
Whitebook's explanation of what happened in the
intervening time between receiving the Union's proposed
contract dated April 1 and forwarding the Respondent's
proposed contract of May 18 was essentially that when on
March 30 he found the union proposal on his desk he
communicated immediately with his clients, then met with
them on April 15 and 22. Borg, Freidman, and Whitebook
went over the matter article by article.
Whitebook testified, "Mr. Borg was unhappy with some
of the opinions that I had given them. He wanted to
investigate on his own, and he did And he brought back to
me some 25 or 30 corrections or modifications or
counterproposals that he wanted to make to the Union's
submissions."
When asked why it took two conferences, a week apart,
instead of one to go over the union proposal Whitebook
stated that "it takes a long time to go over this contract
article by article sincerely and honestly and to give and
take and discuss it, and object and cajole and try to work
the thing out. Mr. Borg and Mr. Freidman were not in
agreement on all matters. I was not in agreement on the
legal point and there was pull and give and take to see if
we could live with this thing. We simply did not get
through on the 15th."
Finally on May 19 original counterparts of an executed
contract counterproposal was submitted by the
Respondent to the Union, signed by Borg. This did not
contain a union-shop provision but included a so-called
modified union shop with six exclusions.
Findings and Conclusions
It has been stated many times that the duty to bargain
collectively requires that the parties meet at reasonable
times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment.
While the statute does not compel either party to agree to
a proposal or require the making of a concession
something more than mere surface negotiation must
clearly be undertaken. N.L.R.B. v. Whittier Mills
Company, et al., 111 F.2d 474 (C.A. 5). The statute will not
permit a company to give the union a runaround while its
representatives merely go through the motions of meeting
with union representatives for the purpose of collective
bargaining. N.L.R.B. v. Athens Manufacturing Company,
161 F.2d 8 (C.A. 5). Good-faith collective bargaining calls
for a willingness to conduct negotiations with an open
mind and purpose to reach an agreement consistent with
the respective rights of the parties which may then be
formalized in a collective-bargaining contract. N.L.R.B. v.
BORG COMPRESSED STEEL CORPORATION 399
Insurance Agents' Union [Prudential Ins. Co.], 361 U.S.
477; N.L.R.B. v. Herman Sausage Company, Inc., 275 F.2d
229 (C.A. 5).
Whether statutory "good faith" standards have been
met is difficult to determine, particularly where the record
does not disclose an outright refusal by the Respondent to
meet and negotiate with union representatives. In
N.L.R.B. v. Reed & Prince Manufacturing Company, 205
F.2d 131 (C.A. 1), an employer engaged in a lengthy series
of bargaining conferences which got nowhere. The court
stated, "In such a case the question is whether it is to be
inferred from the totality of the employer's conduct that he
went through the motions of negotiations as an elaborate
pretense with no sincere desire to reach an agreement if
possible, or that [the employer] bargained in good faith
but was unable to arrive at an acceptable agreement with
the Union." (Emphasis supplied.)
Based on careful analysis of the record in this case and
my observation of the demeanor of the witnesses as they
testified, I am convinced and I find from the totality of the
Respondent's conduct that the Respondent did not
bargain in good faith with the Union but conducted
"surface" bargaining with no sincere desire to conclude a
final and binding agreement.
In reaching this conclusion I have given consideration to
the following:
First, the dilatory actions of the Respondent.
Commencing around September 30 the dilatory actions of
the Respondent indicate that it had one eye on what it
considered to be the apparent dwindling of the Union's
strength and had no sincere desire to conclude a binding
agreement with the Union. In this regard the record
discloses that from the time the parties commenced
bargaining in June 1965, until they ceased a year later in
May 1966, they participated in two series of negotiating
sessions interrupted by a gap or hiatus of almost 3 months.
Ample testimony of record indicates that subsequent to
the ratification meeting of September 30, 1965, by
interrogating employees of the Respondent, the
Respondent's president, Borg, ascertained, or believed
that he had ascertained, that only two men attended the
ratification meeting, that apparently union ardor had
cooled, and that the Union had lost its majority.'
Statements by Whitebook to this effect are clear on the
record. In fact, Whitebook testified that when no strike
materialized after the ratification meeting he was
convinced that the employees had not backed the Union
and that the Union's representative, Bryant, was no longer
interested in continuing union activity. Under these
circumstances Whitebook, by his frank admission, elected
not to make a move, but waited for the Union to make the
next move and when, as he alleged, he heard nothing
further he billed his client and closed the case. Aside from
the fact that I do not credit Whitebook's account that he
heard nothing during this period except for one visit from
Bryant which he returned, and I do credit Bryant's
account that he tried to contact Whitebook on numerous
occasions, I find in Whitebook's account of what
transpired during this period, and his rationale, an
unmistakable element of intent to avoid, if possible,
concluding an agreement with the Union. With this in
mind, when Whitebook at the insistence of the Union then
resumed the bargaining on January 11, 1966, he did so
with no sincere desire to reach a final agreement but with
an ear toward the ticking of the timeclock as it measured
out the certification year.
The second significant delay occurred when, at the
conclusion of the first session of resumed negotiations on
January. 11, 1966, Whitebook undertook to clear matters
which had been discussed at the meeting with Borg and to
advise Ungerman of Borg's reaction. Whitebook testified
that after this meeting he communicated with Borg and
Freidman and that the extent of this communication was
limited to generally informing them that a meeting had
been held and additional demands had been made. Borg
was leaving then, according to Whitebook, either for a
national conference in Washington or private business in
Washington and New York, but "definitely he was out of
town during the intervening period and I was not able to
get in touch with him, to meet with him, to discuss the
matter." The next meeting took place on February 16,
almost 5 weeks later. I simply do not credit Whitebook's
version. In the circumstances of this case and in this day
and age an attorney with the close business and social ties
indicated between Whitebook and Borg would
doubtlessly, had the parties desired it, been able to
maintain contact over this period. I am convinced that had
Borg desired it, he could have delayed his trip until the
business at hand had been disposed of. Whitebook
testified that Ungerman did call him seeking to know why
he had not heard from Whitebook to which Whitebook
merely replied that in essence he had to await Borg's
return. It is interesting to note that after this prolonged
delay Whitebook reported to Ungerman at the next
meeting on February 16 that Borg was adamant, would not
budge.
The third incident of foot dragging and delay took place
after the Union left its executed proposed contract dated
effective April 1, 1966, with Whitebook. Ungerman
testified that he subsequently talked to Whitebook and
asked what he had done to get it signed by Borg to which
Whitebook responded that he had not had the opportunity.
I credit Ungerman's testimony that he tried to reach
Whitebook on several occasions after this time and when
he could not, he called Whitebook again on May 17 and
left word for Whitebook to call him back. Later that
morning he saw Whitebook in the coffeeshop and asked
what was happening. According to Ungerman, Whitebook
said he had called Borg, that the contract was not yet
signed, and that Borg did not give Whitebook a concrete
answer as to when or whether he would sign the contract.
Later the same day Ungerman asked Whitebook to call
him; when Whitebook did not Ungerman called him.
Whitebook said that he had not been able to finalize the
agreement or get Borg's signature. He would contact Borg
again and advise Ungerman. Following this the Union
received a whole new set of contract proposals mailed on
May 18, 1966, in which the only basic change was that they
had withdrawn the union-shop provision.
These incidents clearly indicate that the Respondent
failed to display the degree of diligence in meeting with the
Union and in reasonably prompt consideration and action
' Concerning the ratificati on meeting of September 30, there
were conflicting versions by Bryant and by Crawford and
Templeton, two former employees of the Respondent. Insofar as
this bears on the question of Bryant's credibility, I draw no
conclusion since the testimony of Crawford and Templeton, even
if true, would not be dispositive of the question of whether or not a
meeting actually took place as described by Bryant, for this could
have occurred outside the presence of the two witnesses Even if
it were true and I were inclined to discredit Bryant's account, this
would not affect those instances in which I have credited Bryant's
testimony herein for I would not apply the axiom Ialsus in uno,
falsus in omnibus, under these circumstances
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on proposals which proper performance of its bargaining
obligations required. This is so whether or not the delays
were inspired by a deliberate scheme to engage in dilatory
tactics. The duty to bargain in good faith includes the duty
to remain available for negotiations at reasonable times as
the statute requires. A gap of almost 3 months in the
negotiations and a subsequent gap of 5 weeks in the
negotiations, the latter at a time when the provisions had
been considered for almost a year, does not satisfy that
duty. I find that during these periods, at least, the
Respondent failed to exercise the degree of diligence
required of it by the statute. I have considered this as an
element of evidence that the Respondent did not bargain
in good faith, but bargained in bad faith with no sincere
desire to conclude an agreement with the Union.
Secondly, I have taken into account the somewhat
ambiguous and fluctuating authority of the Respondent's
negotiator, Whitebook. According to Bryant, concerning
Whitebook's authority, "He did express to me, during this
first negotiating session, even, that he personally had no
authority to spend Mr. Borg's money." Bryant stated that
Whitebook did not express any limitation as to his
authority other than the foregoing. Bryant testified further
that at the July 16 meeting, when the matter of wage
increases was under discussion, Whitebook again
indicated that he had no authority to spend Borg's money.
At no time, according to Bryant, did Whitebook indicate
any other or further limitation on his authority. There was
credible testimony of record indicating that at the meeting
of January 11, 1966, Whitebook advised Ungerman that he
would have to go back and take anything back to Borg just
as the union representatives have to take back to the
Union for ratification matters that they negotiate.
Ungerman testified that Whitebook told him that the final
contract would have to be signed and ratified by Borg.
On the other hand Whitebook testified that at the initial
meeting on June 8 he explained to Bryant that he was a
neophyte, that he had absolutely no authority to do
anything except to try to draft something which hopefully
Bryant and he could reach agreement on and take back to
their principals, that "I had absolutely no authority to
agree to anything without approval and that we wanted to
move along, that we ought to start, but that not only each
item, but the contract would have to be submitted and
approved by my principals." Whitebook testified that he
had on numerous occasions made this limitation clear.
I find that during the bargaining period, June 8, 1965,
through September 30, 1965, the only expressed limitation
on Whitebook's authority was that he "could not spend
Borg's money." I find that for the period January 11
through May 18, 1966, the only expressed limitation on
Whitebook's authority was that he would have to go back
and take anything back to Borg just as the union
representatives have to take back to the Union for
ratification matters that they negotiate and that the final
contract would have to be signed and ratified by Borg. In
so finding I credit the testimony of Bryant and am not
persuaded by the statements of Whitebook with respect to
statements concerning Whitebook's authority at the 1965
series of bargaining sessions . I am convinced that
Whitebook changed his expression of the limitation on his
authority when negotiations were resumed on January 11,
1966. It has been stated that a bargaining principal is
entitled, in the interest of bona fide bargaining, to
something more than an ambiguous definition of the
bargaining authority of his opposite in negotiations. See
Aaron Newman, Daniel Newman, Paul Newman, and Carl
Newman, a Partnership d/b/a Colony Furniture Company
and Furniture Workers Union Local 3161, 144 NLRB
1582, 1588. In the case at hand I find the somewhat
ambiguous and the fluctuating authority expressed by
Whitebook an additional element indicating the lack of a
sincere desire on the part of the Respondent to conclude a
binding agreement with the Union.
Thirdly, the retraction on May 18, 1966, by the
Respondent of its assent to a union-shop provision with
exclusions, after leading the Union to believe that it had
been accepted indicates a failure to bargain in good faith. I
am convinced and I find from ample credible testimony of
record that the Respondent's negotiator, Whitebook,
under circumstances concerning which his principals
Borg and Freidman knew or should have known, and with
their approval, led the union negotiators on by moving
from a position of no union shop to a position in which the
Respondent, apparently assenting to a union shop, avoided
final agreement on the provision through the tactic of a
continuing shifting of its position on the question of the
number of exclusions to be provided for. I find from
evidence on the record that the Respondent first agreed to
the inclusion of a union shop, with six exclusions in the
face of a strike threat on September 15, 1965. I simply do
not credit Whitebook's statement that he was
reprimanded by Borg and Freidman for allegedly
exceeding his authority in making the modification of
September 15, 1965, by including the union shop with
exclusions. I am not persuaded that a lawyer of
Whitebook's skill and experience in the law of contract as
indicated on this record would have taken this action
without the approval of, or prior discussion with, and
clearance from his principals particularly in view of his
claim that Borg never would agree to a union shop.
Whitebook and Borg on this record were close business
and social associates with no lack of communication
between them. Their course of conduct during the
negotiations establishes the fact of their close
coordination. Having at one point on September 15, 1965,
indicated assent to the inclusion of a union shop with six
exclusions the Respondent resumed bargaining on
January 11, 1966, in a posture indicating that the matter in
question was not whether there would be a union-shop
provision but merely as to whether there would be six or
three exclusions in the provision. The parties at that time
had before them a union-shop provision and conducted
prolonged discussions on exclusions therefrom and
notifications required in connection therewith. When
queried as to whether the union shop was discussed at the
meeting of January 11, Whitebook testified "I never
referred to it, we didn't discuss it; it was not involved. I
hadn't intended to refer to it; I didn't intend to refer to it; I
didn't refer to it; it was never mentioned any more than
these other negotiations." Whitebook testified that the
only discussion was on five matters, one of which was the
matter of the exclusions. I do not credit Whitebook's
testimony. Aside from the fact that he stated otherwise in
a letter dated July 21, 1966, to a field examiner for the
Board, I simply do not believe that in a meeting in which a
part of a provision was discussed at length that the basic
provision would not itself be discussed. In any event, I
infer from all the circumstances that the union-shop
provision was discussed at the January 11 meeting. When
on April 1, 1967, the Union acceded to the Respondent's
insistence on the six exclusions and tendered an executed
agreement for the Respondent's execution the Respondent
merely delayed and stalled. I have reference to both the
timing and to the rather unusual occurence which took
place, when, at the conclusion of almost a year of
BORG COMPRESSED STEEL CORPORATION
bargaining, during which time close contact had been
maintained between negotiator and principals, one of the
principals, Borg, suddenly and belatedly assumed the role
of independent researcher on provisions of collective-
bargaining contracts and after the consumption of a
considerate period of time ostensibly confronted his own
counsel and negotiator with a host of changes for the first
time. I find this to be unmistakably indicative of a desire to
stall and delay the conclusion of an agreement and to
clearly indicate that the Respondent bargained in bad faith
and with no sincere intent to conclude a binding agreement.
N.L.R.B. v. Reed & Prince Manufacturing Company, 205
F.2d 131 at 139 (C.A. 1). See also N.L.R.B. v. Herman
Sausage Co., 275 F.2d 229 (C.A. 5). I have also considered
that almost immediately after the certification year had
run out, and after the lengthy series of negotiations during
which the parties had before them under consideration a
union shop, the Respondent presented a proposed
contract to the Union, from which it had emasculated the
union-shop provision. I find this clear indication that the
Respondent had never really intended to execute a
contract containing a union-shop provision but had, by
cunning, deliberately led the Union to believe that
bargaining had progressed to an agreement on a union
shop while, in fact and as subsequently stated on the
record by the Respondent's negotiator, Whitebook, it
would never accept a union shop.
The Respondent , in its brief, focused attention on the
movement on the part of the Respondent from a position of
no-union recognition whatsoever , then to union
recognition, and finally to a modified union shop providing
for voluntary membership in the Union on an optional
basis by the employees, that the only thing the Respondent
did not do was to agree on a union-shop clause requiring
new employees to become members of the Union within 30
days after employment and to remain members as
condition of employment. In my opinion this represents a
movement from no-union shop to no union shop. A union
shop without a requirement for new employees to become
members of the Union is no union shop. A union shop is
defined as a form of union security under which employees
must, within a certain time after they are hired or after a
compulsory unionism contract is executed, join the Union
and maintain their membership therein as a condition of
employment. See Labor Law Course 1964, Commerce
Clearing House, Inc. The Respondent advances the
argument that it simply reached an impasse on the matter
of the union shop because of the cost aspect and its
crippling effect on hiring ability, and argues that an
employer's counterproposal of a maintenance of
membership provision with reasons for rejecting a union-
shop provision are indications of good-faith bargaining.
However, in the case at hand the Respondent conducted
prolonged negotiations over the union - shop provision,
leading the Union to believe that it had agreed to it while
presumably bargaining over the number of exclusions to
be provided for, and finally agreed to the provisions and
the number of exclusions as indicated in its letter of
March 18, 1966. Under these circumstances the
Respondent did not bargain to impasse but to agreement.
This agreement is nonetheless valid even though not
included in a contract executed by both parties. Having
agreed orally to the union-shop provision the subsequent
rejection indicates an act of bad-faith bargaining. San
Antonio Machine & Supply Corp. v. N.L.R.B., 363 F.2d 633
(C.A. 5); Shannon & Simpson Casket Co., 99 NLRB 430.
401
Accordingly, based on the totality of the Respondent's
conduct and with consideration of the factors hereinabove
enumerated, not relying on any one but on their
cumulative effect, I conclude that the Respondent,
commencing on or about December 6, 1965, and at all
times thereafter, did refuse and continues to refuse to
bargain collectively with the Union in that the Respondent
negotiated with the Union in bad faith and with no
intention of entering into any final or binding collective-
bargaining agreement and that the Respondent, after
incorporating a union-shop provision, as previously
negotiated in its proposed collective-bargaining agreement
submitted to the Union on March 18, 1966, repudiated,
withdrew, and retracted on May 18, 1966, the agreement
for the inclusion of a union-shop provision. I conclude that
by these actions the Respondent did interfere with,
restrain , and coerce and is interfering with , restraining,
and coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act and thereby did engage
in and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the Act. I find and conclude that by these actions
the Respondent did refuse to bargain collectively and is
refusing to bargain collectively in good faith with the
Union and thereby did engage in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(5) and 2(6) and (7) of the Act.
Finally there is for disposition the amendment to the
complaint alleging further , in essence, that a complete
contract was submitted by the Respondent to the Union on
March 18, 1966, reduced to writing by the Union and then
submitted in written and executed form to the Respondent
on April 1, 1966, and which the Respondent refused to
execute. As previously indicated there is ample credible
testimony of record herein establishing the close contact
and communication between Whitebook and Borg.
Business matters were touched on even at social
gatherings attended by them . It is clear that starting with
the very first meeting on June 8, 1965, Whitebook met
both prior to and subsequent to the meeting with Hall,
Borg, and Freidman , going over the proposals. Similarly on
June 21, according to Whitebook's own testimony, the
Company's counterproposal had been discussed with Borg
and Freidman prior to the meeting.
At the meeting of February 16, Whitebook reported to
Ungerman that Borg refused to budge on the so-called
formal matters , insisting on six exclusions , a 3-year
contract without wage reopeners , no termination, no right
of renewal at the end of 1 year, and no changes in the
grievance procedure. According to Whitebook, at this
meeting Whitebook pointed out to Ungerman that Borg
would not have what Whitebook called a closed-union
shop, that they (Respondent) would never agree to a
proposal of compulsory union membership. I do not credit
this account by Whitebook.
Subsequently, according to Whitebook , Ungerman
asked Whitebook to "submit the revisions that we had
said, that with possible excluding these matters that Borg
was adamant about so that he (Ungerman) could formally,
as I understood it, submit it to his principal."
According to Whitebook, pursuant to Ungerman's
request he prepared new pages , revisions , or superseded
pages to be submitted and attached to the proposal which
was still being used which was the proposal of August 27,
1965, and "I included in these changes that we had, Borg
had approved." Whitebook sent this with his letter of
March 18,1966.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent would have us view the lengthy
discussions leading up to Whitebook's letter of March 18
forwarding the agreed -upon revisions to be included in the
basic document from which the parties were then
negotiating as having no relation to the basic document, as
having been negotiated as it were, in a vacuum . I do not so
view it. I find that when Whitebook, with Borg 's approval,
forwarded the revisions on March 18, clearly indicating
approval and agreement and requesting their inclusion in
the basic document , that this is a clear act of acceptance
and agreement by both Whitebook and his principal, Borg,
not only with the revisions but with all the provisions of the
basic document as then revised. The Respondent itself
took the position in its brief that it agreed to everything
contained in that proposal except for the union-shop
clause requiring as a condition of continued employment
the joining and maintaining of membership in the Union.
I am also persuaded by the fact that while professing
that the Respondent never intended to, never would, and
never did agree to a union-shop provision which would
require its employees to join a union and maintain
membership therein as a condition of continued
employment , the fact is that the Respondent continued to
bargain over a considerable period of time on the matter of
excluding six employees from this provision . When the
provision now offered by the Respondent , which does not
require its employees on the rolls at the time of the
execution of the agreement to join the Union within 30
days of execution, is offered with the six exclusions
contained therein, the question arises as to why it is
necessary or was necessary at all to have negotiated over
this matter since under these circumstances the
exclusions are meaningless . What would these employees
be excluded from: The exclusion becomes superfluous.
This is an additional factor persuading me that the
Respondent , when negotiating with respect to the
exclusions , was in fact negotiating relative to a provision
requiring employees on the rolls at the time of the
execution of the agreement to become members of and
maintain membership in the Union as a condition of
employment.
The Board in deciding whether under these
circumstances the employer and the Union have in fact
arrived at an agreement that the employer is obliged to
embody in a written contract upon the Union's request is
not strictly bound by technical rules of contract law.
Lozano Enterprises v. N.L.R.B., 327 F.2d 814 (C.A. 9). I
find- in the circumstances of this case that Whitebook and
his principals , by their course of conduct throughout the
negotiations , gave the Union the unmistakable impression
that they were working closely together on the
negotiations , often prior to the meetings , sometimes
subsequent to the meetings . By Whitebook' s letter of
March 18, 1965, which, written by a lawyer well versed in
contract law and at a point in time when he has clearly
communicated with his principals , states that he is
forwarding revisions agreed upon and requests that the
revisions be substituted for prior pages of the proposed
contract between Borg Steel Corporation and the Union
(emphasis supplied), I find that the Respondent in fact
agreed to the provisions as then negotiated . As the court
stated in Lozano, "In our view , the employer' s arguments
may be accepted as stating good technical contract law,
but we do not think that in this particular case they state
good collective bargaining law. We do not think that, in
deciding whether , under a particular set of circumstances,
an employer and a union have in fact arrived at an
agreement that the employer is then obliged to embody in
a written contract upon the Union 's request , the Board is
strictly bound by the technical rules of contract law." A
collective - bargaining agreement is not an ordinary
contract for the purchase of goods and services , nor is it
governed by the same old common -law concepts which
control such private contracts . John Wiley & Sons, Inc. v.
David Livingston, etc., 376 U.S. 543, 550. In the case at
hand Whitebook had authority to negotiate for the
Respondent corporation with the limitation that any
agreement would have to be approved and ratified by Borg.
In the posture of the negotiations on March 18, 1966, when
Whitebook sent his revisions they had been clearly
approved and agreed to by Borg to be added to the
proposed contract between Borg Compressed Steel
Corporation and the Union. I find therefore that by this
action Borg agreed to and ratified the agreement as it was
then orally constituted. It is well settled that the refusal by
an employer on the request of a labor organization to sign a
written contract embodying the terms of an agreement
which has been accepted concerning wages, hours, and
working conditions is a refusal to bargain collectively in
violation of Section 8(a)(5) of the Act. H. J. Heinz Company
v. N.L.R.B., 311 U.S. 514. Accordingly, I find that the
Respondent agreed orally to the terms of the proposed
contract (dated April 1, 1966), as reduced to writing and
executed by the Union, and that by its subsequent
rejection thereof by its counterproposal of May 18, 1966,
and by its refusal to execute the same, the Respondent did
refuse to bargain collectively in good faith with the Union
and did thereby engage in and is engaging in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(1) and (5) and 2(6) and (7) of the Act.
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 relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
The General Counsel seeks an order requiring the
Respondent to execute the agreement reduced to writing
and signed by the Union dated effective April 1, 1966. As I
have found hereinabove , the terms of this agreement were
agreed to by the Respondent on March 18, 1966, including
the provision for a union shop with six exclusions. The
Respondent is legally required to execute this agreement
as reduced to writing and I shall include in the
Recommended Order herein a provision to that effect. In
so doing, I bear in mind the protestations of the
Respondent that it is ready and willing to execute a
contract with the Union embodying the provisions of
Respondent 's proposed contract of May 18, 1966, which,
to paraphrase the Respondent , is substantially the same as
that of April 1, 1966, except that it does not include the
union shop . To order the execution by Respondent of the
April 1, 1966, agreement is to require it to do more than to
stand by its agreement including the union -shop provision
with six exclusions . While the General Counsel and
complaintant seek an order requiring the Respondent to
pay backpay to all employees under that contract with 6
BORG COMPRESSED STEEL CORPORATION
percent per annum interest, I am not inclined to
recommend it, noting on the record the fact that this is a
small company in a highly competitive situation and that it
sustained losses in the preceding year. Under these
circumstances, I do not believe that a useful purpose in
terms of the statute would be served by assessing the
fullest possible make-whole provision. I will therefore
include a provision in the Recommended Order requiring
that the Respondent, at the request of the Union, proceed
to execute the agreement of April 1, 1966, promptly and
without delay, that the contract as executed be effective as
of the date of its execution by the Respondent, and that its
term be extended so as to expire or terminate 3 years from
the date of its execution by the Respondent.
CONCLUSIONS OF LAW
1. Tulsa General Drivers, Warehousemen & Helpers,
Local Union No. 523, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act
2. Borg Compressed Steel Corporation, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. At all times since May 14, 1965, the said Union has
been the exclusive representative of all the employees in
the unit herein for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
4. By negotiating in bad faith with the Union with no
intention to enter into a final or binding collective-
bargaining agreement, by repudiating and withdrawing a
provision for a union shop after incorporating same in a
proposed collective-bargaining agreement, by refusing to
execute a written agreement embodying terms and
provisions orally agreed on, and by the totality of its
conduct the Respondent has failed and refused to bargain
in good faith with the Union and has engaged in unfair
labor practices within the meaning of Section 8(a)(5) of the
Act, and has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed by
Section 7 of the Act, and thereby has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend that the Respondent, Borg Compressed Steel
Corporation, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Negotiating in bad faith with the Union and refusing
to execute a written agreement embodying terms and
provisions orally agreed upon.
(b) In any other manner refusing to bargain collectively
concerning rates of pay, wages, hours of employment, and
other conditions of employment with the said Union as the
exclusive representative of its employees in the above-
described unit.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
403
join or assist Tulsa General Drivers, Warehousemen &
Helpers, Local Union No. 523, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain
from engaging in such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with Tulsa
General Drivers, Warehousemen & Helpers, Local Union
No. 523, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of all the
employees in the above-described unit concerning rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is
reached embody such understanding in a signed
agreement.
(b) Upon request, execute promptly and without delay
the agreement dated April 1, 1966, embodying the terms
and provisions orally agreed on previously.
(c) Provide for said agreement to be effective as of the
date of its execution by the Respondent and extend the
term thereof so as to terminate 3 years from the date of
execution by the Respondent.
(d) Post at its plants in Tulsa, Oklahoma, and Sand
Springs, Oklahoma, copies of the attached notice marked
"Appendix." 2 Copies of said notice, to be furnished by the
Regional Director for Region 16, after being duly signed by
Respondent's representative, shall be posted by it
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
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 16, in
writing within 20 days from the date of the receipt of this
Decision and Recommended Order, what steps it has
taken to comply herewith.'I
' In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
i In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director , in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT bargain in bad faith with Tulsa
General Drivers, Warehousemen & Helpers, Local
Union No. 523, with no intention of arriving at a final
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
binding agreement nor refuse to execute a written
contract embodying terms and provisions orally
agreed upon.
WE WILL NOT in any other manner fail or refuse to
bargain collectively concerning rates of pay, wages,
hours of employment, and other conditions of
employment with Tulsa General Drivers,
Warehousemen & Helpers, Local Union No. 523, as
the exclusive representative of our employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of their right to self-organization , to form
labor organizations, to join or assist Tulsa General
Drivers, Warehousemen & Helpers, Local Union
No. 523, or any other labor organization, 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 to refrain from any or all
such activity.
WE WILL, upon request, bargain collectively with
Tulsa General Drivers, Warehousemen & Helpers,
Local Union No. 523, as the exclusive representative
of all employees in the bargaining unit described
below, concerning rates of pay, wages, hours of
employment, and other terms and conditions of
employment, and if an understanding is reached,
embody it in a signed agreement . The bargaining unit
is:
All employees working at the employer's
establishments located at 1032 North Lewis,
Tulsa, Oklahoma, 707 East Archer, Tulsa,
Oklahoma, and Sand Springs, Oklahoma,
including truckdrivers reporting to 1032 North
Lewis, Tulsa, Oklahoma, excluding all office
clerical employees, guards, watchmen, and
supervisors as defined in the National Labor
Relations Act, as amended.
WE WILL, upon request, execute promptly and
without delay the agreement dated April 1, 1966,
embodying terms and provisions orally agreed upon,
will make such agreement effective as of the date of
our execution thereof, and will extend the term thereof
to terminate 3 years from the date of our execution
thereof.
BORG COMPRESSED STEEL
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, Room 8A24,
Federal Office Building, 819 Taylor Street, Fort Worth,
Texas 76102, Telephone 334-2921.