Creutz Plating Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1968

172 N.L.R.B. 1 (N.L.R.B. 1968)

Creutz Plating Corporation and Metal Polishers,
Buffers, Platers and Helpers International Union,
Local 68, AFL-CIO. Cases 9-CA-4069 and
9-CA-4300
June 21, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On March 11, 1968, Trial Examiner George Tu-
ritz issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner 's Deci-
sion. He also found that the Respondent had not
engaged in other unfair labor practices alleged in
the complaint and recommended dismissal of those
allegations . Thereafter the Respondent filed limited
exceptions to the Trial Examiner's Decision and a
supporting brief; and the General Counsel filed
limited cross-exceptions to the Trial Examiner's
Decision , and a brief in support thereof and in
answer to the Respondent 's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases 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, cross-ex-
ceptions, and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, as
modified herein.
The Trial Examiner found that the Respondent
violated Section 8(a)(3), (5), and (I) of the Act.
We adopt these findings, to which no exceptions
were filed. The exceptions relate only to the Trial
Examiner's remedy and order.
1. We adopt the Trial Examiner's finding, to
which no exceptions were filed, that the Respon-
dent discriminatorily discharged Thomas Smith
while he was on sick leave , in violation of Section
8(a)(3) of the Act. However, the Trial Examiner
also found that it would not be appropriate to
require the Respondent to offer Smith reinstate-
See Schil! Steel Products, Inc, 161 NLRB 939, 941 , H. W Elson Bot-
tling Company, 155 NLRB 714,7 15 , enfd . as modified 379 F.2d 223 (C.A.
6).
172 NLRB No. 1
ment, because the Respondent, 6 months before
the hearing, made and kept open a proper offer of
reinstatement which Smith was then , and at the
time of the hearing, physically unable to accept.
We find merit in the General Counsel's exception
to this finding. The Board has a particular duty
under Section 10(c) of the Act to tailor its
remedies to the unfair labor practice which has oc-
curred and thereby effectuate the policies of the
Act. Thus, depending upon the circumstances of
each case , the Board must "take measures designed
to recreate the conditions and relationships that
would have been had there been no unfair labor
practice."' Accordingly, we shall order that the
Respondent offer Smith immediate and full rein-
statement to the status he would now occupy had
the Respondent not discriminated against him,
without prejudice to his seniority and other rights
and privileges.'
2. We adopt the Trial Examiner's finding, to
which no exceptions were filed, that the Respon-
dent unlawfully changed the established practice of
checking off dues for employees who had signed
authorizations for such deductions. The Trial Ex-
aminer recommended that the Respondent reim-
burse the Union for all dues it failed to deduct for
and transmit to, the Union plus interest at 6 percent
per annum. We find merit in the Respondent's ex-
ception regarding its dues reimbursement obliga-
tion, as some employees who signed authorizations
might have voluntarily remitted dues to the Union
after the Respondent's unlawful unilaterial action.
Thus the Trial Examiner's remedy in this respect
could result in a windfall to the Union, which would
not effectuate the policies of the Act. Accordingly,
we shall order that the Respondent reimburse the
Union only for those dues which the Union did not
receive as a result of the Respondent's unlawful
failure to deduct and transmit them to the Union,
plus interest at 6 percent per annum.
3. In view of the two discriminatory discharges,
which go to the heart of the Act, and the other ex-
tensive unfair labor practices in which the Respon-
dent engaged, we find no merit in the Respondent's
exception to the Trial Examiner's recommendation
of a broad cease-and-desist order, and find such an
order necessary and appropriate herein to protect
employee rights and make effective the policies of
the Act 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
' See Cranston Print Works , 117 NLRB 1834, 1844 , enforcement denied
on other grounds 258 F.2d 206 (C.A. 4)
3 See N.L.R B v. Entwistle Mfg Co., 120 F 2d 532 , 536 (C.A. 4).
I
354-126 O-LT - 73 - pt. 1 - 2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent , Creutz Plating Cor-
poration , Cincinnati , Ohio, its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally changing hours of work, wage
rates, sick leave privileges , checkoff practices not
violative of law, grievance procedures , job classifi-
cations, or other conditions of employment
established by contract or otherwise , or granting
bonuses , wage increases , or other economic
benefits to employees , without first offering Metal
Polishers , Buffers, Platers and Helpers International
Union , Local 68, AFL-CIO, opportunity to
negotiate concerning such matters.
(b) Terminating a contract with the Union, or
failing to continue in full force and effect all the
terms and conditions of such contract , without of-
fering to meet and confer with the Union for the
purpose of negotiating a new contract.
(c) In any other manner refusing to bargain col-
lectively with the Union as the exclusive represent-
ative of its employees in the appropriate unit with
respect to rates of pay , wages, hours of employ-
ment , or any other terms or conditions of employ-
ment . The appropriate bargaining unit is: All
production employees , excluding foremen,
timekeepers , salaried employees , office employees,
porters, shipping clerks, maintenance men,
truckdrivers , and supervisors as defined in the Act.
(d) Denying sick leave or work to , or discharg-
ing, or otherwise discriminating against , employees
because of their membership in, or activities on be-
half of, the Union or any other labor organization.
(e) Interrogating employees concerning their
union membership or desires in a manner or under
circumstances constituting interference , restraint,
or coercion within the meaning of Section 8(a)( I )
of the Act.
(f) Promising employees benefits if they refrain
from becoming or remaining members of the Union
or any other labor organization.
(g) Urging employees to cease paying dues to
the Union or any other labor organization.
(h) Warning employees that it intends to disre-
gard its contract with the Union and will rid itself of
the Union.
(i) Threatening employees that it will discon-
tinue operations if the employees choose, or insist
on retaining , the Union as their bargaining
representative.
(j) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which, it
is found , will effectuate the policies of the Act:
(a) Upon request , bargain collectively with the
Union as the collective-bargaining representative of
the employees in the appropriate unit, and, if an
understanding is reached , embody such understand-
ing in a signed agreement.
(b) Forthwith reinstitute the prior practice of
deducting union dues from employees ' wages and
remitting them to the Union with respect to those
employees who have authorized , or hereafter
authorize , such deductions , unless such prior prac-
tice is changed without violation of the duty to bar-
gain.
(c) Reimburse the Union for all membership
dues it has not received as a result of the Respon-
dent 's failure to deduct and transmit dues to the
Union since September 21, 1966, with interest
thereon at 6 percent per annum , with respect to
employees who have signed and authorized such
deductions in writing.
(d) Make Louis Goedde whole for any loss of
earnings he may have suffered by reason of the dis-
crimination against him in the manner set forth in
the portion of the Trial Examiner 's Decision enti-
tled "The Remedy."
(e) Offer to Thomas Smith immediate and full
reinstatement to the status he would now occupy
had the Respondent not unlawfully discriminated
against him, without prejudice to his seniority and
other rights and privileges.
(f) Notify Thomas Smith if he is presently serv-
ing in the Armed Forces of the United States of his
right to full reinstatement to the status he would
now occupy had the Respondent not unlawfully dis-
criminated against him , upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(g) Preserve and, upon request , make available
to the Board or its agents, for examination and
copying , all personnel and payroll records and
production records and all other data necessary to
analyze and compute the backpay and reimburse-
ment required by this Order.
(h) Post at its office and place of business, cop-
ies of the attached notice marked "Appendix."'
Copies of said notice , on forms provided by the Re-
gional Director for Region 9, after being duly
signed by Respondent 's representative, shall be
posted by it immediately upon receipt thereof, and
' In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order -
CREUTZ PLATING CORPORATION 3
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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(i) Notify the Regional Director for Region 9, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended , we hereby notify our employees that:
WE WILL NOT change hours of work, wage
rates, sick leave privileges , checkoff practices
not violative of law , grievance procedures, job
classifications , or other established conditions
of employment without first offering Metal
Polishers , Buffers, Platers and Helpers Interna-
tional Union , Local 68, AFL-CIO, an opportu-
nity to negotiate concerning such matters.
WE WILL NOT grant bonuses, wage increases,
or other economic benefits to employees,
without first offering the Union an opportunity
to negotiate concerning such matters to the full
extent required by law.
WE WILL NOT modify or terminate any con-
tract with the Union , or fail to continue in full
force and effect all the terms and conditions of
such contract , without offering to meet and
confer with the Union for the purpose of
negotiating such modification or a new con-
tract.
WE WILL NOT in any other manner refuse to
bargain collectively with the Union as the ex-
clusive representative of our employees in the
appropriate unit with respect to rates of pay,
wages , hours of employment , and other terms
and conditions of employment . The ap-
propriate bargaining unit is:
All production employees , excluding
foremen , timekeepers, salaried employees,
office employees , porters, shipping clerks,
maintenance men, truckdrivers , and su-
pervisors as defined in the Act.
WE WILL NOT deny sick leave or work to, or
discharge, or otherwise discriminate against,
employees because of their membership in or
activities on behalf of the Union or any other
labor organization.
WE WILL NOT interrogate employees con-
cerning their union membership or desires in a
way or under circumstances that would
restrain or coerce them.
WE WILL NOT promise employees benefits if
they refrain from becoming or remaining mem-
bers of the Union or any other labor organiza-
tion.
WE WILL NOT urge employees not to pay
dues to the Union or any other labor organiza-
tion.
WE WILL NOT threaten to discontinue our
operations if the employees choose, or insist on
retaining , the Union or any other labor or-
ganization as their bargaining representative.
WE WILL NOT warn employees that we intend
to disregard our contract with the Union or
that we will rid ourselves of the Union.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exer-
cise of their rights to self-organization, to bar-
gain collectively through representatives of
their own choosing, and to engage in any other
concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activi-
ties, except to the extent that such right might
be affected by an agreement requiring mem-
bership in a labor organization as a condition
of employment as authorized in Section
8(a)(3) of the National Labor Relations Act.
WE WILL, upon request, bargain collectively
with the Union as the collective-bargaining
representative of the employees in the ap-
propriate unit , and, if an understanding is
reached , embody such understanding in a
signed agreement.
WE WILL forthwith reinstitute the prior prac-
tice of deducting union dues from employees'
wages and remitting them to the Union with
respect to employees who have authorized, or
hereafter authorize , such deductions in writing.
WE WILL reimburse the Union for all mem-
bership dues which it did not receive as a result
of our failure to deduct or transmit dues to the
Union since September 21, 1966, with interest
thereon at 6 percent per annum , with respect
to those employees who have signed authoriza-
tions for such deductions.
WE WILL make Louis Goedde, who has
refused our offer of reinstatement, whole for
any loss of earnings he may have suffered as a
result of the discrimination against him.
WE WILL offer to Thomas Smith immediate
and full reinstatement to the status he would
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
now occupy absent the discrimination against
him, without prejudice to his seniority and
other rights and privileges.
WE WILL notify Thomas Smith if presently
serving in the Armed Forces of the United
States of his right to full reinstatement to the
status he would now occupy absent the dis-
crimination against him , upon application in
accordance with the Selective Service Act and
the Universal Military Training and Service
Act, as amended, after discharge from the
Armed Forces.
CREUTZ PLATING
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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 2407, Federal Office Building, 550
Main Street , Cincinnati , Ohio 45202, Telephone
684-3686.
TRIAL EXAMINER'S DECISION
GEORGE TURITZ, Trial Examiner : On charges
filed in Cases 9-CA-4069 and 4300 by Metal
Polishers, Buffers , Platers and Helpers International
Union, Local 68, AFL-CIO, herein called the
Union, and respectively served on October 6, 1966,
and June 7, 1967,1 upon Creutz Plating Corpora-
tion , herein called Respondent and, at times, the
Company, the General Counsel of the National
Labor Relations Board , herein called the Board,
through the Regional Director for Region 9, on
September 12, 1967, issued an order consolidating
cases , consolidated complaint and notice of hearing
against Respondent . Respondent filed its answer in
which it denied all allegations of unfair labor prac-
tices . A hearing on the consolidated complaint was
held before me in Cincinnati , Ohio, on November
15, 16, and 28 and December 13 and 14, 1967. The
General Counsel, Respondent , and the Union were
each represented by counsel at the hearing, but
counsel for the Union participated to a limited ex-
tent except as a witness . The General Counsel and
Respondent have filed briefs with me.
Upon the entire record and from my observation
of the witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation having its
place of business in Cincinnati , Ohio, where it
operates a job shop in which it plates metal articles
belonging to its customers . In the course and con-
duct of its business operations Respondent annually
performs services valued at in excess of $50,000
upon products which it ships from its said plant
directly to customers located outside the State of
Ohio.
It is found that Respondent is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations
Act, as amended , herein called the Act.
II. THE LABOR ORGANIZATION INVOLVED
Metal Polishers , Buffers , Platers and Helpers In-
ternational Union, Local 68, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issue litigated at the hearing was
whether Respondent, by granting bonuses and wage
increases unilaterally and by its conduct in negotia-
tions , engaged in unfair labor practices in violation
of its settlement agreement in Case 9-CA-4069.
Other issues litigated were whether Respondent, in
derogation of the Union's status as exclusive bar-
gaining representative , unilaterally changed various
established terms and conditions of employment,
including wage rates and progressions , job classifi-
cations , grievance procedures, working hours, sick
leave and checkoff privileges, whether Respondent
discriminatorily discharged and refused to reinstate
two employees, and whether, in connection with its
termination of the most recent contract, it failed to
comply with the provisions of Section 8(d) of the
Act.
B. Presettlement Refusal to Bargain
1. Introduction
Since approximately 1930 the Union and
Respondent have had consecutive collective-bar-
gaining agreements covering Respondent's produc-
tion employees, excluding foremen, timekeepers,
salaried employees, office employees, porters,
shipping clerks, maintenance men, and
truckdrivers. The most recent agreement, entered
into as of January 1, 1964, expired December 31,
1966.2
' The respective filing dates were October 5, 1966, and June 2 , 1967 1 G C. Exh 6.
CREUTZ PLATING CORPORATION
From 1956 to 1962 Respondent employed Mau-
rice Green as its general manager . At that time the
Union serviced the plant through Emanuel Wil-
burn, a business representative. In January 1966,
Wilburn, having become International vice pre-
sident, was succeeded by Robert E. McManus as
business representative servicing Respondent's
plant. On February 28, 1966, Green returned to
Respondent as general manager , president, and
principal stockholder.
2. Grievance procedures
McManus visited the plant twice prior to Green's
takeover. He and Green met face to face for the
first time on March 16, 1966, when McManus en-
tered the plant to discuss a possible grievance with
employees. Green told him that the contract
prohibited union business on company time and he
directed McManus not to go into the plant during
working hours but to go to the office. The recogni-
tion clause of the contract, article I, included the
following: "The Union agrees that neither the
Union , nor its members or agents , will solicit em-
ployees for membership, or conduct the Union's
business of any kind, on Company time or during
working hours." McManus replied to Green that
what he was engaged in was company business also,
since it involved a grievance, which he had found to
be without merit. Green invited McManus and the
committeemen into the office , instructing the latter
to punch out, a practice they thereafter followed.
Green testified that during his 1956-62 employ-
ment with the Company, union representatives
discussed grievances with him in the office, and
that when the discussions were held during working
hours, employee committeemen participating
punched out. McManus testified: "The past prac-
tice has been by myself and my predecessor to
make contact in the plant at any time without any
discretion and there was no complaint by the
management up until the 16th of March, 1966."
Obie Messer, who had acted as union steward at
various times since 1962, testified, without con-
tradiction, that before Green's advent in 1966 the
committeemen attending grievance meetings had
never been required to punch out. It is found that
the requirement the employee committeemen
punch out for discussion of grievances with
management represented a change from established
practice. However, McManus' limited experience
with Green 's predecessors, consisting of only two
visits, was insufficient to prove that there was an
established procedure allowing him unlimited and
unannounced access to the plant, especially since at
that time the predecessors were about to give up
the business. It is found that the General Counsel
has failed to prove that Respondent improperly de-
3 The General Counsel also proved that Respondent ordered McManus
not to enter the plant to speak to Taylor, an employee, about his union
dues. As dues collecting is a matter of internal union business, Respondent
5
nied the Union access to Respondent's premises for
the purpose of processing grievances.3
3. Changes in classifications and contractual wage
rates
On April 4, 1966, at Green's request, McManus
went to the plant to discuss a dispute Green had
had with employees. McManus learned that em-
ployees had been receiving helpers' wages but had
been performing what he regarded as platers' work.
He protested to Green and told him that Respon-
dent was not paying the automatic increases called
for by the contract, warning that the Union was "in
a position to take any steps necessary to have him
fulfill the contract on automatic increases." Shortly
thereafter Green approached Messer, one of the
committeemen, and asked what he was doing that.
was wrong. Messer replied, "You got to go by the
contract if you want to get along with the Union....
You got to get some platers ... and not be work-
ing plater helpers as a plater and not pay them
plater wages:" Green replied, "The hell with it. I
won't have it."
The wage schedule in article III of the 1964-66
contract set forth rates for the three following
groups or categories of employees: (1) polisher-
buffer journeymen; (2) plater journeymen; and (3)
platers helpers and apprentices. Apprentices were
to be selected from among the helpers. As to jour-
neymen, only maximum rates were set forth, and
the agreement provided for 5-cent-per-hour in-
creases every 90 days until the maxima for jour-
neymen were reached. The schedule also
established a maximum rate for platers' helpers and
apprentices for each year of the contract and
further provided:
Section 4. a. Starting rate of apprentice, effec-
tive January 1, 1964, shall be $1.50 per hour
with an additional 5 cents per hour increase
every ninety (90) days until he reaches jour-
neymen's maximum rates.
b. Plater helpers starting at $1.50 shall receive
five cents additional at the end of ninety (90)
days; another five cents at the end of another
ninety (90) days; and thereafter every ninety
(90) days until the maximum rates for the jobs
have been reached.
Respondent's payroll and personnel records car-
ried three employee classifications; namely, plater,
racker, and buffer. Of the 29 employees at the time
of the hearing only 1 was classified as a racker, and
that was Respondent's only woman employee.
Three former employees also were so listed, all
women and all hired in October 1966. So far as is
disclosed by the record, no employees were clas-
sified as rackers prior to October 1966. Neither the
was within its rights under the portion of article I of the contract quoted
above.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union nor Respondent carried any of the em-
ployees as apprentices, and the record does not
show that apprentices were employed. Up to 1966
Respondent did employ helpers, who did not work
alone but only together with platers. At some time
prior to April 1966 this practice was discontinued,
and up to October 1966 when the female rackers
were hired, all employees, as they acquired ex-
perience, performed all, or most, types of opera-
tions, sometimes alone and sometimes with another
employee. Racking and material handling were
done by the employees who did plating. Smith and
Poland, testifying for the General Counsel, stated
that there was no distinction among the platers-all
did everything even when two worked together.
However, Green testified convincingly and credibly
that there was a substantial difference between
setting up and running a plating line, with properly
strenghtened solutions for the various baths and
rinses and correctly set and timed current for the
plating proper, on the one hand, and, on the other,
merely running a plating line which a more skilled
plater had set up.
As of April 4 one employee was granted a wage
increase of 11-1/2 cents per hour, one an increase
of 5 cents per hour, and five others increases of ap-
proximately 10 cents per hour; three of the latter
five employees received additional increases on
May 2. Thereafter Respondent gave increases to
various employees at various times, usually,
although not invariably, in the amount of 10 cents
per hour. Increases had been granted previously
also. The contract required 5-cent-per-hour in-
creases every 90 days for all employees until the
established maxima were reached, but the increases
granted by Respondent in general bore no resem-
blance to this requirement either as to amount or as
to periodicity. With the possible exception of the
"night shift differential," referred to below, the
largest number of increases granted at one time,
six, were given on September 5, 1966.4
4. Working hours
In early June 1966, Green posted a notice stating
that the hours of work, until then 7 a.nt. to 4 p.m.,
would be changed to 8 a.m. to 5 p.m. The contract
provided for a normal workday of 8 consecutive
hours, except for lunchtime, but did not specify the
starting or quitting time. Green explained to the
employees the need for the change, which was
based on the fact that Respondent, as the operator
of a job shop, had to make it feasible for customers
to call and give orders in the morning before work
started. He did not discuss the change with the
Union. Employees objected to the change and a
shop committeeman requested a grievance meeting
with McManus, claiming that the change of hours
was a violation of the contract. Green refused, say-
ing that he had nothing to talk about to McManus
on that subject. These facts were reported to Mc-
Manus who did nothing because of Green's refusal
to discuss the matter. The management clause of
the contract included the following: "the schedule
of production, methods, processes, and means of
manufacture, are solely and exclusively the right
and responsibility of the Company."
5. Sick leave
On September 21, 1966, Respondent wrote to
Louis Goedde and Thomas Smith, employees who
were absent with permission because of disabilities,
informing each that he was not "eligible for rehire
because of medical reasons" and terminating his
employment as of that date.' They had been absent
from work approximately 4 weeks and 3 months,
respectively. The contract provided in article V,
section 3, that employees were not to lose their
"seniority status" by reason of sickness or injury,
provided that they returned to work within a year
after the inception of such sickness or injury. It is
found that the termination of the employment of
Goedde and of Thomas Smith represented a depar-
ture from conditions of employment established by
the contract.
6. Checkoff
The 1964-66 contract contained a union-shop
clause but did not provide for a checkoff.
Nevertheless, Respondent continued the practice of
many years' standing of deducting union dues from
the pay of all employees and remitting them to the
Union.
On September 21, 1966, Respondent wrote to
the Union as follows: "This is to inform you that we
are no longer running a checkoff for dues. This is
effective immediately. 'g Respondent had not previ-
ously proposed discontinuance of the checkoff or
discussed it with the Union except to the extent
that in July 1966, when McManus was at the plant
to discuss a grievance, Green had remarked that
the dues withholding was not required by the con-
tract. A committeeman had replied that there had
been an oral agreement with the Company for a
checkoff. On the payday following September 21
each employee received two checks, one for the
amount of union dues and the other for the balance
of his net pay. Stewart, the plant superintendent,
said, as he handed the checks to Charles Poland,
"You pay your dues down at the union hall from
now on. We quit taking it out." Poland encoun-
tered Green standing near three or four other em-
ployees. Green asked, "What are you going to do
with this check; give it to McManus?" When Po-
land said that he would pay his dues Green said he
should spend it on himself. Poland had joined the
' The recipients were Begley, Helton, Sharp, Martin, Kalbfell, and Carr G C Exh 3
5 G C Exh 12 and 15
CREUTZ PLATING CORPORATION
Union upon his employment and had signed an au-
tomatically renewable dues deduction authorization
on January 9, 1965.' Stewart handed Edgar Smith
two checks on that occasion, one of which, in the
amount of $6, had inscribed on it, "refund of Sept.
Union dues,"8 and said, "Here's the union dues
check. If you want to pay your dues, then you're
going to have to pay them yourself. We're going to
quit checking them out." Smith, an employee and
union member for 20 years, had never signed a
checkoff authorization, but his dues had always
been checked off by Respondent and paid over to
the Union. In addition to Poland, only seven em-
ployees were shown to have signed checkoff
authorizations.'
On September 27 counsel for the Union wrote to
Respondent stating, inter alia, that the dues
checkoff which Respondent had discontinued had
been a practice for a great number of years, and
requesting its continuance as in the past.'
7. Refusal to recognize or meet
On October 3, 1966, Respondent filed a petition
for an election in Case 9-RM-461, and on October
4 wrote to the Union electing not to renew the
agreement." In October 1966 Stewart, the plant su-
perintendent, remarked to Edgar Smith that he
wished Smith were like the others, but Smith in-
sisted that he was for the Union. Stewart com-
mented, "Well, if the Union wins, you'll lose. You'll
come to work in an empty building."
On October 5, 1966, the Union filed the charge
in Case 9-CA-4069 , alleging , inter alia, a refusal to
bargain in violation of Section 8(a)(5) of the Act.
On November 1 the Union wrote to Respondent
stating , inter alia , that it was ready to begin negotia-
tions for a new contract at any reasonable time and
place and requesting a reply.12 Respondent replied
on November 23, stating that it had "a good-faith
doubt that Local 68 represents the majority of the
employees in the bargaining unit," that a represen-
tation petition was pending with the Board, and
that it would not enter into negotiations until the
question of representation was resolved.
8. The Christmas bonus
Shortly prior to Christmas 1966 Respondent paid
a bonus to each employee amounting to 1 week's
pay for employees employed 1 year or longer and
proportionate amounts for those employed less
than 1 year, with a minimum bonus of $20 to each
employee. Respondent did not notify the Union of
its intention to make the payment. At Christ-
Resp Exh 6
"GCExh8
Of the eight authorizations in evidence , six were to become effective
during 1965 The other two, which were undated-Rcsp Exh 4 and 7-
were signed by employees hired during 1966
11 G C Exh 20
7
mastime in previous years Respondent had given
employees hams, turkeys, or $5 gift certificates, ex-
cept on one occasion in 1957 or 1958, when the
gift certificate was $20. In view of the substantial
difference in amount or value from the Christmas
gifts in prior years, and of the basis on which the
bonus was computed, it is found that the 1966
Christmas bonus represented wages and that the
payment was an innovation.
C. Promises of Benefit
On April 4 , 1966, the day of McManus ' visit,
Green approached Goedde, one of the stewards,
and told him that at another plant he owned em-
ployees had life insurance at a cost to them of only
$5 per month which , he pointed out, was $1 less
than the monthly dues to the Union . In the first part
of June 1966 Messer told Green that he was leaving
for another job where wages were higher . Green ar-
gued that he furnished gloves and uniforms to the
employees and he said that he was going to try to
get insurance for them in the amount of $5,000 or
$ 10,000 to be paid for by Respondent.
Thomas Smith testified that in the spring of 1966
he overheard Green remark to Stewart "that it's the
lousiest , lousiest union he had ever seen and he
would pay .... more than union wages to get rid of
it." Green denied the incident convincingly and it is
found that the remark was not made."
D. The Settlement Agreement
On December 28, 1966, the Regional Director
dismissed the petition in Case 9-RM-416 and is-
sued a complaint in Case 9-CA-4069, alleging,
inter alia, a refusal to bargain in violation of Section
8(a)(5) of the Act. On January 3, 1967, the Union
wrote to Respondent calling attention to the dismis-
sal of the representation petition, repeating a
request for information it had made in December
without success, and requesting Respondent's
preference as to the time and place for negotiating
a new contract. Kennedy, Respondent's attorney,
contacted Hirsch, who represented the Union,
about January 25, 1967, with a view to settle the
unfair labor practice charge. A settlement agree-
ment was signed on March 1, 1967, and approved
by the Regional Director the next day.14 The settle-
ment agreement provided, inter alia, that Respon-
dent would:
bargain collectively upon request with the
above named union as the exclusive represent-
ative of all employees in the bargaining unit
described herein with respect to rates of pay,
'GCExh5
G C Exh 21
" In view of this finding it will be unnecessary to pass on the question of
whether Green's remark to his superintendent, if made in the circum-
stances described, would have been violative of the Act
11 G C Exhs 2A and 2B
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours of employment or other conditions of
employment , and with respect to changes
heretofore made regarding dues checkoff for
union membership dues , and hours of employ-
ment , and if an understanding is reached,
embody such understanding in a signed
agreement. .
At the time the settlement agreement was executed
Kennedy acknowledged the Union 's demands for
negotiations and promised to furnish the requested
salary data as soon as possible , which he did on
March 14.'s
E. Postsettlement Refusal To Bargain
1. The negotiations
a. General
On March 8 the Union sent Respondent
proposals1e and on March 24 , in conformity with a
request by Kennedy, submitted proposals in the
form of a virtually complete contract .' Kennedy in-
formed the Union that he would confer with his
client about the proposed contract.
On April 7 Kennedy wrote to Hirsch assuring him
that if any statements had been made to the effect
that a Board election would be necessary or that
the Company would refuse to recognize the Union,
the management of the Company disavowed them.
He proposed a negotiating meeting for April 18.
Hirsch agreed to that date , but at Kennedy's
request the first bargaining session was postponed
for 2 days.
On April 10, 1967, Kennedy sent Hirsch a
proposed contract complete except as to term and
"economic issues" other than overtime. The
General Counsel has called attention to the follow-
ing features of Respondent 's proposed contract: (a)
Whereas the settlement agreement and the prior
contract had defined the unit as "all production
employees of the employer ," with certain exclu-
sions Respondent 's proposed contract , while main-
taining substantially the same exclusions,
designated the included employees as, "journeymen
polishers and buffers, journeymen platers, and
operators . . . ." ( b) Article IV set forth a main-
tenance-of-membership provision in section 1, but
section 2 provided that any employee-member
could be relieved of his membership obligation by
giving written notice to the Union 10 days prior to
the first day of any calendar quarter. (c) Article V,
which established a checkoff revocable at any time,
provided that the current amount of union dues was
not to be changed during the term of the agree-
ment. (d) Article V also provided that Respondent
was not to be responsible for negligence or inadver-
tence in failing to check off or remit dues . (e) Arti-
cle VI was described by the General Counsel as "an
unlimited management rights clause."
Prior to the opening of the hearing bargaing ses-
sions were held on the following nine dates, all in
1967: April 20 , May 9 and 18 , June 1 , August 2,
September 14 and 22, and October 3 and 25. Four
of the meetings-those of May 18 , June 1 , and Sep-
tember 14 and 22-were held on the dates
originally agreed to . The meetings on April 20, May
9, and October 3 and 25 were held 2 , 12, 5, and 8
days , respectively , later than originally agreed to,
the postponement in each case having been
requested by Respondent . Following the June 1
meeting the parties arranged to hold the fifth meet-
ing on June 9 , subject to confirmation . On June 8,
for apparently valid reasons , Respondent requested
a postponement , which Hirsch agreed to . When it
came to fixing a new date , however , difficulties
arose , primarily , though not exclusively , because of
the successive vacations and other absences of the
union negotiators , and the fifth meeting was ulti-
mately held on August 2. After the opening of the
hearing discussions about the contract , mostly by
Kennedy and Hirsch , were considerably more
frequent . Some differences were resolved , but final
agreement was not reached.
b. Wages
The subject of wages was first broached at the
third meeting , held on May 18 , 1967, when the
Union submitted a proposed wage schedule. After
extensive discussion Kennedy said that "he would
not be inclined to discuss wage proposals at this
time in view of the fact that it did not complete the
economic cycle . . ."; and after still more discussion
Green commented that he felt that all time involved
in negotiations with a union was wasteful and un-
productive , and that he could be more profitably
engaged in selling his product.
When Green made the above comment, Kennedy
immediately interposed that Green was not serious
and that the company representatives would stay
and negotiate as long as necessary . However , within
I or 2 weeks Green assembled the employees and
told them that he had been doing pretty well and
wanted to share part of it with them . On May 31
each employee received a check designated " Fiscal
year-end bonus." Employees with at least 1 year's
standing received 1 week 's pay; those with less,
proportionate amounts . Respondent had not previ-
ously paid fiscal yearend bonuses or, except for the
Christmas 1966 bonus, anything similar.
In the latter part of May an employee filed a
decertification petition in Case 9-RD-418. At the
fourth meeting , held June 1 , the Union suggested
that wages and economics be discussed at the next
meeting . Kennedy objected , saying that the Com-
pany must first be assured of a reasonable level of
production by defining " law and order." The next
day, June 2 , the Union filed the charge in Case
" G.C Exhs 3IAand3IB " G C Exh 32B.
16G. C Exh.29.
CREUTZ PLATING CORPORATION
9-CA-4300 and also moved to dismiss the petition
in Case 9-RD-418.
In the latter part of June or the first part of July
1967 Respondent delivered to employees checks
for various sums of money. Poland recalled that he
had gone on vacation on July 15, 1967, and had
received his check 2 or 3 weeks before; and the
testimony of Poland and of Edgar Smith was to the
effect that there was general talk in the plant about
these checks and that other employees received
similar checks during the same period . Poland's
check stub read as follows:18 "5 percent of
$1995.28 = Loan ... amount $99.76, net amount
$99.76." Smith's check stub read:19 "5 percent of
$4507.21 paid thru 11/2/67-Loan .. . amount
$225.36, net amount, $225.36." Poland and Smith
both testified that they had heard from other em-
ployees that checks for "the 5 percent" were
available, and that they had gone to Harrison
Stewart, the plant superintendent, and asked if they
could get the "5 percent." Poland testified that
Stewart replied, "Why sure ... it belongs to you .. .
it's just lying there waiting for you ... it will be on
your next check." Smith testified that Stewart said,
"Sure," and promised to tell the bookkeeper. Smith
learned from the bookkeeper that Stewart had
failed to tell her; but she immediately, without
inquiring, offered to get Smith his check that same
day. He received it, at his own request, the day be-
fore payday. Smith and Poland both testified that
they noticed the word, "loan," on their check
stubs. However they testified further that nothing
was said by Stewart or any other representative of
management to the effect that the money
represented a loan, nor about repayment; and they
said that they had not requested loans, had made
no repayment, and did not understand that the
checks represented loans.20 There was no evidence
that Respondent at any time made demand for
repayment.
At the fifth meeting, held on August 2, Wilburn
said that the negotiations were taking too long and
he suggested considering a contract like the old
one, but subject to modification as to wages. Green
refused, saying that he wanted to work out a con-
tract "denoting the fundamental agreement . . . ."
On September 14, at the sixth meeting, Respondent
offered a 5-percent wage increase effective January
1, 1967. The Union accepted the increase "in prin-
ciple," stating, however, that this would depend on
the method of computation of the 5 percent and
also that progression schedules would be required.
At the seventh meeting , held September 22,
Respondent stated that it would have no objection
G. C. Exh. 7.
G. C. Exh. 11.
Smith testified that he thought it was a 5-percent wage increase; Po-
land testified that men in the plant said it was a 5-percent increase that
Green had offered but had not been accepted by the Union and that the
money had been kept by Green in a separate account . Neither witness
testified that any member of management had told him anything to this ef-
fect.
9
to the progressions so long as there was a specific
definition of the jobs in each of the two classifica-
tions . Those matters were not finally agreed on
prior to the opening of the hearing.
At some time not established in the record
Respondent instituted a night-shift differential of 5
cents per hour not called for by the contract.21
Eight employees were receiving it at the time of the
hearing . Green testified that there had always been
such a differential and he denied Hirsch's testimony
that during the negotiations Green asserted that a
night-shift differential was not being paid. The
record does not disclose the periods when the night
shift was worked, nor does it show the dates when
the employees affected first received the dif-
ferential, except to the extent that in each case it
was subsequent to the date of his last wage in-
crease. These dates range from September 1, 1966,
for Colwell to October 30. 1967, for Oscar
Strong .22 I credit Hirsch's testimony and, on the
basis of Green's admission during the negotiations,
find that the differential was instituted at some time
during the 1967 negotiations. While the Union de-
manded a night-shift differential, no agreement on
that point was reached during the bargaining.
c. Contract term
The Union's contract proposal included a provi-
sion that the contract be retroactive to January 1,
1967, and that the term be 2 years. Respondent
withheld any provision as to term from its April 10
contract proposal. At either the August 2 or Sep-
tember 14 negotiating meeting Respondent
proposed that the contract be retroactive to Janua-
ry 1, 1967, and that it expire on December 31,
1967. On September 22 the Union proposed as an
expiration date December 31, 1968. Respondent
proposed February 29, 1968, arguing that that
would amount to 14 months from the effective date
of the contract. On October 3 Kennedy commented
that the basic problems were union security and
contract duration. Stating that he was not making a
commitment, he offered to consider a 1-year con-
tract if offered in conjunction with a union-security
provision containing an escape clause. After the
opening of the hearing Kennedy and Hirsch came
to agreement that the contract, if reached, would
be for 1 year.
F. Conclusions as to Failure To Bargain
Unit and Majority: As alleged and admitted in the
pleadings, it is found that all production employees
21 A note on G. C. Exh. 40, which was prepared by Respondent and set
forth certain payroll information , states that the asterisk next to the rate of
pay for each of the employees in question "Indicates 05 cent Rate In-
crease-2nd shift-Night Differential-."
" G. C. Exh. 40 also shows an asterisk next to the 10-cent increase
granted Colwell at some time between February 28 and April 4, 1966.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Respondent, excluding foreman,
timekeepers, salaried employees, office employees,
porters, shipping clerks, maintenance man, and
truckdrivers constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of Section 9(b) of the Act. Respondent has ad-
mitted that since approximately 1930 the Union
has negotiated consecutive bargaining agreements
covering the employees in the appropriate unit, the
most recent such agreement granting the Union ex-
clusive recognition having been entered into on
January 1, 1964, with an expiration date of
December 31, 1966. These facts establish a pre-
sumption of continuing majority which Respondent
has failed to rebut. See Shamrock Dairy, Inc., 119
NLRB 998, 1002. It is found that at all times
material and, more particularly, at all times during
the years 1966 and 1967, the Union has been, and
it now is, the exclusive bargaining representative of
the employees in the appropriate unit.
1. Violation of the bargaining provisions of the
settlement agreement
By paying employees the "fiscal year-end bonus"
on May 31, 1967, Respondent granted the
equivalent of a wage increase of almost 2 percent.
As the bonus was not even announced to the
Union, the refusal to negotiate about it in violation
of Section 8(a)(5) is plain, even apart from any
question of whether Respondent had a good-faith
intention of reaching agreement with the Union.
N.L.R.B. v. Benne Katz, d/b/a Williamsburg Steel
Products Co., 369 U.S. 736. However, at the
negotiating session of May 18 Respondent had cut
off discussion of wage proposals as premature; and
at the June 1 session it rejected the Union's sug-
gestion that wages be discussed at the following
meeting . By doing unilaterally what it refused to
consider doing through collective bargaining with
the Union, Respondent, in violation of Section
8(a)(5), acted inconsistently with the principles of
collective bargaining and forcefully disclosed its
lack of good faith in the negotiations . N.L.R.B. v.
Crompton-Highland Mills, Inc., 337 U.S. 217, 221.
See also N.L.R.B. v. Katz, supra, 745.
As to the 5-percent payment to the employees in
June or July, it is noteworthy that no employee
requested a loan; nothing was said or done about
repayment, either before or after the transaction;
the checks were delivered routinely and for the ask-
ing, with no explanation or claim by the employees
of any need; and Stewart told Poland, "It belongs to
you. . . ." The legend, "loan," on the check stubs
was thus sharply contradicted by the undenied
evidence as to actions of Respondent of such na-
ture as to cause the employees reasonably to as-
"The same considerations would apply if the transactions had been
loans rather than payments These were not small loans of the type that em-
ployers often make to needy employees in advance of payday , but were sig-
nificant in amount and would have represented a substantial benefit even if
subject to repayment
sume that the money would not have to be repaid,
especially since the occurrence took place in a
period of generally rising wages . It is therefore
found that the 5-percent checks were wage pay-
ments to employees and not loans. As in the case of
the fiscal yearend bonuses, these wage increases
were granted unilaterally and were thus made in
violation of Respondent's duty to bargain, irrespec-
tive of Respondent's motive or good faith; and as
the payments were made at a time when Respon-
dent was refusing to discuss wages with the Union,
they disclosed, further, Respondent's purpose of
undermining the Union and of not engaging in the
negotiations with the good-faith intention of seek-
ing to reach agreement, in further violation of Sec-
tion 8(a)(5) of the Act."
While the Union proposed a night-shift dif-
ferential during the negotiations, no agreement on
that subject was reached, and, more to the point,
there never was any agreement, tentative or other-
wise, that it be placed into effect.24 By granting the
eight employees on the night shift the 5-cent-per-
hour increase in pay, therefore, Respondent further
violated Section 8(a)(5).25
Respondent's insistence up to the opening of the
hearing that any contract entered into expire on
February 29, 1968, was further evidence of its bad
faith in the negotiations and violative of Section
8(a)(5) of the Act. Under the March 2 settlement
agreement Respondent had been obliged to recog-
nize the Union as the exclusive representative of
the employees for a reasonable time. Poole Foundry
and Machine Company v. N.L.R.B., 192 F.2d 740
(C.A. 4), enfg. 95 NLRB 34, cert. denied 342 U.S.
954. While the settlement agreement was set aside
upon issuance of the complaint on September 12,
1967, Respondent's position in this proceeding is
that the action of the Regional Director was not
justified, and that at all times since the settlement
agreement it has been according to the Union full
recognition as statutory bargaining representative
of the employees. Respondent's proposals for a
contract expiring December 31, 1967, less than a
year after the settlement agreement, or for a con-
tract expiring February 29, 1968, were inconsistent
with good-faith bargaining. Section 8(d) of the Act
required Respondent to execute a written contract
incorporating any agreement reached. That
requirement would have little meaning if Respon-
dent could insist that the written contract not run
for a reasonable time after such reaching of agree-
ment . See Insulating Fabricators, Inc., Southern
Division, 144 NLRB 1325, 1329-30, enfd. 338 F.2d
1002 (C.A. 4). Distinguish Lloyd A. Fry Roofing
Company, 123 NLRB 647, 649, where the em-
ployer's position was based upon the admitted fact
that a majority of the employees had signed a peti-
t' The "ground rules" agreed to at the start of the negotiations provided
that agreement on any proposal be tentative and conditioned upon ultimate
agreement on a contract as a whole
"See N L R.B. v Katz, supra, 736
CREUTZ PLATING CORPORATION 11
tion requesting decertification of the certified labor
organization then representing the employees.
By the above violations of Section 8(a)(1) and
(5) of the Act Respondent contravened its un-
dertaking in the settlement agreement to bargain
with the Union as the exclusive representative of all
employees in the unit . It is found that the Regional
Director 's setting aside of the settlement agreement
was proper.
2. Presettlement refusal to bargain
On March 16, 1966, 2 weeks after he had taken
over , Green ordered that stewards , contrary to the
established practice , punch out when discussing
grievances with Respondent . Section 8 (d) of the
Act specifically requires employers to negotiate any
question arising under a collective agreement, i.e.,
grievances , and the procedure for such negotiation
is a mandatory subject of bargaining. See
Bethlehem Steel Company, 146 NLRB 1500, 1502,
enfd . 320 F.2d 615, 620 (C.A. 3). Once
established , whether by express agreement or by
practice , such procedure may not be changed
without bargaining . As the subject of pay for com-
mitteemen was not dealt with in the contract,
Respondent could have proposed to the Union that
the practice be changed and if , after bargaining
about it in good faith , an impasse was reached, it
could have changed the practice without the
Union 's consent . Respondent , however, did not ac-
cept the orderly processes of collective bargaining
and simply imposed its ideas unilaterally , thereby
violating Section 8 (a)(5) of the Act. See Granite
City Steel Company, 167 NLRB 310.
Respondent also violated the Act by unilaterally
changing the established times for beginning and
quitting work, plainly a condition of employment
and a mandatory subject of bargaining , and it even
refused the Union 's request to discuss the matter.
By waiving its right to bargain as to "the schedule
of production " in the management clause of the
contract the Union did not waive its right to bargain
as to starting and quitting times . Respondent also
unilaterally changed the established practice of
checking off dues . While such change was proper
and not violative of the Act insofar as it affected
employees who had not signed authorizations for
such deductions , it was violative of Respondent's
duty to bargain with respect to the employees who
had signed authorizations . The timing of the discon-
tinuance of the checkoff 2 weeks before Respon-
dent filed the petition in Case 9-RM-641, and the
manner of the discontinuance- i.e., giving the em-
ployees separate checks for the dues, urging
Poland, notwithstanding the union membership
requirement of the contract, to spend the dues
money on himself, and the indiscriminate treatment
of those who had and those who had not signed
checkoff authorizations-warrant the inference that
Respondent 's purpose and motive were not to come
into compliance with Section 302 of the Act but
rather to undermine the Union 's status as bargain-
ing representative of the employees.211
Respondent further took it upon itself to change
conditions of employment specifically dealt with in
the contract. On September 21, 1966, it removed
Thomas Smith and Goedde from the payroll
because of illness in the face of the express contrac-
tual provision requiring their retention as em-
ployees with seniority for a period of 1 year after
the inception of their illness . It even changed the
entire wage-progression and job -classification struc-
ture which was so important a part of the contract.
The parties had worked out a system for the orderly
training and advancement of platers to journeyman
status at a pace regulated by the contract. This mu-
tually agreed on scheme was completely disre-
garded by Green, who unilaterally instituted a
system whereby he determined the employees' rate
of advancement. The record is not clear as to the
manner in which the old system of having platers
work with helpers was discontinued, but the only
evidence available is that it took place in 1966 and
prior to April. There is no evidence of waiver by
the Union of the contractual requirements in this
respect, nor of the requirement for periodic auto-
matic wage increases in the amount of 5 cents per
hour. Nor is there evidence or other indication that
what Respondent did was pursuant to its good-faith
interpretation of an ambiguous contract . It is there-
fore unnecessary to consider the question of
whether it would be better policy that this issue be
treated as a mere contract violation, preferably by a
court or arbitrator, rather than as a violation of
Section 8(a)(5) of the Act. Respondent was not in-
terpreting or misinterpreting the contract; it was
simply disregarding it and changing the established
conditions of employment in violation of Section
8(d) and 8(a)(5). Distinguish United Telephone
Company of the West, 112 NLRB 779, 781.
Respondent's outright refusal on November 23,
1966, and at all times thereafter until March 1,
1967, to meet with the Union was in further viola-
tion of Respondent's duty to bargain set forth in
Section 8(a)(5). Indeed , Section 8(d) makes plain
that Respondent had the affirmative duty under
Section 8(a)(5) to offer to meet and confer with
the Union for the purpose of negotiating a new con-
tract when, on October 4, 1966, it terminated the
old one, a duty which Respondent made no
pretense of carrying out. Emphasizing its nonrecog-
nition of the Union and its purpose to induce the
employees to abandon the Union, Respondent paid
the employees a Christmas bonus amounting to al-
most 2 percent of their wages, an unprecedented
action and the equivalent of a wage increase,
without discussing the matter with the Union.
_" For this reason it is unnecessary to meet the question of whether, if
Respondent 's purpose had been to come into compliance with Section 302,
it might properly have discontinued the entire practice rather than only the
unlawful part
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These conclusions are not affected by the pendency
of Respondent 's petition for an election filed on
October 3, 1966. It was ultimately determined that
there was no valid question concerning representa-
tion , and it is found elsewhere in this Decision that
Respondent had previously violated its duty to bar-
gain , discriminatorily discharged employees, and
engaged in other coercive conduct. It is plain that
in withdrawing recognition and filing its petition
Respondent was not motivated by lawful considera-
tions but was seeking to destroy the Union 's majori-
ty status . It is well established that an employer's
duty to bargain is not suspended by the filing of a
representation by the labor organization represent-
ing the employees . Mid-west Towel & Linen Service,
Inc., 143 NLRB 744, 753, enfd. 339 F.2d 958
(C.A. 7). A fortiori Respondent's own petition gave
it no immunity for failing to bargain during the time
spent by the Regional Director in ascertaining the
facts bearing upon the invalidity of the question
concerning representation . See Flambeau Plastics
Corporation, 167 NLRB 735, Trial Examiner's
Decision, adopted by the Board.
It is found that by the above-described conduct
prior to the settlement agreement Respondent vio-
lated Section 8(a)(1) and (5) of the Act.
The complaint , in paragraph 10(a), alleges a
threat of reprisal because an employee had filed a
grievance . On April 1 Lanham and a commit-
teeman told Green that Lanham 's back hurt
because his work was too heavy. Green told him to
rack as few pieces at one time as necessary to avoid
undue strain . After trying this Lanham reported
that his back still hurt and, with Green 's permission
went home . Green told the committeeman that he
would save the work Lanham was supposed to do
for his return , and would give him all the dirty and
heavy work that came in. The General Counsel
contends that this was a threat of reprisal for filing
a grievance . To the Trial Examiner the sequence of
events indicates rather that Green objected to Lan-
ham's having gone home even though told to work
at his own pace . Lanham did not purport to leave
pursuant to any provision of the collective contract,
and there is no other basis on which it can be found
that Green's threat related to any collective activity
or that it represented an attempt to undermine the
Union as bargaining representative of the em-
ployees . Distinguish N.L.R.B. v. Interboro Contrac-
tors , Inc., 388 F.2d 495 (C.A. 2), enfg. 157 NLRB
1295.
The General Counsel contends that Respondent
failed to notify the Federal Mediation Service and
the appropriate State agency of its termination of
the 1964 contract . The General Counsel proved
that the Union had not been notified that such
notices had been sent but he failed to prove that
the agencies themselves had not been notified. The
General Counsel contends that certain of the con-
tract clauses proposed by Respondent evidence its
bad faith in the negotiations . Respondent's attempt
to have the bargaining unit defined differently from
the unit description in the settlement agreement
and the old contract was not improper . Respondent
at no time attempted to exclude any "production
employee " from the unit ; it merely attempted to
define the classifications of employees, a mandato-
ry subject of bargaining , and, in the circumstances
of this case , an especially appropriate one. The
maintainance-of-membership provision proposed
by Respondent would have been effectively negated
by the clause allowing employees to withdraw from
the Union at each calendar quarter . However,
Respondent was not required to agree to a union-
security clause at all . The fact that it started out
with an ineffective clause which could be bargained
up to one acceptable to the Union does not neces-
sarily indicate bad faith. Respondent 's insistence
upon its proposal that dues not be increased during
the term of the contract would be arguably im-
proper if the proposal were to be considered only
as part of the checkoff provision, where it was
placed , since internal union affairs are not a man-
datory subject of bargaining . However, the
checkoff, as is usually the case , was to be included
in the contract to implement the provision requir-
ing union membership as a condition of employ-
ment . See Bedford Can Manufacturing Corp., 162
NLRB 133, and Penn Cork & Closures, Inc., 156
NLRB 411, enfd. 376 F.2d 52 (C.A. 2). When an
employer is asked to make payment of dues a con-
dition of employment, he may properly require, as
a condition for his consent, that the amount of such
payment not be increased during the term of the
contract . Respondent , if acting in good faith, could
also insist upon the further condition that it be ab-
solved of liability for negligence or inadvertence in
connection with the checkoff since it could reject
the proposal altogether . See McLane Company,
Inc., 166 NLRB 1036, fn. 2. Finally, the manage-
ment-rights clause proposed by Respondent was
by no means "unlimited" as contended by General
Counsel. Respondent did include in its proposed
contract provisions fixing various conditions of em-
ployment which to a material extent placed limita-
tions upon Respondent's right to manage its plant.
The General Counsel also contends that Respon-
dent unduly delayed the negotiations . A party to
collective bargaining is not absolved from responsi-
bility for delays because its opposite , after making
efforts to expedite the negotiations, ultimately
agrees to requested postponements . See Insulating
Fabricators Inc., 144 NLRB 1325, enfd. 338 F.2d
1002 (C.A. 4). However, so far as the record
shows , almost all the meetings were scheduled and
postponed by mutual agreement, with the parties
taking into account each other's commitments. Ex-
cept with respect to the second meeting , ultimately
held on May 9 but originally scheduled for April
27, the General Counsel has not established that
the Union protested any of the postponements
requested by Respondent. Kennedy's taking the
time to draft a lengthy proposed contract before
entering into discussions cannot be said to have
CREUTZ PLATING CORPORATION
been a dilatory method of negotiation . Indeed, to
have submitted Respondent 's proposals piecemeal
during the negotiations might well have resulted in
greater delay than occurred . It is found that the
General Counsel has failed to establish that
Respondent refused or failed to meet with the
Union at reasonable times . Finally , I do not find
evidence of bad faith in the nature of the discus-
sions engaged in by Respondent considered alone,
as distinguished from their consideration in con-
unction with Respondent 's conduct away from the
bargaining table.
G. Conclusions as to Threats , Promises of Benefit,
and Interrogation
Green 's statement to Messer , referring to the
contractual requirements for classifications and
wages , "The hell with it. I won't have it ," disclosed
to the employees that the guaranteed right to bar-
gain collectively would not be respected by
Respondent . The remark was therefore coercive.
His interrogation of Poland at the end of September
1966 as to whether he was going to continue to pay
dues to the Union was plainly not for the purpose
of obtaining legitimately needed information con-
cerning compliance with the union-security clause
of the contract or any other matter ; he urged Po-
land at the same time not to pay the dues but to
spend the money on himself. See Blue Flash Ex-
press, Inc., 109 NLRB 591; Struksnes Construction
Co., Inc., 165 NLRB 1062. Moreover, Green's
urging Poland not to pay his dues , especially in the
face of the contractual requirement , was similarly
violative of the Act. See Capital Distributing Co.,
147 NLRB 1138, 1139 . His suggestion to Goedde
and then to Messer that Respondent might get the
employees life insurance under advantageous terms
was a scarcely disguised promise of benefit made to
convince the employees that they would be better
off economically if they abandoned the Union.
Stewart also made an illegal threat when he urged
Edgar Smith to abandon the Union " like the
others" and threatened that if the employees in-
sisted on having the Union , they would find that
Respondent had moved away, leaving "an empty
building." It is found that each of the above-
described incidents constituted a violation by
Respondent of Section 8(a)(1).
H. The Discriminatory Discharges
Thomas Smith was hired in 1963 as a helper in
plating . He joined the Union and remained a
member throughout his employment. In February
1965 he was injured, with the result that he could
not manage as heavy loads as previously , at least on
the barrel line.27 He reported this to the foreman,
47 The barrel line was a line for plating small articles which, instead of
being individually hung on racks for immersion in the various baths and rin-
ses, were shoveled into a barrel which was then immersed.
13
who said to him, "Anytime you need any help, call
on me . Just wait till I come and I'll dump it for
you." On April 9, 1966, Smith filed a grievance
because another employee had been given work in
preference to him , which Respondent rejected. On
June 27, 1966, Smith hurt his back while working
and, with permission , he went home . He was al-
lowed workmen 's compensation after a trial.
On September 21, 1966, as already noted,
Respondent wrote to Smith that he was "not eligi-
ble for rehire because of medical reasons " and that
as of that day he was "no longer in the employ" of
Respondent . In the settlement agreement in Case
9-CA-4069 Respondent agreed to offer Smith and
Goedde, discussed below , "immediate and full rein-
statement to their former or substantially
equivalent positions without prejudice to any
seniority or other rights and privileges previously
enjoyed ." On March 15 , 1967, Respondent wrote
to Smith making such an offer .2B Smith informed
Green that he had not been released by his physi-
cian but that he would report for work as soon as
he was . Green agreed to wait . On April 24 Smith
reported for work and presented the following
letter , signed by his physician:29
April21, 1967
To Whom It May Concern:
. RE: THOMAS E. SMITH
This is to verify that I have been treating the
above-named since 2-3-65 . On 11-19-66 he
had surgery for lumbar laminectomy. He may
return to work on April 24, with limited lifting
and bending . Lifting should not exceed 5
pounds.
Green refused to put Smith to work. He told Smith
later that day that the doctor had informed him that
he was not able to return at that time , and that
Respondent could not take him back until he could
do the same job as he had done before . He did not
state that Green would not be reinstated eventually.
Smith called the doctor himself and was told that
he "had to take it easy " in view of the type of
operation he had had , but that "within a year" he
would be able to return to his former "full status."
On November 16, 1967 , when he testified, Smith
still wore a brace , was unable to "bend completely
in half" but had to stoop; and he could not bend
backwards or from side to side . He testified, "I
could not run the tanks because it involves
stretching and a lot of lifting up over my head with
parts, that I could not do. But with racking, the
racks sat there and all you had to do was rack it,
and then the plater took it off the rack here for you
and ran it himself." Smith 's last wage rate was
$1.915 per hour.
G.C.Exh.16
's G. C. Exh. 18.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goedde worked for Respondent in the plating de-
partment from April 1963 to August 1966, at which
time his hourly pay was $ 2.215. He became union
steward in March 1966 and on April 1 acted for
Lanham when that employee complained that his
work was too heavy. He was the steward who ob-
jected to the change in working hours in June 1966,
told Green that the change was a violation of the
contract , and unsuccessfully attempted to arrange a
meeting between McManus and Green.
In August 1966 Goedde informed Green that he
would need an operation for a hernia . He presented
a note from his physician to the effect that he could
work until arrangements could be made for the
operation , but Green refused to allow that. The
operation was performed in late August and 3
weeks later Goedde told Green by telephone that
he could go back for light work. Green said that he
wanted to speak to the doctor first . The next day
Goedde received from Respondent the letter al-
ready referred to dated September 21, 1966, sever-
ing his employment . He called Green , who said that
he had no light work for him. On Se ptember 28
Respondent wrote further to Goedde as follows:30
Doctor Mattheis has informed me that you will
not be fit for work at least for a month. We
feel this operation puts you in jeopardy and ef-
fects [ sic] us insurance-wise since this can re-
occur at any time . We feel in the best interests
of all, our original letter still stands . This will
enable you to get unemployment compensation
and get another job more suited to your ability.
Two weeks after the second letter to Goedde, on
October 11 , 1966, Respondent hired Pauline Bal-
lard as a racker , at $1.70 per hour . On October 24
Vona Ruth Faulkner was hired as a racker at $2 per
hour , and on October 31 Gloria Carter and Ruby
Woods were hired as rackers at $1.40 per hour.
Woods quit at some time before Christmas 1966.
Ballard was still employed as of the time of the
hearing . Faulkner and Carter remained at least
until Christmas , but they were laid off sometime
between Christmas and the end of May 1967.31
From time to time up to the opening of the hearing
Respondent also hired other employees in the plat-
ing department , including the following : Johnson at
$1.60 per hour on September 26; Simpson at $1.75
on October 4; Bullock at $ 1.70 on October 5; and
Fletcher at $ 1.70 on October 6, all in 1966 . All but
Simpson remained at least through Christmas, and
Bullock remained at least through May 1967.
Pursuant to the settlement agreement Respon-
dent on March 15 ; 1967, offered Goedde reinstate-
ment . 32 He did not accept the offer.
Green testified that employees in the plating de-
partment were shifted from one line to another
without any set pattern , depending on need and on
their respective capabilities . He also stated that the
physical effort involved varied considerably accord-
ing to job. The record shows that most of the lifting
that platers had to do did not involve particularly
heavy loads, but that physical strain resulted from
the frequency of the lifting and from the need to
manipulate the loads from difficult positions.
Conclusions as to Goedde and Smith
Respondent 's animus towards the Union is well
established by Green 's unfair labor practices al-
ready found . Goedde had stood out among the em-
ployees as a union supporter . He had been a shop
steward and had acted as spokesman for the em-
ployees in opposition to the change of hours.
Green 's testimony that the plating department em-
ployees were expected to be able to do all kinds of
work does not bear scrutiny . Goedde's disability
was not an uncommon one. Moreover , knowing
that he could return to full duty in a month and
perform lighter duties in the meantime, Green
completely served his employment in plain viola-
tion of Respondent 's contractual obligations and a
short time later hired four women employees to do
nothing but racking , which Goedde could have
done . He also hired five male employees between
September 26 and October 6 at $1.60 to $1.75 per
hour , rates from which it must be inferred that the
men were not experienced platers . The inference is
warranted that Goedde would have been able to
perform his full duties much sooner than they and
that Green assumed this . The discontinuance of the
checkoff the same day and the filing of a petition
for an election 2 weeks later seriously affect the
weight of the only evidence that the discharge was
in fact for medical reasons ; namely, Respondent's
self-serving letter . On the basis of all the testimony
it is found that Respondent seized upon Goedde's
temporary and partial disability as a pretext to con-
ceal its true motive in dischargin* him, namely, his
activities on behalf of the Union , and that by
discharging Goedde on September 21, 1966,
Respondent violated Section 8(a)(1) and (3) of the
Act.
Thomas Smith 's union activity was confined to
membership , a status he shared with all employees
except one Taylor . It cannot be inferred that the
grievance he had filed in April carried over as
motivation for Respondent 's action in September.
On the other hand Respondent offered no evidence
to explain why it was moved to act against Smith
when it did . Having done nothing about his disabili-
ty for 3 months, Respondent suddenly terminated
his employment on the same day that it took two
actions to discourage union membership- it discon-
tinued the checkoff and it discharged Goedde. For
' G. C Exh 13
" The above findings as to terminations are based upon whether or not
.he employees received Christmas and fiscal yearend bonuses , as disclosed
by G C . Exh. 40
,' Resp Exh 9.
CREUTZ PLATING CORPORATION 15
these reasons it is inferred that Smith was ter-
minated in order to lend apparent substance to the
pretext offered to explain Goedde 's discharge. See
Majestic Molded Products, 143 NLRB 71, enfd. 330
F.2d 603 (C.A. 2); American Bottling Co., 99
NLRB 345, 352, enfd. 205 F.2d 421 (C.A. 5), cert.
denied 346 U.S. 921.
After the settlement agreement Respondent un-
conditionally offered Smith reinstatement but was
informed that part of a vertebra next to Smith's
spinal cord had been removed . This condition was
considerably more disabling and serious than the
disability he was under before his injury in June
1966. At the time of the hearing , almost 18 months
after he had left work, Smith was still partially dis-
abled and the prognosis was that his full recovery
would take a substantial lengh of time . All plating
work involved much bodily movement and it was
not unreasonable that Respondent feared that a
mishap injuring his spinal cord could have had seri-
ous consequences for Smith. I therefore find that
Respondent 's refusal to permit Smith to return to
work was not improper and that the General Coun-
sel has failed to prove that it was discriminatory.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, in-
timate, 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
As it has been found that Respondent has en-
gaged in certain unfair labor practices , it is recom-
mended that the Board issue the Recommended
Order set forth below requiring Respondent to
cease and desist from said unfair labor practices
and to take certain affirmative action which will ef-
fectuate the policies of the Act.
As Respondent offered Goedde full reinstate-
ment, which he did not accent, it will not be
required to repeat the offer. However, Respondent
will be required to make Goedde whole for any loss
of earnings suffered by reason of the discrimination
against him by payment to him of a sum of money
equal to what he would have earned from Sep-
tember 21, 1966, when he was discharged, to the
date of Respondent 's offer of reinstatement , less his
net earnings during said period , computed in ac-
cordance with the formula stated in F. W. Wool-
worth Company, 90 NLRB 289, with interest
thereon at the rate of 6 percent per annum, com-
puted in the manner described in Isis Plumbing &
Heating Co., 138 NLRB 716. The questions of
whether Respondent would normally have reduced
Goedde's pay during his partial disability and, if so,
what the exact period of such partial disability was,
can be resolved during the compliance stage of the
case. It is recommended also that Respondent
preserve and, upon request, make available to the
Board and its agents, payroll, production, and other
records to faciliate the computation of backpay.
In Smith 's case Respondent 's unconditioned offer
of reinstatement was not accepted because of his
inability to meet the job requirements, which I have
found Respondent could properly insist upon. This
inability was still extant on November 16, 1967,
when Smith testified, which was over 6 months
after Respondent refused to put Smith to work and
more than 14 months after he left work because of
his disability and it must be inferred from Smith's
testimony that the disability continued for a sub-
stantial time after he testified. As Respondent has
made a proper offer of reinstatement, which,
moreover, it left open, and as Smith has been un-
able to accept it for so long a period, an order
requiring renewal of the offer, or that it be kept
open, would not be appropriate. Distinguish Crans-
ton Print Works Company, 117 NLRB 1834, and
Mook Weiss Meat Packing Company, 160 NLRB
546, involving refusals to reinstate found to be dis-
criminatory. In view of the foregoing, whatever loss
of earnings was suffered by Smith during the period
of discrimination against him was not the result of
the discrimination. For these reasons it is not
recommended that Respondent take any affirma-
tive steps to remedy the discrimination against
Smith.
Counsel for the Union stated that although the
earlier negotiations had been "an exercise in futili-
ty," since Respondent had not made a "valid effort
at arriving at a contract," he felt that in negotia-
tions subsequent to the opening of the hearing
Respondent had been making an honest attempt to
arrive at a solution for a contract. This change of
attitude on Respondent's part did not remedy
Respondent's failure to bargain. There is no as-
surance that Respondent will not revert to its
former attitude, particularly at such time as its able
counsel leaves Green to his own devices. So far as
Green was concerned, the negotiations were a
waste of time. Moreover, even with Respondent's
counsel in the picture Respondent violated Section
8(a)(5) by paying out the fiscal yearend bonus and
the 5-percent so-called "loans" by instituting the 5-
cent night-shift differential, and by insisting on a
contract of unreasonably short duration. The usual
remedy for violation of Section 8(a)(5) is, ac-
cordingly, recommended.
Respondent's many-sided violations of the Act,
its action in entering into , and then violating, the
settlement agreement, its distribution of bonuses
and the so-called "loans" while purportedly bar-
gaining with the Union, and Green's statement that
bargaining was a waste of time , all indicate a
disposition on Respondent's part not to abide by
the law insofar as the Act is concerned. It is there-
fore recommended that Respondent be required to
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pease and desist from infringing in any manner on
the rights of the employees guaranteed in Section 7
of the Act.
Upon the basis of the foregoing findings of fact
and of the entire record in this case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Respondent, Creutz Plating Corporation, is
engaged in commerce within the meaning of Sec-
tion 2 ( 6) and (7) of the Act.
2. Respondent is, and at all times material has
been , an employer within the meaning of Section
2(2) of the Act.
3. Metal Polishers , Buffers, Platers and Helpers
International Union, Local 68, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
4. By discriminatorily terminating the employ-
ment of Louis Goedde and Thomas Smith Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3)
and (1) of the Act.
5. All production employees of Respondent, ex-
cluding foremen , timekeepers , salaried employees,
office employees , porters , shipping clerks, main-
tenance men, and truckdrivers constitute a unit ap-
propriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
6. At all times since prior to January 1, 1966,
the Union has been, and it still is, the exclusive
representative of all the employees in the ap-
propriate unit for the purpose of collective bargain-
ing in respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment, within the meaning of Section 9(a) of
the Act.
7. By refusing to bargain collectively with the
Union as the exclusive representative of all its em-
ployees in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of
the Act.
8. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
9. The unfair labor practices described above
are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publica-
tion. ]