Cummer-Graham Co.

National Labor Relations Board - Board Decisions

Jan 26, 1959

122 N.L.R.B. 1044 (N.L.R.B. 1959)

1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By failing and refusing to bargain with the Union the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not engage in unfair labor practices by the interrogation
of employees in May 1957 by George Gage and Jerome L. Cleveland.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Automotive Mechanics Lodge No.
510, AFL-CIO, or in any other labor organization of our employees, by
discriminating in regard to their hire or tenure of employment or any term
or condition or condition of employment.
WE WILL NOT interfere with, restrain, or coerce our employees in the exer-
cise of the right to self-organization, to form labor organizations, to join or
assist Automotive Mechanics Lodge No. 510, AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or to refrain from any and all
such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act.
WE WILL offer to Frank Matteoni and James Getchell immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to their seniority and other rights or privileges, and will make them
whole for any loss of pay incurred as a result of the discrimination against
them.
WE WILL upon request bargain collectively with Automotive Mechanics
Lodge No. 510, AFL-CIO, as the exclusive collective bargaining representative
of the employees in the appropriate bargaining unit, and if an understanding
is reached embody such understanding in a signed agreement.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of the above-named union or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
with Section 8 (a)(3) of the Act.
T RANSAMERICAN FREIGHT LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Cummer-Graham Company and International Woodworkers of
America, AFL-CIO. Cam No. 89-CA-608. January 26, 1959
DECISION AND ORDER
On July 15, 1958, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
122 NLRB No. 134.
CUMMER-GRAHAM COMPANY 1015
labor practices, and recommending that the Respondent cease and
desist therefrom and take certain affirmative action, as set forth in
the Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations, of the Trial Examiner with the modifications noted
below.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cummer-Graham
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Wood-
workers of America, AFL-CIO, as the exclusive representative of
i Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Leedom and Members Rodgers and Jenkins].
2 We agree with the Trial Examiner that the Respondent's position was far more
extreme than the employer's position in White's Uvalde Mines, 117 NLRB 1128, enf.
denied in part, 255 F. 2d 564 (C.A. 5). The Respondent here not only insisted upon
reserving absolute unilateral control over every significant term and condition of employ-
ment, with no provision for any arbitration, but also demanded that the Union bind Itself
to a no-strike clause with a money penalty. Moreover, unlike the White's case, which
turned solely on a consideration of contract proposals, the Respondent here engaged in
conduct which furnishes additional evidence of a refusal to bargain in good faith. Thus,
the record shows that the Respondent employed a variety of techniques to delay and
impede the bargaining and otherwise frustrate the Union's negotiators In their efforts to
reach "an agreement consistent with the respective rights of the parties." Majure v.
N.L.R.B., 198 F. 2d 735, 739 (C.A. 5). The Respondent's actions and inactions in this
regard are fully set forth in the Intermediate Report and need not be repeated here.
3 The charge, which was filed and served on October 19, 1956, alleged that on Septem-
her 19, 1956, the Respondent refused to bargain in good faith. The complaint alleged,
and the Trial Examiner found, that on and after February 16, 1956, the Respondent
refused to bargain in good faith. The Respondent attacks the complaint and the Trial
Examiner's finding asserting that the Board's jurisdiction was limited to inquiry into the
Respondent's conduct on the date given in the charge. We find no merit in this con-
tention. The Board is not limited to the precise allegations of the charge, but may
include in the complaint similar and related conduct which occasioned the charge.
N.L.R.B. v. Epstein, 203 F. 2d 482, 485 (C.A. 3), cert. denied 347 U.S. 912; N.L.R.B. v.
Kohler Company, 220 F . 2d 3, 7-8 (C.A. 7) ; Douds v. International Longshoremen's
Association, 241 F. 2d 278, 283-285 (C.A. 2). As the allegations of the complaint here
were limited to such conduct, we find the charge legally sufficient to support the complaint.
However, as Section 10(b) of the Act precludes the Board from predicating a finding of
an unfair labor practice on conduct occurring more than 6 months prior to the issuance
and service of a charge, we find, contrary to the Trial Examiner, that only on and after
April 20, 1950, did the Respondent refuse to bargain in good faith. Senorita Hosiery
Mills, Inc., 115 NLRB 1304, 1305, footnote 3; Boise Implement Company, 106 NLRB 677.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all its employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and conditions
of employment.
(b) In any like or related manner interfering with the rights of
employees guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively in good faith with Inter-
national Woodworkers of America, AFL-CIO, as the exclusive
representative of the employees in the appropriate unit, with respect
to rates of pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is reached, em-
body such understanding in a signed contract.
(b) Post at its plant in Beaumont, Texas, copies of the notice
attached hereto marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt
thereof and be maintained by it for a period of sixty (60) con-
secutive 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.
(c) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, as to
what steps it has taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the Labor
Management Relations Act, we hereby notify our employees that :
WE WILL bargain collectively upon request with International
Woodworkers of America, AFL-CIO, as the exclusive bargaining
representative of all our employees in the appropriate unit
described below with the respect to rates of pay, wages, hours
of employment , and other terms and conditions of employment,
and if an agreement is reached , embody such understanding in
a signed contract . The appropriate unit is:
All production and maintenance employees at our Beau-
mont, Texas, plant , excluding office clerical employees, all
CUMMER-GRAHAM COMPANY 1047
logging operation employees , guards, watchmen, professional
employees , salesmen , and supervisors as defined in the Act.
CUMMER-GRAHAM COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by International Woodworkers of America , AFL-CIO, herein
called the Union , the General Counsel of the National Labor Relations Board,
herein called the Board , by the Acting Regional Director for the Sixteenth Region
(Fort Worth, Texas ), issued his complaint dated July 8, 1957, against Cummer-
Graham Company, herein called the Company, alleging that the Company had
engaged in and was 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 Na-
tional Labor Relations Act, 61 Star. 136, herein called the Act. Copies of the
complaint , charge, and notice of hearing were duly served upon the parties.
With respect to the unfair labor practices , the complaint alleged that the Com-
pany on or about February 16, 1956, and at all times thereafter refused and con-
tinues to refuse to bargain with the Union in violation of the Act. The Company's
answer denies the averment of statutory violation in the complaint.
Pursuant to notice , a hearing was held at Beaumont , Texas, on various dates
between October 1, 1957, and January 8 , 1958. Ruling was reserved on the
Company's motion at the hearing for dismissal of the complaint . This motion is
disposed of in accordance with the findings and conclusions herein made. After
the close of the hearing the General Counsel and the Company filed briefs which
have been carefully considered.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The complaint alleges and the answer admits that: The Company is a Texas
corporation with its principal office in Paris, Texas; it is engaged in the manufac-
ture, sale, and distribution of wood, wirebound boxes and related products and for
this purpose operates several plants in different cities of Texas including one at
Beaumont, Texas, this being the only plant involved in this proceeding; in the
12 months preceding the issuance of the complaint the Company manufactured,
sold, and shipped products from its plants in Texas in interstate commerce to other
States valued in excess of $100,000. These facts are sufficient to support a finding
which I make that the Company is engaged in commerce within the meaning of
the Act and that assertion of the Board's jurisdiction over the Company's operations
will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Woodworkers of America, AFL-CIO, is a labor organization ad-
mitting to membership employees of the Company.
III. THE UNFAIR LABOR PRACTICES
The Union was certified by the Board in February 1956 as the exclusive bar-
gaining representative of the Company's employees in an appropriate unit consisting
of all production and maintenance employees at the Company's Beaumont, Texas,
plant, excluding office clerical employees, all logging operation employees, guards,
watchmen, professional employees, salesmen, and supervisors as defined in the
Act. By letter dated February 28, 1956, the Union requested the Company to meet
with it on March 5, 1956. Arrangements were thereupon made for a first meeting
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to negotiate a labor contract which was held on March 23, 1956, at Beaumont.
Subsequently, there were 12 other bargaining meetings, the last of which was held
on March 7, 1957. The parties did not thereafter meet despite their failure to
reach agreement on a complete contract.
The sole issue in this proceeding is whether the Company, as the General Counsel
contends, violated Section 8(a)(5) by not bargaining during its negotiations with
the Union for a labor contract with the good faith required by the Act. In
elaboration of the assertion of the Company's bad-faith bargaining, the General
Counsel's brief characterizes the Company's tactics at the bargaining table as mere
"surface bargaining," as "shadow boxing to a draw," and as "giving the Union a
runaround while purporting to be meeting with the Union for purposes of collec-
tive bargaining." This challenge is augmented in the brief with references to the
Company's conduct which the General Counsel argues collectively demonstrate the
Company's bad-faith bargaining. In substance, the General Counsel relates that
the Company had resorted to delay and procrastination by not agreeing to suffi-
ciently frequent and lengthy meetings, by not providing a negotiator whose time
was available for bargaining meetings at reasonable intervals, by wasting the meager
time which it made available for bargaining by needless reviews at each session of
what had transpired before, by inadequate preparation, by sterile discussions which
led to neither acceptance nor rejection of proposals, by indulging in irrelevant
discussions, by prolonged discussion of an illegal counterproposal which was finally
abandoned without notice or explanation, by discarding agreements reached through
lengthy discussion and substituting therefor new proposals, and by changing posi-
tion on agreements reached on specific proposals. In addition, the General Counsel
submits as proof of the Company's insincerity that while the Union made numer-
ous and substantial concessions, the Company conceded only trivial terms and
negated even such concessions by the imposition thereon of numerous stultifying
qualifications; that with respect to certain existing employment terms or practices
the Company insisted upon changes which would have worsened conditions for its
employees; and that the Company demanded an agreement whereby it would have
unilateral control over the determination of all substantial terms and conditions of
employment for its employees with relinquishment by the Union of any voice in
these matters, and at the same time demanded a no-strike clause from the Union
with financial penalties while refusing to grant any arbitration whatever on grievable
matters.
In contrast, the Company's brief maintains that its negotiators met at reasonable
intervals with the Union's spokesmen on mutually convenient dates, and that if
there was delay in meeting more frequently it was the fault oif the Union. It
points to the fact that it did not after the last meeting with the Union refuse to
hold further meetings; that it cooperated with the Union by furnishing all data
requested and by discussing all questions and issues raised at the meetings; that
agreement had actually been reached by both sides on virtually all aspects of the
Company's counterproposed contract with notable concessions by the Company, and
that the failure of the Union to sign this contract was because of its unyielding
position on certain matters, particularly its insistence upon a wage increase which
the Company would not grant. In all, the Company argues, it had bargained with
an open mind as evidence by the concessions it had made to the Union's demands
in contrast with the Union's inflexible attitude concerning issues over which there
was disagreement. The onus for failure to reach an agreement, the Company says,
is not its fault but that of the Union, and concludes that in this circumstance it
may not be regarded as a violator of Section 8(a)(5) of the Act.
Before detailing the factual findings which I deem crucial, I offer these comments
regarding the issue before me. The General Counsel theorizes that it is "the
summation of the Company's actions and omissions in connection with the bar-
gaining conferences" which demonstrates the Company's bad faith. The General
Counsel correctly concedes, as does the Company, that the determination of whether
the Act was violated depends upon a consideration of all the facts in this case.
These facts are to be found essentially in the transcribed notes of what was said
by those present at the 13 bargaining sessions. There are in addition the documents
placed in evidence containing the writings of the parties exchanged in connection
with the negotiations, and the correspondence between the parties relative to their
meetings . There was also testimony at the hearing by certain witnesses who were
present at the meetings concerning what transpired there. Because the accuracy
of the transcribed notes taken at the meetings has been vouched for by the parties,
I have relied upon them rather than any differing testimony of the witnesses in
determining what was said and done at the meetings. Where, however, these
notes are silent about some matter which I am satisfied was discussed, and where
CUMMER-GRAHAM COMPANY 1049
a witness has presented credible testimony regarding such matter, I have relied upon
his testimony to ascertain the facts related therein.
The Union's spokesmen at the negotiations were A. M. Collins and J. B. Hanna,
officials of the Union, and Joe R. Rivers, an international representative of the
Union. Collins was present at all the meetings but the last. Hanna appeared
only at several of the earlier meetings. Rivers attended all sessions . Several
members of the employee negotiating committee were passively present at all the
meetings. The Company's sole spokesman during all the negotiations was Mr.
0. B. Fisher, who was also counsel for the Company in this proceeding. Present
with him at all times were one or more officials of the Company whose contribu-
tions to the discussions were insubstantial.
I turn first to the facts concerning the Union' s alleged request for more frequent
and lengthier meetings and the Company's alleged refusal to comply with these
requests. As noted, the initial meeting was held on March 23, 1956, pursuant to
the Union's request of March 5, 1956. This meeting began and ended in the
afternoon . The reporter' s notes do not show the exact starting and quitting time,
but I estimate from the 35 pages of transcribed notes and from comparison with
other notes of negotiations in which the time consumed was indicated by the re-
porter, that the March 23 negotiations did not exceed 2 hours. Near its con-
clusion the union spokesmen asked Fisher for a next meeting date. The latter
indicated his busy legal schedule and suggested an April 27 or 28 meeting. The
Union asked for an April 20 date with a starting time in the morning. Fisher
countered with April 21 at 2 p.m. The Union asked that the meeting start at
1 p.m. that day and Fisher agreed.
The April 21 meeting, according to the reporter's notes, started at 1:30 p.m. and
ended at 5:25 p.m. The notes state that there was a discussion at the close of the
meeting concerning a next meeting date, but indicate merely that Fisher had offered
some comments about having law cases almost each Monday and that he was
scheduled to be at Trinity, Texas, on May 4. The notes show further that Fisher
suggested tentatively that there be a meeting on the first Saturday following May 5
and that the parties agreed to resume their negotiations on May 12 at 1:30 p.m.
Collins, however, testified that at this meeting the Union had asked Fisher to meet
as early as possible and to stay in session as long as possible because there was
so much work to be done, and that the Union had asked for a meeting the next
week, but that Fisher replied that he could not meet then. Collins was not sure
what Fisher had actually said but recalled that Hanna had argued with him about
an early date and had accused Fisher of giving his courtwork priority over the
negotiations.
The May 12 meeting started at 1:30 p.m. Fisher stated at the outset that he
would work that day only until 4 p.m. and not until midnight as requested by the
Union, because the next day was Mother's Day which he had not taken into
account when he had scheduled this meeting. He further said that he had to catch
a 4:52 p.m. plane to get back to Paris, Texas. At the close of the meeting Fisher
remarked that the next meeting should be a month later to give him time to study
the Union's job classifications and proposed rates. The Union observed that these
classifications and rates should be discussed at the next meeting but felt that they
should not delay convening for a month. Fisher stated that he did not want to
wait that long and suggested that the parties see what their situations would be
between then and May 17 before setting a date for a next meeting. He claimed
he had matters coming up which he believed would be disposed of before May 17,
but added he would probably be tied up for 2 weeks after that date. According
to Collins' testimony it was then left to Rivers and Fisher to agree at Trinity, at
a representation hearing at which both were to be present a few days hence, when
there was to be a next meeting. I estimate that the time consumed for the May 12
meeting was about 21/2 hours.
The June 2 meeting started at 10 a.m. and concluded that afternoon in time
for Fisher to catch his plane, presumably at 4 p.m. There is nothing in the re-
porter's notes as to what was said about a next meeting. Collins, however,
testified that Fisher had stated that June 16 was the earliest date when he could
meet again and that the Union accepted this date as the best it could get. I
estimate that 5 hours were spent in negotiations on June 2.
The June 16 meeting started at 9:15 a.m. and ended at 3:30 p.m. Fisher sug-
gested a next meeting on the Saturday subsequent to June 25. The Union pointed
out it had a meeting scheduled for June 30 and proposed that the parties meet
the very next Saturday. Fisher stated he had law cases which prevented meeting
on this date and suggested a meeting on the Saturday following July 10. The
parties agreed to select a date at a later time. Rivers testified that at the June 16
meeting he and Fisher had arranged to get together to set a date for a next meeting.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fisher was supposed to call him on June 26 to determine whether June 27 or 28
would be a feasible date. Fisher did not contact him. Later, at a meeting in
Trinity, the parties set a July date. I estimate that the parties negotiated for
about 5 hours on June 16.
The notes do not show when the July 26 meeting started. Fisher stated at the
outset that he had to catch the afternoon plane and suggested adjourning at 4 p.m.
From the brevity of the notes for this meeting (57 pages) and the fact that no
break is shown for lunch, I infer that the meeting started in the afternoon. Federal
Conciliation Commissioner Majure who was present at this meeting pointed out
near the close of the session that there was little time left that day for further
negotiations. He suggested that at least two consecutive days be set aside by the
parties for future discussion. Collins stated the Union's willingness to meet at the
Commissioner's convenience and to remain in session as long as needed. Fisher
stated he had no objection to two consecutive days, but pointed out that he was
tied up until August 7 and had a hearing scheduled for August 10 which would
run 5 to 7 days. He said August 9 was open but he could not meet on August 8.
The Commissioner then suggested a meeting for August 9 at 10 a.m. I estimate
that 3 hours were spent in negotiations on July 26.
The August 9 meeting started at 1 p.m. and closed at 4 p.m. Commissioner
Majure sought to fix a date for a next meeting and Fisher indicated that he could
not be present on August 21, 22, or 23. He stated further that he would not be
available for the next 6 or 7 days. The parties agreed that the next meeting should
be on August 18 at 9 a.m.
The notes for the August 18 meeting indicate that at the close thereof there was
discussion concerning a date for a next meeting, but the notes do not indicate what
was said. Collins testified that the Union had requested a meeting with Fisher
at his earliest opportunity and that he had replied that the earliest time he could
meet would be on September 11 at 1:30 p.m. Fisher was then told by the union
negotiators that it looked like the negotiations were dragging and that nothing
could be accomplished by meeting about once a month because too much time was
being taken up at the meetings by the parties bringing themselves up-to-date on
what had transpired at previous meetings. The union negotiators objected strenu-
ously to spacing the meetings as far apart as they had been. Fisher replied that
he was going to be very busy with his courtwork and he positively could not meet
with the Union any earlier than September 11. The notes show that the August 18
meeting started at 9 a.m. The adjournment time is not shown. I estimate from
the number of pages of notes that were taken on this day (126 pages) that this
meeting lasted about 6 hours. .
The September 11 meeting began at 9:15 a.m. The notes do not show what
time the meeting ended. There are only 43 pages of notes for this meeting, and
I accordingly estimate that this meeting lasted about 2 hours. The notes show
that there was a discussion concerning a next meeting date and that September 28,
9 a.m. was selected. Collins testified that the Union had asked for a meeting in
a couple of days but that Fisher stated that September 28 was the earliest time
he could meet.
The September 28 meeting started at 9 a.m. No adjournment time is shown in
the notes. At the close of the meeting the Union asked for another date for
negotiations and Fisher replied that he was tied up through October 20, specifically
on October 18, 19, and 20. He was then asked for a date on October 11, 12,
or 13, but stated that he had law suits set for these days. He pointed out also
that Mr. Mackin, an official of the Company who was present with Fisher at the
negotiations, had to spend 10 days on company business in Florida and that this
would be sometime in the next week. Fisher then suggested a meeting on Oc-
tober 26, 27, or 28 and a date was accordingly set for an October 27 meeting at
9 a.m. I estimate that about 3 hours were spent in negotiations on September 28.
The October 27 meeting started at 9:30 a.m. The notes do not indicate when
this meeting closed but it appears that the negotiations were not conducted in the
afternoon. The notes show that at the close of the meeting Collins had remarked
that if there were to be a decision to hold another meeting it would come some-
where after the date for a meeting which the parties had set at Trinity, Texas, with
respect to other negotiations. Fisher in turn remarked that the parties might be
able to meet sooner than the date that they had fixed at Trinity. Fisher in-
dicated that he had informed Commissioner Majure, who apparently was also to
be present at the Trinity meeting, that the meeting there would be on November 17.
Prior to this October 27 meeting the Union had filed a charge with the Board
alleging that the Company had violated Section 8(a)(5) of the Act. Commissioner
Majure who had been present at this meeting had indicated that in view of this
circumstance he was going to step out of the negotiations and had suggested that
CUMMER-GRAHAM COMPANY 1051
the parties wait to see what the Board would say with respect to further negotia-
tions. Collins conceded in his testimony that he had left the October 27 meeting
with the idea that he was going to wait until he heard from the Board before he
agreed to another meeting. I estimate that the parties negotiated for about 3 hours
on October 27.
The February 8, 1957, meeting resulted from the Union's request for a bar-
gaining session contained in a letter to Fisher from Collins dated January 5, 1957.
In this letter Collins had stated the Union's readiness to meet with the Company
and suggested meeting on January 15 or 16. Fisher did not answer Collins' letter
but subsequently arranged the February 8 meeting with Rivers. The notes show
that near the close of this meeting Fisher expressed a desire at about 3:30 p.m.
to terminate the discussions. The notes do not show when the meeting began,
but from the number of pages (119) in the transcript and from the lack of indica-
tion that the negotiations were recessed for lunch, I infer that the meeting started
and ended in the afternoon. At the termination of the meeting the parties dis-
cussed a date for resumption of negotiations. Fisher suggested that the parties
meet again on March 7. The Union objected to putting off the negotiations for
an entire month and pointed to the fact that the bargaining had already been going
on for a year. Rivers informed Fisher that he could meet any time except
February 23 and 28, and Collins was agreeable to any date which Fisher would
select. Fisher claimed that he could not meet sooner than March 7 and the
parties thereupon agreed to meet on that day at 10 a.m. I estimate that the
February 8, 1957, meeting lasted about 5 hours.
The final meeting on March 8, 1957, started in the morning and concluded in
the afternoon. From the number of pages (108) in the transcript of notes I
estimate that the discussions lasted about 5 hours. The notes do not show the
starting or quitting times. The parties were to exchange certain writings and it
was agreed that after this was done Fisher and Rivers would arrange a date for
another meeting.
Resume of the Negotiations
The negotiations began on March 23, 1956, with the presentation by the Union
of a proposed contract containing the conventional clauses generally found in labor
contracts. The procedure thereafter involved a chronological consideration of these
clauses with an exchange of views concerning them. As the negotiations progressed
through the Union's proposed contract, the bargainers on both sides submitted
written revisions of certain clauses which embodied new ideas concerning them
expressed in the discussions. Agreements were reached as to a few clauses in
whole or in part. As to some there were unresolved diametric differences. Other
clauses were left dangling without a definite commitment of position and with
further negotiation obviously required before the final word of agreement or dis-
agreement was spoken. It was not until the 11th meeting on October 27, 1956, in
the 7th month of negotiations that the parties had at least for the first time con-
sidered all the clauses of the Union's proposed contract. At this point the Com-
pany's negotiator, Mr. O. B. Fisher, grasped the initiative and proceeded with a
consideration of a proposed contract which he had drafted. After October 27,
there were two more bargaining sessions, on February 28 and March 7, 1957. All
the clauses in the Company's contract were discussed. Agreements were reached
on most. As to a few there was clear disagreement, and as to others revisions
were to be prepared by both sides for consideration at a later meeting which was
never held.
For them to be more meaningful, the facts concerning the negotiations must be
divided into two parts. The first should cover the negotiations during the period
from March 23 to October 27, 1956, when the parties were considering the Union's
proposals. The second should relate to the remaining negotiations which dealt
exclusively with the Company's proposals.
The March 23 to October 27, 1956, Negotiations
The Union's proposed contract consisted of 15 typewritten pages containing
20 articles, some with several sections. In addition, the Union submitted as a
separate document a proposed group insurance plan. The following recital in-
cludes a summary of the Union's proposed clauses and the Company's responses
to them.
Article I
This article states that the parties to the contract are the Company and the
Union.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company at first insisted over the Union's objection that the employees be
included as parties to the contract along with the Union and the Company. At the
May 12 negotiations the Company agreed to the exclusion of the employees as
parties but with some revision of the clause to show that the contract was made
by the Company with the Union representing employees in the appropriate unit.
At the June 2 negotiations , however, the Company renewed its initial position and
demanded again that the employees be designated as parties to the contract. It
maintained this position without change up to and including October 27.
Article II
In general this article provides merely that the Company recognizes the Union
as the exclusive representative of the employees in the appropriate unit.
With acceptance by the Union of certain changes which had been demanded by
the Company in phraseology and punctuation an agreement had been reached at
the June 16 meeting preserving the substance of the Union 's proposal.
Article III
It was here provided that neither the Company nor the Union will discriminate
against or coerce employees because of their membership or nonmembership in
the Union.
The Union agreed at the June 2 meeting to accept the Company's recommenda-
tion that the provisions of this article be expanded to include strictures against
discrimination or the coercion of employees because of their race, color, or creed.
Article IV
The Union's proposal for a "management clause" was as follows:
The right to plan , direct and control Company operations , the direction of
its working forces, the right to increase or decrease operations , to increase or
change production equipment , to introduce new or improved production meth-
ods or facilities , to relieve employees of duty because of lack of work , employ,
lay off, re-employ , and discharge employees for cause , are rights vested solely
in the Company , subject to other provisions of this Agreement, but this clause
shall not be construed as limiting the full right of management in the conduct
of its business.
No agreement was reached between the parties with respect to the foregoing
proposal despite the interchange of several revisions . The essential point of dif-
ference consisted of the Union 's desire for retention of the "for cause" language
.as a limitation upon the right of the Company to take disciplinary action against
its employees, and the Company's insistence upon an absolute right to take such
:action without even being required to receive complaints or grievances over them
from the employees or the Union.
Article V
This article is entitled "Relations Procedures ." In its first section there is pro-
vision for the conduct of "all normal relations" between the Company and the
accredited Union Committee. There is a provision that the Union shall have the
right to appoint not more than one shop steward "for each," and then a blank
space appears for the inclusion of the appropriate plant subdivision . The second
section provides that the Company shall receive during normal business hours at
its plant office only accredited union officers and union committees to transact
official business. The third section provides that designated union officials and
committeemen shall be permitted to take time off without pay to attend to union
business either inside or outside the Company's property provided that the Com-
pany's operations would not thereby be adversely affected.
At the March 23 meeting the Company agreed to accept all of the first section
as it was written except that it asked for specific delineation of the number of
stewards to be designated . The Company was also satisfied with the second sec-
tion, except that it required a more definite statement of how and under what
circumstances the stewards and committees would be permitted to call upon repre-
sentatives of the Company. As to the third section the Company observed that
it was fair and reasonable but asked for provision that there should be notice
given to the appropriate foreman a certain time before the union official was to be
given time off from his work. At the May 12 meeting the Company raised new
objections with respect to the first section . After considerable discussion concerning
CUMMER-GRAHAM COMPANY 1053
the Company's objections, the parties agreed to a specific language change which
would define what was meant by the term "normal relations" as stated by the
Union. In addition there was a lengthy discussion concerning the number of
stewards that would be designated and in connection therewith the parties reviewed
the Company's operations to determine the number of departments in them. It
was decided that these operations could for purposes of this section be broken down
to 11 departments and that there should be I steward designated for each. The
Company then agreed that with the foregoing changes and inclusions the first
section of article V was "tentatively" acceptable. The Company objected at this
meeting also to the second section of article V and in particular to the phrase
"during normal business hours" because, according to the Company's interpretation,
this would permit the Union's representatives to come in at any time to the detri-
ment of the Company's operations. The Company agreed to rewrite all three sec-
tions of article V and to submit them to the Union.
On June 2 the parties submitted for consideration their written revisions of ar-
ticle V. Although there was discussion with respect to these revisions there was
neither conclusive rejection nor acceptance of either of them. At the June 16
meeting there appears to have been agreement as to the language of the first section.
The Company acknowledged that it had failed to submit its revised versions of the
second and third sections and promised to mail them to the Union. On July 26
the parties indicated that the first section of the article had been revised to their
mutual satisfaction but the Company suggested and the Union agreed to rewrite
this section in complete form. There was no discussion with respect to the other
sections of the article at this time. On August 9 when the parties resumed their
discussion of article V there appeared to be considerable confusion on both sides
as to what had been agreed to by the parties previously. The Company acknowl-
edged that it was to have rewritten the second and third sections and to have
submitted this material but had still failed to do so. The Company again voiced
its objection to the provision in the second section that the Company shall receive
during "normal business hours" union committees and officers for the transaction
of official business. The Company continued to insist as it had before that it
would not accord this right to employees because the Company's operations might
be disrupted if they were to leave their duties to transact union business. The
Company indicated its willingness to receive representatives other than employees
during business hours. Consideration of article V at this point was tabled. The
parties did not thereafter return to a consideration of this article.
Article VI
This article is entitled "Leaves of Absence." Section 1 provides for 30 days'
leave of absence for employees elected as delegates to labor conventions or con-
ferences. Section 2 provides for leaves of absence up to 1 year for no more than
two employees who may be employed by the Union on its own business, such leaves
to be without pay but with accumulation of seniority and continuation of employee
benefits. Section 3 merely promises that the Union will endeavor to prevent loss
of production occasioned by the granting of the foregoing leaves.
On March 23 Fisher remarked that these arrangements could be worked out if
the Company were assured that its operations would not be disrupted by the
absence of critically needed employees. The matter was next discussed on June 2.
At this time Fisher demanded more definite protection against disruption of the
Company's operations resulting from leaves to employees than the Union's mere
promise as stated in section 3. He was critical of the provisions for continuation
of seniority and employee benefits particularly in view of existing employee in-
surance policies. It was pointed out to him that only about 15 percent of the
employees are covered by group insurance and that this was something the em-
ployees themselves had arranged at no expense to the Company and without its
assistance. Fisher then maintained that the granting of leaves should be permissive
and not mandatory. The Union thereupon agreed to revise the whole article.
On June 16 it presented its revision to Fisher. Fisher again stated that the grant-
ing of leaves should be permissive in all cases. The Union accepted this position.
Fisher wanted the Union's revision to be changed to require permission for leaves
to be granted from the plant manager or his representative and the Union agreed
to this also. Fisher objected to the retention in the revision to the grant of leaves
of absence for a period of a year. This question was tabled for further discussion.
The parties next discussed article VI at the August 9 meeting. Fisher had submitted
to the Union a revised draft of this article which consisted of a single paragraph
in which he had stated that the Company will grant leaves of absence to employees
so that they may attend union conventions or conferences provided that the grant-
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of such leaves will not interfere with plant production and that such leaves
shall not be for a period longer than 2 weeks. Fisher was reminded that at the
June 16 meeting he had agreed to all the provisions which were contained in the
Union's proposal as revised on that date and the only matter that had been left
open for discussion was the question of granting of leaves of absence up to a period
of 1 year. Fisher agreed that this was so, but the parties did not then consider
the question which they had indicated was still open . This matter was not discussed
again up to and including the meeting of October 27.
Article VII
This article provided for the deduction from wages by the Company of union
dues and initiation fees upon voluntary authorizations submitted by employees.
Fisher had stated at the Marsh 23 meeting that the Company was unwilling to
agree to such provision but that the door was not closed to further discussion.
When the matter next came up at the June 2 meeting, Fisher stated the Company's
firm opposition to a checkoff and did not thereafter alter this stand.
Article VIII
This is a single paragraph which states that employees who report for work on
their regularly scheduled shifts and for any reason not their own fault do not receive
work shall be paid for 4 hours at their regular rate provided the Company has
failed to post a notice on its bulletin board before the termination of the preceding
day's work or has not otherwise notified the employees not to report for work.
When the matter first was considered on March 23 Fisher expressed the view
that some provision to cover the situation referred to in the article would be rea-
sonable. When the matter was next discussed at the June 2 meeting Fisher ob-
jected to the provision for a 4-hour reporting time payment. He proposed "some"
pay but added that there should be no payment at all if the employees' failure to
receive work is the result of a breakdown in the plant beyond the Company's
control . The Union suggested revision of its proposal to state that in lieu of
payment for 4 hours' work the Company should offer the employees 4 hours of
actual work which if refused by the employees would excuse payment by the
Company of any reporting time. Fisher then stated that the 4 hours should be
reduced to 2 hours, but when asked by the Union whether he would agree to the
proposal if such reduction were made Fisher replied "no" and stated that he
wanted to read the proposal. The Union then agreed to rewrite the article and
to mail it to Fisher who indicated that he would then give his answer to it. The
:subject was considered again at the June 16 meeting. Although it was conceded
by Fisher that the Company had a bulletin board he objected to the provision in
the Union's proposal about the posting of notices to employees not to report for
work claiming doubt that employees would see such notices. The Union argued
that if an employee failed to read the notice not to report and then came to work
the Company would not be liable to pay reporting pay. Fisher did not comment
on this. He argued now that machine breakdowns should excuse the Company
from reporting pay, but the Union in turn maintained that the maintenance of the
Company's machinery was within its control and that it should not be excused
from such payments if the breakdown of machinery was the reason for the failure
to provide employees with work. Fisher then asked that the Company be excused
from reporting time pay if its failure to provide work was due to material short-
ages. The Union objected to this position on the ground that the procurement of
materials was also in the Company's control. Fisher retorted that a reporting-
time clause such as the Union was seeking would result in cutting the workweek of
employees to 30 hours. The discussion ended with a statement by Fisher that some
clauses in the article might be agreed upon. The article was next discussed at the
August 9 meeting. Fisher again stated his objection to the 4-hour provision in the
Union's proposal. He still maintained that the Company should be excused from
giving any reporting pay to employees whether failure to provide work was because
of machine breakdowns or lack of material. In any event he felt that the Com-
pany's penalty should be a grant of 2 hours' work to the employee or a payment
of 1 hour's work without any work actually being performed. He stated that he
would rewrite this article and submit his revision to the Union. The narties did
not up to and including the meeting of October 27 revert to article VIII.
Article IX
This provides that employees unexpectedly called for work outside their regular
schedules shall receive a minimum of 4 hours ' pay on a straight-time basis regard-
CUMMER-GRAHAM COMPANY 1055
less of how long it takes to complete the emergency jobs for which they are called.
The provision was first discussed on its merits at the June 2 meeting. At this
time Fisher objected to the requirement of 4 hours' minimum pay and stated a
desire that the payments should be limited only to the actual time worked however
little that may be. Fisher stated that he would write a revision of this article. At
the August 9 meeting Fisher presented his revision. Essentially this revision pro-
vided that employees called out to perform emergency work shall be paid only
for the length of time which they actually worked and if after being called out
employees do not receive any work there shall be no obligation on the part of
the Company to pay them anything if the failure to give them work results from
"some situation or condition beyond the control of the Company." The Union
objected particularly to this latter proviso arguing that if an employee is called out
and actually reports to work on an emergency job he should receive something.
The Union was also critical of Fisher's revision on the ground that it was confusing.
The Union undertook to rewrite the clause itself. The Union turned over to
Fisher such revision at the August 18 meeting. It now provided that if an em-
ployee were to be called out by the Company to perform an emergency job he
should at the same time be informed as to the length of time for which he will
be offered work. If the employee then informed the company representative call-
ing him that he would accept the work and reported to perform such work he
should be paid for the length of time indicated to him when he was called and
in no event should his payment be less than 2 hours' pay at his regular rate
whether he performs any work or not. Fisher objected to the provision for pay-
ment of 2 hours' pay irrespective of whether the employee works or not, and the
Union agreed that the provision should be revised to exclude such payment and
that the proposal should only require the Company to pay the employee for the
length of time for which he is called to work or the time he actually works which-
ever may be the greater. There was another provision in the Union's revision to
the effect that employees called to work within 4 hours prior to the time that their
regular work schedules begin shall be permitted to work through such regular daily
scheduled period, and that any employee who has been called out shall not be
laid off during his regular work schedule in order to offset any overtime as a result
of working call-out time. Fisher objected to the provision therein 'with respect to
the calling of employees within 4 hours prior to the time their regular schedules
begin. He suggested that it be changed to 2 hours and the Union agreed. Thus
it appears that the parties came to agreement with respect to the terms of the
Union's revision of article IX submitted on August 18.
Article X
This article is entitled "Hours of Work and Working Conditions." Section 1
provides that the normal workweek shall begin on Monday and shall continue for
5 consecutive days; that the normal workweek shall consist of 40 hours with
8 hours as the normal daily work schedule; and that the work schedule shall be
posted on the plant bulletin board. Section 2 provides for time-and-one-half pay
for work in excess of 8 hours in a single day and for time-and-one-half pay for
work in excess of 40 hours in I week. Section 3 provides for overtime pay for
work performed on Sunday. Section 4 calls for the assignment of overtime work
on Saturdays to employees on a seniority basis. Section 5 states that no employee
shall be laid off during his regular working schedule to equalize any overtime he
has earned. Section 6 states that employees will not be required to work more
than 5 consecutive hours without being granted a lunch period. Section 7 states
that two rest periods of 10 minutes each will be granted in each 8-hour day.
Article X was first discussed on March 23. At this time Fisher objected to the
provision for starting the workweek on Monday because the Company's workweek
began on Friday and the Union's requested change would upset the Company's
bookkeeping system. He stated agreement with the provision for a 40-hour normal
workweek but reserved opinion on the provision for overtime pay in excess of
8 hours in a single day indicating that at present the only overtime that was being
granted to employees was for work in excess of 40 hours weekly. On June 2
Fisher renewed his opposition to the provisions of section 1 with respect to starting
the workweek on Monday and to the provision for a normal workday of 8 hours.
He agreed that 40 hours should constitute the normal workweek. Fisher opposed
the provision in section 2 for time and one-half for work in excess of 8 hours in
1 day but came to apparent agreement for overtime payment for work in excess
of 40 hours per week. Fisher opposed the provision in section 3 for overtime pay
for work in excess of 8 hours on Sunday but promised to take the matter up with
the Company. He also opposed section 4 in its entirety but promised to take this
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up also with the Company. He agreed to accept section 5. He objected to the
lunch provision in section 6 insisting that employees should eat whenever they
could. He agreed to the provisions of section 7. On July 26 the parties reviewed
the area of agreement previously reached concerning the various sections of ar-
ticle X. No new agreement was reached on this day except that the Union acceded
to Fisher's request for a revision in section 7 that the rest periods provided for
therein should be fixed by the Company.
On August 18 the Union submitted a revision of article X which was considered
by the parties. It provided agreement with the Company's previously stated posi-
tion that the workweek shall begin on Friday and end on the following Thursday.
It provided that the normal schedule of work shall consist of 5 days excluding
Saturday and Sunday. It stated further that 40 hours shall be deemed to be the
normal workweek and 8 hours. shall be deemed to be the normal daily working
schedule. It provided that the work schedule shall be posted on the plant bulletin
board and concluded with a statement that the article was not intended or should
not be construed as a guarantee of a certain number of hours of work per day or
per week. Fisher objected to the exclusion of Saturday and Sunday from the
normal workweek on the ground that this would limit the Company's right to
extend its working schedule for a period of 6 days. The Union pointed out that
its revision was not intended to restrict such action by the Company. There was
some discussion between the parties as to whether the Union's language would
make it clear that employees would get overtime only if they worked 40 hours in
the course of a week and the Union agreed that this was the intent and the mean-
ing of its provision. Fisher opposed the provision stating that 8 hours shall be
the normal working day schedule. He wanted freedom for the Company to fix
the working day at 10 hours if it so chose. Fisher next informed the Union that
it desired a provision in the contract with respect to Sunday work and pointed out
that it was not the Company's policy to provide work on Sundays except in case
of emergency. He suggested a provision to the effect that if employees are of-
fered work on Sunday they would not be compelled to accept such work and that
they would be privileged to decline it without prejudice. The Union agreed to such
suggestion. As to the Union's renewed request for time and one-half for Sunday
work Fisher stated the Company's continued opposition thereto. Fisher's proposal
with respect to Sunday work which had been accepted by the Union was submitted
in written form. There was no further discussion concerning article X up to and
including the meeting of October 27.
Article XI
This article is entitled "Temporary Transfers." Section 1 provides for the pay-
ment to employees of the higher rate of a job to which he may be temporarily
assigned. Section 2 provides^for an increase of 10 percent in the rate of pay for
employees who are assigned temporarily to take charge of groups of three or more
employees. Section 3 provides for higher rates of pay for employees who are
assigned to perform the duties of more than one employee. Section 4 is a re-
striction against the assignment of foremen to perform the work of rank-and-file
employees except in emergencies or to demonstrate the manner in which work is
to be done. Section 5 provides that in permanently filling vacancies by transfer
within a unit so far as practical no employee will be changed from one job to
another without his consent.
On March 23 when the article was first reviewed, Fisher raised doubts as to
the advisability of the proposal for the payment of higher rates to employees as-
signed temporarily to other duties. He recommended that discussion be deferred
on this question. As to the provision concerning the nonassignability of foremen
to the performance of rank-and-file duties except in cases of emergency, it appeared
from discussion at the negotiations that it is the Company's present practice to
assign foremen to the same duties as regular employees. It was agreed to defer
consideration of this provision until a later time. Meanwhile, the Union promised
to rewrite the article in the light of the information disclosed concerning working
foremen.
The parties next discussed article XI on August 9. At this time Fisher objected
to the provisions calling for the payment to employees of the higher rates of jobs
to which they may be temporarily transferred on the ground that this would in-
volve the Company in burdensome bookkeeping. He also objected to the payment
of a 10-percent increase in their basic rate to employees when they are tem-
porarily placed in charge of a group of employees on the ground that this also
would involve burdensome bookkeeping. He flatly objected to the provision call-
ing for an increase in pay to employees who are assigned to perform the duties
CUMMER-GRAHAM COMPANY 1057
of more than one employee . As to the restriction against assigning foremen to
perform the duties of rank-and-file employees , Fisher restated his former objection
and pointed out once more that the Company 's foremen all perform manual duties.
The Union pointed out that foremen had been excluded from the bargaining unit
and indicated that it was opposed to the performance by foremen of the duties
of regular employees because the latter might thereby be displaced by them. Fisher
indicated that a clause along the lines suggested by the Union would be con-
sidered favorably . The Union then submitted a written revision covering incidental
work performed by supervisors and foremen . The revision stated that the Com-
pany may continue its customary practice of assigning such personnel to the
setting up and maintaining of machines in their respective departments and that
supervisors and foremen should be permitted to perform productive work incidental
to the instruction of employees , and that they may substitute for them on mainte-
nance and production jobs in the temporary absence of employees or to relieve
employees in cases of emergency but that such work should be limited to a maxi-
mum of 2 hours in any 1 day. Fisher objected to the 2-hour limitation stating
that it would be unreasonable . The Union continued to argue that if the Company
were permitted without restriction to assign foremen to the performance of rank-
and-file duties this could be used as a means for cutting down the working time
of these rank -and-filers and to prevent the accumulation of overtime . Fisher
stated his willingness to include a provision to the effect that foremen will not be
given any manual labor work in excess of that amount which they are presently
performing . The parties appeared to be stalemated on the question of the 2-hour
limitation on the assignment of manual work to foremen . Up to and including
the meeting of October 27 there was no further discussion of article XI.
Article XII
This article deals with wages. It did not contain a statement of the wages
proposed by the Union for the duration of the contract , and stated in its first
section that the rates of pay agreed upon would become effective on the date of
the contract . The second section provided that employees upon being hired shall
be paid not less than the minimum rate fixed by law until such time as their names
have been placed upon the seniority list when they would receive the rate called
for by the job. Section 3 stated that when new jobs in departments are created
the Company shall negotiate the wage rates of such new jobs with the Union.
Section 4 provided for a 5-cent shift differential for employees working the 3 to
11 p.m. shift . Section 5 provided for 10 cents per hour wage differential for
employees working 11 p.m. to 7 a.m . shift.
The parties first discussed article XII on March 23 . It was agreed then to
table for later discussion the question of rates of pay. Concerning section 2,
Fisher agreed to the provision providing that pay rates should not be less than
the Federal minimum. He raised a question as to the provision concerning the pay-
ment to employees of the rates called for by their particular jobs when their names
are placed on the seniority list. A discussion arose at this point as to whether the
Company had its jobs classified and it was conceded that it did but only loosely.
Fisher also conceded that the Company pays its employees on the basis of the
rate for their jobs but added that he personally believed in paying employees on
the basis of their personal worth and that he would like to sell this idea to the
Union and to the Company . He was thereupon asked to furnish a list of job
classifications by department before the next meeting so that the Union could
discuss this information with its negotiating committee to be better prepared at
the following meeting. Fisher stated that he could furnish this information as it
appears presently on the Company 's books and he promised to mail this data to
the Union . Concerning the proposal for shift differentials Fisher stated merely
that he did not know whether they would be agreeable or not.
When the parties convened again on April 21, Fisher was reminded that he had
failed to submit the information concerning employee classifications as promised
at the last meeting. Fisher conceded that he did not have such information with
him, but the Company's assistant manager, L . L. Hamilton, was present and claimed
that he personally knew the classification for each employee along with the pay
rates. Fisher then furnished a list including job classifications and rates in ac-
cordance with information provided by Hamilton . The recital of this information
took up most of the April 21 meeting.
At the conclusion of the May 12 negotiations the Union presented to the Com-
pany a list of job classifications by department with a statement of present and
proposed rates. This data was adverted to by the parties at the June 2 negotia-
505395-59-vol. 122 68
1058 DECISIONS OF NATIONAL LABOR : RELATIONS BOARD
tions. Fisher stated the Company's opposition to the increases proposed for certain
job classifications. He added that if the Union thought that present scales were
inequitable the Company would consider making adjustments. The Union in turn
argued that its proposals were in substance a correction of inequities and pointed
to the fact that it was not seeking an increase in the minimum rate. Fisher re-
viewed the Union's proposal and pointed out in effect that the Union was seeking
a general increase. He stated again that the Company would consider adjustments
only with reference to individual jobs, one at a time, and not on the basis of
classifications. He further stated that the Company was unwilling to grant any
increase in wages on any classification at that time because the end of the year was
approaching and the impact of such increases on the Company's operations could
not be foretold. The parties ended their discussion of this subject at this time.
Wages were discussed again on August 9. Fisher suggested that the wages cur-
rently in effect be continued for 1 year, but the Union objected. The parties
resumed their discussion of wages on August 18. Fisher then stated that there
had been a wage adjustment in March 1956 as a result of the operation of the
new Federal minimum wage law and felt that no further increase was now in
order. He requested the Union to agree to a continuation of the existing wages for
1 year. The Union objected and pointed to the fact that other competing com-
panies in the area were paying higher rates and had recently signed contracts with
wage. -increases -and were . giving employees other benefits including paid holidays
and vacations which the Company's employees were not receiving. Fisher admitted
that the Company's employees received no paid holidays but asserted that they do
receive a paid vacation of a week around Christmas time. Fisher renewed his
former objection with respect to the proposals for shift differentials contained in
sections 4 and 5 of article XII. With respect to the Union's demand for pay
increases Fisher stated that while he would not claim that the Company was
presently not making a profit, and that while he further would not claim that it
was impossible for the Company to grant a wage increase, the Company was
nevertheless presently unwilling to grant such increase. He added that the Com-
pany is not pleading as a justification for this position that it was in a state of
poverty, or that it did not have any money. He stated further that the Company
was just unwilling to raise wages at this time. There was no further discussion
with respect to any of the provisions of article XII of wages up to and including
the meeting of October 27.
Article XIII
This is a lengthy article containing eight separate sections all dealing with
seniority. The essence of this entire article is that it grants employees with the
most seniority greater employment security. Included also are the mechanical
operations of a seniority system covering the accrual and loss of seniority, and the
operation of seniority as a factor in the layoff, discharge, and rehiring of employees.
On March 23 there was only brief discussion between the parties concerning this
article. Fisher asked the Union what it meant by seniority and was informed that
the Union desired that the Company should list employees in the order of their
length of tenure and follow the principle that in layoffs, as an example, the em-
ployee with least seniority would be the first laid off. Fisher replied that this was
"okay so far as it goes." The Union indicated its willingness to include as a
factor in layoffs along with seniority such considerations as qualifications and the
ability of employees to perform certain jobs.
The parties next discussed article XIII on September 11. Fisher took issue with
the Union's approach to a seniority principle. He stated that the paramount
factor governing layoffs and recall of employees to work should be their qualifica-
tions and their ability and that where these factors among competing employees
are equal then and not until then should seniority be a factor in determining which
employees should be given preference in layoff or recall. Fisher would add an-
other consideration. If the seniority of the competing employees was equal then
family status should be considered and the employee with a family should be
given preference over the one without a family. He indicated that after the
Union's proposals had been discussed he would submit his own proposal on the
subject. In the ensuing discussion of the Union's proposals Fisher objected to the
request for plantwide as opposed to departmental seniority. He then proceeded to
read certain provisions covering a seniority program from a document which he
had prepared. The Union's reaction was that Fisher's proposals were so com-
plicated that the employees would not be able to understand them, and Collins,
speakine for the Union at this point, pointed out that he himself could not under-
stand Fisher's proposals. The parties continued with a consideration of the Union's
proposed article XIII. Fisher indicated his agreement with most of the provisions
CUMMER-GRAHAM COMPANY 1059
but noted that he had objections to certain of them and in particular to the pro-
vision stating that an employee's seniority should terminate upon his discharge for
cause. Fisher claimed that this would limit the Company's right which it insisted
on retaining to discharge employees for any reason whatever except union ac-
tivities. The Union's counterargument was that if the Company had a right to
discharge employees for any reason at all this would nullify any provision con-
cerning seniority. Fisher voiced objection also to the Union's proposal for the
posting of new jobs or vacancies and the granting of preference in the filling of
these jobs to employees with greater seniority. He maintained that the Company
should be free to pick any man it chose to fill a vacancy or new job depending
.upon his qualifications. There was no further discussion of this subject up to and
including the meeting of October 27.
Article XIV
This proposal concerns paid holidays. The Union here proposed that employees
be granted six paid holidays which it listed in the article. There were other
qualifying terms and rules included concerning the entitlement by employees to
such holiday benefits and in what manner they should be granted.
The substance of this article was never discussed. The parties did reach a
consideration of this article in their, chronological meanderings through. the Union's
contract, but when they finally came to the subject of paid holidays on the eighth
meeting on September 11, Fisher expressed preferment to skip this article and to
proceed to article XV. The parties never reverted to a consideration of article
XIV. It may, however, be fairly assumed that Fisher did indicate his opposition
to any paid holidays, for through the entire negotiations he stated the Company's
unwillingness to sign a contract calling for any increase in the Company's operating
expenses.
Article XV
This article provides for paid vacations to employees ranging from 1 to 3 weeks
depending upon the number of years of employment with the Company. There are
several sections in this article which deal also with the operation of a vacation
program for the employees.
This matter was first discussed at the September 11 meeting. Fisher took the
lead and advocated substituting for discussion his own proposal with respect to
a vacation program. He stated that presently the Company is granting a week's
paid vacation to all employees who have worked substantially a year, and have
worked 90 percent of the time during the year. He pointed out that the vacation
is granted during the Christmas week and that he would be glad to take up with
management whether the time for the granting of the vacation should be changed
to some other period in the year. He stated that he would like to know what the
employees think about such a change and whether they would prefer (1) that the
plant be closed down for a week with everyone taking a vacation at a certain
time in the summer, or (2) that the Company should work out a plan whereby a
certain number of employees would be let off at one time and then a certain
number at another time until all had their vacations, or (3) a plan whereby the
employees could notify their foremen and make arrangements for a week's vaca-
tion at such time as they select. He added a caveat, however, to the effect that
his comments on this subject should not be construed as a proposal on the part
of the Company but that his remarks were merely in the nature of an inquiry
to determine what it was that the employees would like. At this point Fisher
was emphatically informed by the union negotiators that the proposal which they
had submitted reflected the desire of the employees and that it had been formulated
on the basis of discussion by the entire membership of the Union. Fisher's
familiarity with the Union's proposals was challenged by the Union. He stated
that he had read the proposal sometime in the past but not within the last week.
Thereupon the union negotiators read their proposal to Fisher and upon the con-
clusion of such reading Fisher stated that he was opposed to it. He stated again
that he wanted information with respect to the desires of the employees and sug-
gested that the information be obtained either by the Union or by him directly
from the employees. At this point the Union asked him whether he was ques-
tioning the honesty of the Union's negotiators. Fisher denied that this was what
he was doing. The discussion of this subject terminated at this point and the
matter was not raised again up to and including the October 27 meeting.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article XVI
This article is entitled "Adjustments of Disputes." It provides for the customary
three-step grievance procedure with final settlement of a grievance which cannot be
adjusted through these steps by a board of arbitrators to be selected by the Union
and the Company and with an impartial third arbitrator to be selected by the two
designated by the parties. The article provides that the determination to be made
by the board of arbitrators shall be binding upon the parties.
Fisher raised numerous objections to the Union's proposals. He was critical of
the use of the phrase "aggrieved employee" and wanted to substitute therefor
"complaining employee." He argued against any provision which would permit
employees to take up their grievances during working hours, and insisted upon a
provision to make it clear that any employee with a grievance must report his,
complaint either to his foreman or to his steward at such time that it will not
interfere with the work of either the employee or of the persons to whom he
submits the complaint . He objected to the reference to the "shop committee" and.
the provision for negotiation of grievances between such committee and manage-
ment representatives . He claimed that he was unaware of the existence of such
a committee. He stated that the Company would require notice of who were its,
members and their terms, and that there should be agreement as to the number
of members which would constitute the committee . It was then pointed out to-
Fisher that the relations procedure clause in the Union's proposed contract, ar-
ticle V, made provision for the conduct of normal relations between the Union
and the Company through a grievance committee to be designed by the Union
and that it was further provided there that the Union should advise the Company
in writing of the names of the members of this committee . Fisher still objected
on the ground that this did not provide the information that he was seeking with
respect to the committee . He now stated also that the Company would not deal
with any committee consisting of persons who were not employees. At this point
he was questioned about whether there had been any intimation from the Union
that the committee would consist of persons who were not employees and Fisher
admitted that there had been no such intimation, but added on the other hand that
the Union had also not "made any reference of any committee of employees in the
plant." Fisher was reminded that he had already agreed to the provision in sec-
tion V just referred to, but he contended that he had agreed to only part of it.
He stated to the Union that it was now appropriate to reach agreement on the
composition of the committee in question . The union negotiators pointed out that
it could not give him the names of this committee because they themselves did
not know who would be on it. Fisher replied that he did not ask for the names
of the committee members, he merely wanted to know how the committee would
be constituted. Fisher stated that what he had had in mind in connection with the
Union's proposal was a grievance committee and the Union agreed to change the
reference in its proposal from "shop committee " to "grievance committee." At
this point Fisher stated that the Company would not recognize any grievance com-
mittee except one consisting of its employees , and that he favored a grievance
committee composed of union stewards from the plant. The Union objected on the
ground that the employees themselves had a right to decide who should be on their
grievance committee. After some discussion Fisher and the union negotiators
agreed that the grievance committee should be composed of three employees from
the plant to be selected by the Union.
Fisher next reverted to his suggestion that agreement be reached as to the
composition of the grievance committee . He suggested that the Union agree
with him as to where the members of this committee shall come from but the
Union insisted it would not make such agreement with him beyond stating that
they would be employees from the plant. At this point the Union accused
Fisher of trying to dictate who should constitute the Union 's grievance com-
mittee. Fisher denied this . Fisher again asked how many members the Union
wanted on its committee and was informed that they desired a committee of three
employees . He stated agreement with this number but once more expressed a
desire to be informed about where in the plant these members would come from,
but the Union would not go beyond telling him that they would come from the
plant . Fisher once more stated that he thought the committee should be com-
posed of three stewards from separate departments of the plant and he was told
emphatically that the union membership itself would select the committee mem-
bers . Now Fisher suggested that the grievance committee be composed of three
employees from the plant to be elected by the employees . The Union reminded
him that he could not tell the union membership whether they should elect or
choose their committee members in some other way . Fisher kept asking that a
CUMMER-GRAHAM COMPANY 1061
provision be included in the contract to show that they would be elected in view
of the Union's indication that that is the manner in which they would be chosen,
but he was reminded that it was none of his business how these committees were
to be constituted . Fisher stated , however, that the Company would have to have
an agreement indicating how these members were to be designated . Collins
stated that he did not have authority to make such agreement because such
authority resided only in the membership of the Union . Fisher finally declared
that he did not care how the committee members were to be named but never-
tbeless wanted a specific provision in the contract to indicate who was to name
or elect them . It was pointed out to him that the Union had been suggesting
for some time during the course of this meeting that the following language be
incorporated in the contract which would meet Fisher's requirement , "if satis-
factory agreement is not reached in the first step, the grievance shall be reduced
to writing and taken before the Grievance Committee which shall consist of three
members who are employees of the Company at its Beaumont , Texas plant."
Fisher now stated flatly that he objects to this provision because nothing has
.yet been said about how the committee would function . He went on to say that
he wants a statement as to how the employees would be entitled to go to the
.grievance committee with their complaints , and he further wanted something
:stated as to who it was that would reduce the complaints to writing , whether
it was to be the employee or the steward . He further insisted that there be a
provision to the effect that complaints should not be considered or received at such
time as will interfere with the Company 's operations . It was indicated to him by
the union negotiators that all these objections now being raised had already been
considered and that the Union had agreed to include language to meet them. The
union negotiators asked why it was necessary for Fisher to keep repeating these
objections with respect to every section of their proposed grievance procedure. His
reply was that it would not be necessary if these matters were plainly understood
in each section.
As the parties continued to thread their way through the Union 's proposals,
Fisher continued to make numerous objections of the same nature as those de-
tailed in the foregoing recital. Among the objections which he raised was one
.in which he opposed the presence at a meeting with the Company with respect
-to grievances of a representative of the Union who was not an employee of the
Company. Specifically he opposed representation at such meeting by a business
manager or an officer who is employed by the Union but who at the same time
was not an employee of the Company.
When the parties finally reached that portion of article XVI which dealt with
-a board of arbitrators , Fisher objected to such procedure . He stated it is the
Company's desire that any complaints by employees should be settled by the
Company's officials and the Union 's officers and representatives and the employees'
grievance committee . When asked how this was to be done Fisher replied "by
their own good thinking and their own willingness to reason and to do what is
right and to do what is to the best interests of the Company and the best in-
terests of the employees ." He added that the Company is not willing for any
outsiders other than international representatives to have anything to do with the
determination of a complaint . When he was asked whether he meant by this that
the Company would insist that it should have the final say in the settlement of
-a grievance , Fisher replied without qualification that this is precisely what the
Company wants . He suggested that if a stalemate were reached between the
Company and the Union concerning any grievance and if the aggrieved employee
wanted to pursue the matter further he should go to court. At this point Fisher
was asked what position he was going to take concerning the inclusion of a no-
-strike clause in the contract and he replied that the Company would insist upon
inclusion of such a clause together with a penalty against the Union in the event
of a strike . The Union pointed out to Fisher that in these circumstances the
Union would have no redress of any kind against the Company with respect to
settlement of grievances . Fisher reaffirmed the Company 's intention to sign a
contract only if it contained a no-strike clause and added that he was willing
that there should also be a no-lockout clause , but that there should be no pro-
vision in the contract for arbitration of disputes . The Union , on the other hand,
stated that if there were to be a no-strike clause in the contract it must have
arbitration procedures . The Union stated further that it was willing to bargain
away its right to strike but there must be provision in the contract for a fair
method of settling disputes. Fisher stated that he would submit what he regards
as a fair method of settlement of disputes but the Union 's reply was that it could
not be a fair method if one side has the final word. Fisher's reply was "that
depends upon whether its right or wrong."
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fisher next offered suggestions as to what he considered to be a proper
grievance procedure. After he had elaborated upon this subject for a while he
indicated that he would at his first opportunity submit a complete grievance pro-
posal. The Union asked whether he would be able to do that on the day of this
meeting and he indicated that he would make such attempt. That day during a
luncheon of approximately 4 hours' duration Fisher prepared a proposal which
he submitted to the Union for its consideration.
When the parties reconvened following their luncheon, Fisher announced that
he had prepared a grievance procedure which he then outlined to the union
representatives. It provided for the submission of a complaint by an aggrieved
employee to his foreman and the resubmission of the complaint to the same
foreman by the Union's grievance committee if the matter was not satisfactorily
adjusted at the initial step. From there appeal could be taken to the plant
superintendent and from him to the plant manager and finally to the Company's
president or a vice president. No provision was made for arbitration. Fisher's
procedure, on the other hand, stated unequivocally that the determination to be
made by the Company's president or vice president at the last stage was to be
final and binding upon the parties, subject to the requirement that their decisions
should not be arbitrary.
The Union criticized this procedure as a futile and time-wasting method which
gave the Company an unfair advantage over the Union and the employees with
respect to the settlement of grievances because the Company had the last word
in their determination and the Union under the provisions proposed by Fisher
would be unable to exert any pressure to support its views.
There were the following discussions relative to Fisher's proposals. In ex-
planation of the procedures outlined by him, Fisher noted that he had provided at
the various appeals stages for appearance by the complaining employee with a
representative of his choice to speak for him. This representative, according to
Fisher, could have been any outsider including "Governor Shivers or President
Eisenhower or anybody else in the world." It was brought to Fisher's attention
that at an earlier stage of the negotiations he had criticized a union proposal
with respect to the composition of the grievance committee by insisting that it
should exclude from its membership anybody who was not an employee of the
plant because the Company did not want an outsider to discuss its business with
it. Fisher here observed, "I think you completely misunderstood what I said.
I don't even know what you refer to." He shortly, however, remembered what
he had been talking about and now stated that what he had had in mind was
only the composition of the grievance committee. Fisher restated that if an em-
ployee wanted to engage an attorney to represent him and to argue his case
before the Company he would be privileged to do so. However, when the Union
proposed that if a local of the Union had a business agent he should be permitted
to appear on behalf of an employee in grievance procedures, Fisher stated that
he did not want anybody on the grievance committee from outside the plant. In
answer to the Union's argument against the one-sidedness of Fisher's arrangement
and the Union's fears that employees could not be assured of getting a fair deal
under a provision which placed in the hands of the Company's officials the final
word on all grievances, Fisher suggested that if the employees did not have
confidence in anybody from the foreman up to the president of the Company they
should quit. He stated further that if an employee thought that the Company's
officials from the foreman to the president were unfair to them they should
"fire them." He stated that if he were an employee in these circumstances "I
would go lobby with the stockholders. I would get me a list of stockholders
and go see them."
No major agreements were reached with respect to the grievance procedures sub-
mitted either by the Union or by Fisher, and the question was not raised again
until the final meeting between the parties on March 7, 1957.
Article XVII
This article contained a miscellaneous grouping of demands including provi-
sions for (1) registering with the Company the names and last addresses of em-
ployees, (2) providing adequate washrooms for employees and keeping toilets in
sanitary condition, (3) maintaining a bulletin board for posting of union notices
to employees, (4) posting of the Company's rules for employees, (5) installation
of safety equipment and establishment of safety rules, (6) the fixing of a certain
day as payday for employees, (7) furnishing cold drinking water to employees
at certain times, (8) furnishing employees with gloves and raincoats when needed,
CUMMER-GRAHAM COMPANY 1063
(9) reimbursement by the Company to employees of earnings lost by them while
serving as jurors or witnesses, and (10) retention of employment and seniority
rights by employees entering military service.
On September 28 the parties came to an understanding about a bulletin board.
Fisher objected to a contractual commitment for providing and maintaining
adequate and sanitary washroom and toilet facilities although he was willing orally
to promise that the Company would furnish these facilities. The Union had
presented information indicating the current inadequacy of these facilities.
On October 27 Fisher objected to the request for posting rules for employees.
The Union had argued that employees should be informed as to the rules by
which they must abide so that they would know which conduct on their part
could result in the imposition of discipline. Fisher revealed that the Company
had issued a book of rules several years ago and that these were the only rules
which the Company had promulgated. He did not, however, have a copy of the
book. He added that "if the union wants a complete list of definite rules and
wants those definite rules posted with the understanding that any employee who
violates one of those rules will be disciplined, why, I am inclined to think there
will be no objection on the part of the Company. The employees will just be
making a bed for themselves and they will have to sleep in it when they get it
done." The Union told Fisher that it construed his remark as a threat by the
Company to enforce its rules strictly if it acceded to the request by the Union
that these rules be posted.
Fisher also objected to the Union's safety proposals and stated that a provision
merely for establishment of a plant safety committee would be sufficient. The
request for fixing payday as of a certain day was granted. No agreement was
reached on the request for cold drinking water because the Company wanted to
be excused from this obligation in cases of power failure or a breakdown in
the water cooler. The Company refused to grant the request to furnish employees
with gloves and raincoats and insisted that the present practice be continued
whereby these items were purchased by the Company and resold to the employees.
The Company refused to grant the request for reimbursement to employees for loss
of pay due to service as jurors or witnesses. It acceded to the request for job
retention rights of employees entering military service.
Article XVIII
The Union here proposed that neither it nor its members will engage in author-
ized strikes or work stoppages, and that there will be no lockouts by the Company.
The parties discussed this proposal on October 27. The Union was willing to
surrender its right to strike provided it could have impartial arbitration as a
means of settling disputes. This the Company would not grant. No agreement,
therefore, was reached as to article XVIII.
Article XIX
This is a separability clause. On October 27 Fisher stated that the Company
had no objection to this proposal.
Article XX
The Union here proposed that the parties fix the term of the contract with a
provision for automatic yearly renewal unless 60 days' notice before the termina-
tion date is given by either party of its desire to modify or end the contract.
On October 27 Fisher objected to the notice and renewal provision. He
wanted only a 1-year contract with a definite and final termination date. No
agreement was reached.
The Proposal for a Group Insurance Plan
The Union suggested that data from various insurance companies be obtained
through bids and that the parties thereupon negotiate a program. Fisher opposed
any participation by the Union in an insurance program in which the Company
was to pay all the bills. There was no further discussion of this subject.
The Negotiations With Respect to the Company's Proposed Contract
At their first meeting on March 23, 1956, Fisher had announced that after the
Union's contract proposals had been considered he would submit his own counter-
proposals. As appears from the foregoing recital of the negotiations between
March 23 and October 27, 1956, Fisher at various stages had offered counter-
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposals to specific sections of the Union's contract. He did not, however,
during this period submit a complete counterproposed contract. At the August 18
session the Union accused Fisher of engaging in strategy to prevent the Union
from obtaining a contract. Fisher denied that he had such strategy in mind.
He stated that he was trying his best to get an agreement with the Union on
certain clauses and said "and then I want to propose a contract that I sure hope
you will sign." He added, "I want everything that we have agreed to in it, and
things definitely that the Company wants in the contract we haven't discussed."
Collins at this point asked Fisher whether he intended, after the parties had gone
through their current negotiations, to propose a contract himself with additional
items in it which the Company wants. Fisher stated that this was his plan. At
the opening of the September 11 negotiations Fisher announced that during the
morning of that day he had been dictating a complete contract which he had not
yet finished. He offered to submit what he had already prepared to the union
negotiators with the understanding that the remainder of his proposed contract
would be mailed to them in a few days. At the October 27 meeting, after the
parties had finally gone through all of the Union's proposals for the first time,
Fisher was asked by the Federal mediation conciliator who was present at the
meeting whether the Company had any matters which it wished to discuss.
Fisher replied that the Company had during the course of the bargaining sub-
mitted various proposals, some of which had been accepted, and stated that these
proposals along with others that the Company had prepared were incorporated
in a copy of the contract which he had submitted, according to his belief, at the
September 11 negotiations to the Union. The record is not clear as to which
documents that now comprised Fisher's assembled contract were submitted to the
Union on given dates, and it appears that certain portions of the contract had
actually been presented to the Union on September 28. It is likely that the
grievance procedure which had been drafted by Fisher on that date was a portion
of his assembled contract which was given to the Union on September 28. At
the October 27 meeting Fisher submitted certain revisions of his previously pre-
pared grievance procedure for inclusion in his proposed contract. At this time
Fisher hurriedly went through his assembled contract pointing out what he con-
sidered to be the areas of agreement which had been reached in the prior
negotiations and urged the Union to accept his contract as he had written it.
The union negotiators pointed out that they would like some time to study his
proposals and the meeting terminated at this juncture.
The February 8, 1957, Negotiations
Fisher had revised certain portions of his proposed contract to conform to
changes suggested at the October 27 meeting and submitted them to the Union.
Fisher's proposals started with a preamble which consisted of a lengthy com-
pilation of the purposes of the agreement. The Union was critical of the fact
that Fisher had in this section of his contract restated in different terms what
had been previously agreed to in the discussion of the Union's proposed contract.
The Union nevertheless indicated its willingness to accept Fisher's language except
for the last sentence which set forth the management rights of the Company,
because these rights were provided for elsewhere in Fisher's proposal.
Fisher's article 1 was a recognition clause. The only objection the Union had
to it was that again Fisher had reworded the language in the Union's proposal
which had previously been discussed and agreed to by the parties.
Article 2 of the contract stated merely that membership or nonmembership in
the Union was a matter of free choice by each employee. The Union had no
objection to this but again was critical of the fact that Fisher had abandoned
previously accepted language. The Union also requested that provision be in-
cluded in this article for a checkoff of union dues but Fisher stated the Com-
pany's unwillingness to include such provision.
Article 3 provides that there shall be no discrimination against employees by
either party to the contract because of race, color, creed, or membership or
nonmembership in the Union and that there will be no coercion against employees
by the Union to compel their membership in the Union. There does not appear
to have been any disagreement with respect to this article.
Article 4 of the contract was entitled "Management Prerogatives." The Union
questioned the right accorded to management "to make or change such rules
and regulations [affecting the employment of employees] as it may deem necessary
and proper for the conduct of its business." The Union asked for a copy of the
Company's rules but Fisher stated, as he had once before, that it was not avail-
able. The Union was particularly critical of the provision in this article which
CUMMER-GRAHAM COMPANY 1065
gave the Company unlimited power to discharge employees or to discipline them.
The Union argued in favor of a provision limiting the Company's right to take
such action in cases where it had just cause. Fisher insisted that the Company
would not agree to this request because it wanted to be free to discharge or
discipline employees without having to become involved in any discussions with
the Union as to whether it had properly taken these actions. The Union was
also critical of the unlimited right reserved to the Company to assign foremen
to perform the work of rank-and-file employees. The Union offered, if this pro-
vision were eliminated from the management clause and if the Company were
to include the recommendation that actions involving discipline or discharge of
employees should be for just or proper cause, to accept the proposed management
clause as drafted. The Union's position was not acceptable to Fisher and the
parties passed to the next section of the contract without coming to agreement
on the management clause.
Article 5 covered call-in time. The Union stated that it was willing to accept
this article as drafted.
Article 6 provided that there shall be a normal workweek in the plant of
40 hours and that hours of work shall be determined by the Company. There
is no clear indication that this provision was accepted by the Union.
Article 7 provided that overtime shall be paid at the rate of time and one-half
to employees who work in excess of 40 hours in 1 week. The Union accepted
this proposal.
Article 8 related to Sunday work. The only objection that the Union voiced to
this article was its failure to provide for overtime payment for Sunday work in
excess of 8 hours. No agreement was reached with respect to this item and
Fisher promised to take it up again with the Company.
Article 9 provided merely that the Company did not guarantee any particular
number of hours of work per week for its employees. The Union pointed out
that it was a meaningless article but nevertheless agreed to it.
Article 10 provided that there should be two rest periods of 10 minutes each
during each working day. The Union agreed to this article as drafted.
Article 11 provided that the Company could assign foremen to perform the
work ordinarily done by employees within the bargaining unit. The Union ob-
jected thereto and no agreement was reached with respect to this article.
Article 12 dealt with the subject of stewards. With one minor change pro-
posed by the Union and accepted by Fisher there was agreement as to the
language of this article. The negotiations of February 8 ended at this point.
The Negotiations of March 7, 1957
The first matter discussed on this date was article 13 of the Company's pro-
posed contract which dealt with the subject of no strikes or lockouts. The article
provided for the imposition of penalties against the Union and the Company in
the event that there were strikes or lockouts during the term of the contract.
The Union criticized the definition contained in the article that the failure of
any two or more employees to perform their normal work at any time when work
was available for them should constitute a strike. The Union further objected to
the inclusion of the penalty provision in the article in the event of strikes as
defined therein. Discussion of this article was tabled at this point.
Article 14 of the Company's proposed contract dealt with wages. It provided
that the Company should have the right to increase the wages of employees
because of outstanding performance. The Company was to be limited in its
right to decrease wages. As to wage rates the article provided merely for a
continuation of the existing rates now being received by employees. The Union
objected to the right of the Company to make unilateral merit increases in the
rates for employees. With respect to the Union's desire for a wage increase
Fisher stated that the Company "is unwilling at this time to increase wages at
all." Fisher indicated that he would discuss with the Company's officials
whether the Company should retain the right to make unilateral merit increases
but stated his personal objection to giving up such demand at this time. The
Union in turn stated that all that it desired was to be consulted about changes
in pay for employees. While Fisher conceded that wages are always a proper
subject for negotiations, he pointed out that he had included a waiver provision
in article 24 of his proposed contract which would preclude the Union from
bargaining with the Company during the term of the contract with respect to
any bargainable matters. Fisher suggested to the Union's spokesman, Rivers, that
he write something with respect to what he had in mind concerning merit in-
creases and to present it to the Company. Regarding Fisher's demands for con-
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinuation of existing wages, the Union expressed its unwillingness to accept such
proposal. It was pointed out to Fisher that the employees wanted some monetary
gains in their contract. Fisher then stated that there were such gains in his
proposed contract. When asked where they were to be found in the contract,
Fisher remarked, "Well, a week's paid vacation costs money." It was indicated
to Fisher that there was no provision for paid holidays and to this Fisher agreed,
but he observed that a week's vacation could be called "holidays."
Article 15 covered grievances. As now written, Fisher's proposed grievance
procedure provided for a multistep arrangement with a final appeal to the Com-
pany's president or vice president whose determination was to be final and bind-
ing. Just as he had proposed previously, Fisher continued to insist that there be
no arbitration by an impartial board of arbitrators and that the Company's
officials should have the last word with respect to the settlement of grievances
or other disputes. The Union repeated its arguments that without arbitration
and the right to strike in support of its demands, it would be powerless to protect
its rights. The Union insisted that if it were to agree to a no-strike clause it
must have arbitration. Fisher replied that the Company would not relinquish
its demand for a no-strike clause and would at the same time insist upon ac-
ceptance of the grievance procedure which he had submitted which excluded
arbitration. The discussion of the Company's proposed article 15 ended at this
point without settlement of the foregoing questions.
Article 16 dealt with leaves of absence. The Company proposed granting
leaves for periods not longer than 3 weeks to employees desiring to attend
union conventions or conferences but included no provision granting leaves to
employees as the Union had requested to perform service for the Union for
periods up to 1 year. The Union was willing to accept the Company's proposal
as far as it went, but desired to have included in it a provision granting leaves
to employees to work for the Union. It was agreed that the Union would
submit a supplement to the Company's proposed article 16 for consideration at
a later meeting.
Article 17 was entitled "Relations Procedure" and outlined the method by
which the Company's officials and the Union's representatives would meet for
the purpose of considering matters of mutual interest. The Union objected to
language in the Company's proposal which made it necessary for the parties to
meet after working hours. Fisher agreed to provide that the Company's repre-
sentatives may receive the Union's grievance committee during working hours and
to eliminate words which appear to make it mandatory that such committee not
be received during such time.
Article 18 dealt with reporting pay. It provided for payment of 1 hour's pay
if an employee reports for work at his regularly scheduled time without being
notified that work was not available for him. The Union requested that this
payment be increased to 2 hours. Fisher stated that the Union's request would
be considered but would not then agree to it.
Article 19 of the Company's proposal provided for the maintenance of a
bulletin board and included certain rules with respect to the types of notices that
may be posted on it. The Union accepted this proposal.
Article 20 covered seniority. The Company's proposal made employees'
abilities and attitudes the prime consideration in personnel actions involving
promotions, demotions, layoffs, or recalls to work. The Union was still critical
of the failure of the Company to agree to its proposal that length of service
should be the controlling consideration in these actions. No agreement appears
to have been reached on this issue. Other elements in the Company's proposed
seniority provisions were discussed and there was an understanding that Fisher
would revise certain portions of it and resubmit the proposal to the Union.
Article 21 provided for the establishment of a plant safety committee. The
Union had no objection to this provision.
Article 22 provided that the term of the contract should be 1 year. The Union
requested inclusion of a provision which would permit the parties to begin nego-
tiations before the expiration of the contract for a new agreement so that there
would not be a hiatus between contracts. Fisher objected to the inclusion of
such provision on the ground that it would be unnecessary. He stated that a
new agreement could be reached in "two minutes. That is just sign the same one
over again." No agreement was reached on the Union's request.
Article 23 concerned vacations. The Company proposed that a 1-week vaca-
tion be granted to each employee who has worked 300 full days during the
calendar year before the Sunday preceding the first day of the Christmas week
of the year. It provided also that an employee to be entitled to such vacation
must have worked his regular work schedule on the last day that work was
CUMMER-GRAHAM COMPANY 1067
scheduled before the Sunday preceding the first day of the Christmas week. It
was pointed out to Fisher that the Company was granting employees only 40 hours
a week and that work was not normally provided on Saturday or Sunday. In
this circumstance, if the 104 Saturdays and Sundays were to be subtracted from
the number of days during the year, there would remain only 261 days in which
employees could work and it would therefore be impossible for any employee to
qualify for a vacation in accordance with the terms of the Company's proposal.
Fisher then suggested that the figure 300 days be changed to 249 days. In
response to the Union's inquiry, Fisher stated the Company's proposal meant that
if an employee were ill and for that reason unable to work he would not have
an opportunity to earn a vacation. Fisher agreed to revise his proposal so that
if an employee were prevented from working on the last day before the Sunday
preceding the first day of the Christmas week because of illness he should not
be disqualified for vacation rights because of his failure to work on that day.
The Union suggested that the Company grant a 1-week vacation to employees
who work 90 percent of the time that work was available for them. Fisher
stated that he would rewrite the vacation clause and submit it for further con-
sideration to the Union.
Article 24 of the Company's proposed contract was entitled "Waiver." It
provided the following:
The Company and the Union for the life of this Agreement each , voluntarily
and unqualifiedly, waives the right, and each agrees that the other shall not
be obligated to bargain collectively with respect to any subject or matter
referred to or covered in this agreement or with respect to any subject or
matter not specifically referred to or covered by this agreement, even though
such subjects or matters may not have been within the knowledge or con-
templation of either or both of the parties at the time that they negotiated
and signed this agreement.
The Union stated its willingness to accept this waiver provision provided that the
Company was willing to include in the contract a provision such as the Union
had requested with respect to the term of the contract, namely, that there be
opportunity for negotiations between the parties for a new contract before the
end of the term of this contract . No agreement was noted.
The parties having concluded a consideration of all the articles in the Com-
pany's proposed contract , Fisher now suggested that he and Rivers, the union
spokesman at this meeting , go over all the matters as to which there were to be
revisions or additions , clean them up, and then sign the contract . Rivers pointed
out that this could not be done without consulting the membership of the Union.
He further declared that the Union had been very lenient in agreeing to pro-
posals offered by the Company which the Union had opposed and suggested
that if the Company were to make some concession on wages and were to
eliminate from its contract the provision for penalty in the event of strikes,
consideration would be given to signing the Company 's proposed contract. Fisher
replied that the Union had picked out two things that he could not do anything
about . He stated that the Company "is just flat not willing to increase wages at
this time and they don 't want to decrease wages at this time." Rivers suggested
that the Company grant either higher wages or paid holidays and Fisher replied
that the Company was unwilling to add any cost to its operations , but noted on
the other hand that this did not mean that the Company was unable to assume
additional operating costs. Rivers remarked "give us three cents across the board
on this and we'll talk turkey." Fisher refused. At this point Fisher and Rivers
reminded each other of the clauses that they were to rewrite and to mail to one
another. It was agreed that after they had exchanged their material Rivers
should then suggest the date for another meeting. Rivers' last words to Fisher
were, "We will adjourn then until you get my proposals and I get yours and we'll
arrange another meeting." This marked the end of face-to-face negotiations be-
tween the parties.
Relations Between the Parties Subsequent to March 7, 1957
As noted above , it was agreed between Rivers and Fisher on March 7, 1957,
that each was to send the other revisions of certain clauses in the Company's
proposed contract and that another meeting would be arranged upon the receipt
of this material. Rivers testified that on March 8 he sent Fisher the material
he was supposed to prepare. Fisher, however, sent him only a revision of the
vacation clause but did not forward the revision of the seniority clause as prom-
ised. Rivers claimed that he did not seek another meeting with Fisher because
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the March 7 meeting he had promptly sent his material to Fisher, whereas
the latter had sent only part of that which he had promised to prepare and had
not done even this until April 17. Consequently, Rivers testified, "if [Fisher]
didn't think any more than that, I didn't think there was any use going any
further in trying to get a proposal out of [him]."
There was further testimony by Rivers, and also by Fisher, concerning a letter
which the former allegedly sent Fisher which called for a reply by the latter to
the Union's request for a statement of position by the Company on certain
proposals which Rivers had forwarded to Fisher, and a statement of position by
the Company with respect to wages and other money matters as discussed at the
March 7 meeting. According to Rivers this letter was sent a few days before he
received a telegram from Fisher, about May 14, 1957, which acknowledged re-
ceipt of a letter and promised that a proposal would be sent the following
Friday or Saturday. Rivers related that he received only the Company's re-
vision of the vacation clause but nothing else. Fisher denied that this telegram
was in response to such a letter from Rivers, and produced other correspondence
with the Union relating to negotiations then being conducted at Trinity, Texas,
and attempted to show that the telegram was linked to these rather than to the
Beaumont negotiations . I am not convinced by the Company's documentary
evidence, nor by Fisher's testimony that his estimate of the situation is correct..
I am satisfied that Rivers had sent a letter as be had related to which the tele-
gram in question was the Company's response.
Rivers acknowledged that he had received a communication by telephone from
a company representative subsequent to the date of the foregoing telegram in-
quiring whether Rivers was still expecting anything in writing concerning the-
contract, and that he had replied that he would have to check his records and
let the Company know. He did not, however, contact the Company. Thereafter
Rivers received an inquiry by letter from Fisher dated August 8, 1957, again
asking him to advise whether there was any material which he was awaiting from
the Company concerning the contract with a promise by Fisher that if he had over-
looked sending Rivers anything he would upon information from him send it
immediately. By letter dated September 14, 1957, Fisher's law partner, J. D.
McLaughlin, reminded Rivers that he had not advised whether he had all the
material which had been promised, and urged Rivers to notify him whether he was
still expecting anything which Fisher might have overlooked so that this could
immediately be sent to him. Rivers did not respond to either of these letters..
It is relevant to these circumstances, as noted in McLaughlin's letter dated Sep-
tember 14, 1957, that the complaint in this proceeding had already been issued
and that the date for hearing in this case was approaching.
In his testimony, Rivers denied that the negotiations with the Company were
stalemated because of the Union's unyielding insistence on a contract providing
for a wage increase, but he conceded that the Union was seeking certain gains
for the employees which would have added to the Company's expenses. These
gains could have been additional vacations, paid holidays, or overtime pay. Rivers
would not, however, concede that the Union would have refused to sign a contract
without these gains, for, as he put it, "if you get a fair contract, money doesn't
mean anything." Essentially, he said, the Union was striving for job security,
a seniority principle, and recognition in the plant of its committeemen. The
Union, he insisted , never gave up its hope that it could through negotiations
obtain monetary gains for the employees in a contract.
Findings and Conclusions
The controlling legal principles in this cage have been so oft repeated that they
need only be referred to briefly. First should be mentioned the statutory definition
of Section 8(d) of the Act which requires the parties to "meet at reasonable times
and to confer in good faith," but does not compel "either party to agree to a
proposal or require the making of a concession." Next should be noted the
judicial pronouncements which forbid arm's-length bargaining, and demand a sin-
cere and honest effort "with an open mind and purpose to reach an agreement
consistent with the respective rights of the parties." I Finally, it should be
emphasized that a statutory standard such as good faith can have meaning only
in its application to the particular facts of a particular case .2
The particular facts of this case are principally the recorded notes of the 13
bargaining sessions and the related documents which were exchanged by the
1 Majure Transport Company v. N.L.R.B., 198 F. 2d 735 (C.A. 5).
a N.L.R.B. v. American National Insurance Co., 343 U.S. 395.
CUMMER-GRAHAM COMPANY 1069
parties. These are the raw facts from which it must be determined whether the
Company bargained in good or bad faith with the Union . There are not in this
record helpful elements which the Board and the courts have relied upon in other
cases to explain an employer's motive at the bargaining table such as antecedent
events or other conduct contemporaneous with the negotiations . But the absence
of these elements from this case does not reduce the certainty of my conviction
as to the Company's state of mind in its negotiations with the Union.
If sincerity is the hallmark of good-faith bargaining , then the Company has failed
to meet the test . I am firmly convinced that the Company did not enter the
negotiations with the Union with the intention of reaching a reasoned agreement
consistent with the rights of the parties and, consequently , that it did not bargain
with the good faith required by the Act. These are my reasons.
One of the most revealing circumstances of the case is the ponderously slow
progress during the first 11 bargaining sessions , and the contrasting efficiency of
the last 2 meetings . Significantly , the negotiations centered about the Union's
proposed contract in these first 11 weeks, whereas the final 2 meetings involved
discussion of the Company 's proposed contract . The explanation for the painfully
slow pace in the one situation , and for the speedy accomplishment in the other,
is this: While the Union 's proposals were on the bargaining table, the Company's
representative resorted to various forms of delay and procrastination which effec-
tively prevented progress at a reasonable rate and even precluded a sufficient ex-
change of views to permit the parties fully to know each other's positions. The
Union , on the other hand , abstaining from any obstructive artifices such as the
Company had employed while the Union was promoting its proposals , enabled
the consideration of the Company 's proposals to procv--ed with commendable
dispatch.
These are the measures which the Company adopted to obstruct the negotiations
during the first 11 meetings : Requests by the Union for continuous sessions or for
shorter intervals between meetings were continually put off by Fisher 's excuse that
his frequent law suits or other legal affairs occupied his time. The result was that
the 11 meetings were strung out over a period of 7 months, from March 23, 1956,
to October 27, 1956. This alone might be a cause for a finding of 8(a)(5) viola-
tion, for the Board has held that the failure of an employer's representative to
meet with a union upon the latter 's request is not excused by the representative's
explanation that he was busy with other matters. In Derenson's, 104 NLRB 273,
the Board adopted the Trial Examiner's report which stated that this was "not a
valid excuse for denying to the employees the benefits of the Act. It was the duty
of the Company to furnish a negotiator which could conduct negotiations with the
Union with reasonable dispatch." In Gagnon Plating and Manufacturing Company,
97 NLRB 104, 107, the fact that the employer "passively waited for the Union to
make all requests for bargaining meetings," and "limited the bargaining meetings
to unreasonably short periods at considerable intervals of time" was regarded by
the Board as evidence of the employer's bad-faith bargaining.
Early in this report I had made estimates of the amount of time consumed
in the bargaining sessions . I generously calculated that about 381/2 hours were
consumed by the parties in their first 11 meetings. But Mr. Fisher did not permit
even this meager time to be spent constructively in fruitful discussion . Precious
hours were frittered away by other devices. Virtually all 4.hours of the April 21
meeting were needlessly consumed by the Company's oral presentation of job
classification data which Fisher had failed to send the Union as promised by him
at the March 23 meeting. At other meetings Fisher detoured from the negotia-
tions by engaging in patronizing discussions with the employee members of the
negotiating committee , generally about employment conditions with which the
Company's officials who were present at the negotiations must have been con-
versant. These discussions contributed nothing to the progress of the bargaining.
They were an obvious waste of time.
Time was needlessly abused by other more devious means. As hereinabove
related , the Union 's proposed article 1 briefly provided that the contracting parties
are the Company and the Union. On March 23, Fisher insisted that the employees
also be designated as parties . He renewed this demand on May 12 , but was
apparently persuaded to abandon it upon the Union's acceptance of certain phrase-
ology which he proposed to the effect that the contract was between the Company
and the Union representing employees within the appropriate unit as determined
by the Board. On June 2, after the Union had submitted a revision of article 1
in conformance with the changes agreed upon at the May 12 meeting, Fisher
objected and stated , "We still want the employees mentioned in there as being a
party to the contract." When the Union argued that this was contrary to his
agreement , Fisher debated the accuracy of this claim . The reporter at the meet-
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing was then required to review his notes of May 12 and to play back the audio-
graph recording of what had been said on this occasion. Notwithstanding, Fisher
continued to insist upon inclusion of the employees as parties to the contract. He
maintained this position at the June 16, July 26, and August 9 meetings and gave
no indication that he would cease pressing the point until he submitted his own
contract to the Union which contained no reference to the employees as parties.
Mr. Fisher is no labor law tyro. The Board's records list him as counsel in
several unfair labor practice proceedings before it. By his own concession at the
hearings in this case, he has negotiated several labor contracts. I am sure he
was sufficiently experienced in labor law to know that he could not insist to the
point of impasse upon a demand that the employees be parties to the contract.
The union negotiators had pointed out the illegality of such insistence during the
negotiations and made clear that only the Union would be a party to the contract
with the Company. Nevertheless, Fisher persisted with his demand and, so far
as the Union could determine, would not have agreed to a contract unless there
was capitulation to such demand. Then with no intimation of or explanation for
his changed position, Fisher presented his own contract later in the negotiations
and in it only the Company and the Union were listed as parties. This perplexing
procedure, involving Fisher's breach of an agreement, had a degenerating effect
upon the negotiations. It produced friction and antagonism between the bar-
gainers. It vandalized time. It stalled and prolonged the negotiations.
By insisting upon rephrasing almost every section of the Union's proposed con-
tract even where his substituted language produced no substantive variations, Fisher
succeeded in taking up more time for no useful purpose. In some instances his
proposed revisions were so cumbersome and complex that they evoked complaints
from the union negotiators that they were confused. The remarkable thing about
all this is the fact that Fisher supported his demand that the employees be listed
as parties to the contract with the argument that this would compel them to read
and know their obligations. Surely Mr. Fisher knew that the Company's employees
could not possibly read and understand his complex revisions.
The long intervals between these first 11 meetings, resulting from Fisher's
refusal to meet oftener, had their own time-wasting effect. Substantial time was
spent at the meetings rehashing what had been previously discussed and reviewing
areas of agreement. The situation was further aggravated by Fisher's lack of
preparation for the meetings which contributed to additional time wastage. The
incident of the job classification data at the April 21 meeting has been mentioned.
There were other instances of failure to present when promised revisions he had
undertaken to prepare. At the eighth meeting on September 11, when the Union
sought to discuss its vacation proposals, Fisher acknowledged his lack of fam-
iliarity with it and insisted over the Union's objection that it canvass the employees
for their views as to certain alternatives he had conceived.
I am distinctly impressed by the record of the negotiation that Fisher had no
intention of bargaining seriously with the Union. I am convinced that he conferred
with the Union because his refusal to do so would have been a clear violation
of the Act. But this is as far as he would go. In reaching this conclusion, I
have been strongly influenced by the above-related tactics and equally so by the
specific responses to the Union's proposals. A significant factor is the Company's
consistent rejection of virtually each major proposal including any demand for
economic improvements in terms and conditions of employment and job-security
provisions. But apart therefrom, the arguments advanced by Fisher to support
his rejection of the Union's proposals have such a strong tinge of frivolity and
improvisation that I am convinced that the rejection of these proposals was an
arbitrary action falling short of the good-faith standard of the Act.
The September 28, 1956, discussions pertaining to the Union's grievance pro-
posals particularly highlight the sense of these observations. To appreciate fully
their flavor requires a reading of the entire transcript of the notes of the negotia-
tions for that day. These are a few characteristic samples of his responses on
that occasion. When the Union made the conventional proposal for the handling
of employee grievances by a shop committee, Fisher insisted that there be excluded
from its meetings with company officials persons who were not employees.
Specifically, he opposed the presence at such meetings of a. business manager or
other officer of the Union who was not an employee of the Company because they
are outsiders. Subsequently, the Union noted that in his counterproposed Grievance
procedure Fisher had provided for the appearance before company officials of
.attorneys in behalf of aggrieved employees. When the Union observed that at-
torneys, no less than union business agents, are outsiders, Fisher at first attempted
CUMMER-GRAHAM COMPANY 1071
to brush off his inconsistency by disclaiming recognition of the point , but then
explained that in the first instance he had been concerned only with the composi-
tion of the grievance committee . In view of his unconvincing explanation I am
satisfied that Fisher's opposition to the appearance of local union officials at griev-
ance meetings with company officials did not represent his conviction that this was
really objectionable , but that he was merely improvising an argument just for the
sake of opposing . At the same time I regard his unsolicited proposition for the
appearance of attorneys in behalf of employees at grievance meetings as so in-
compatible with the realities of the situation as to amount to a patently insincere
gesture whose effect was only to add another time -consuming item for discussion.
A further example of Fisher 's tongue -in-cheek comments was the remark that he
would permit grieving employees to retain the services of high-caliber counsel in-
cluding Governor Shivers and President Eisenhower . When the Union voiced
doubts that employees could get a fair deal under Fisher 's grievance procedure
which left the final decision completely in the hands of company officials, Fisher
reflected that employees should quit their jobs if they lacked confidence in these
officials , and, furthermore , he advised , if he were an employee who thought the
Company's officials from foreman to president were unfair to him he "would sure
fire them ." He added, "I would go lobby with the stockholders . I would get me
a list of stockholders and go see them." I believe I correctly assume that most
if not all of the Company 's employees herein involved are unskilled laborers com-
pensated at or about the Federal minimum wage . It is inconceivable that Fisher
was seriously presenting the foregoing comments , or that he , in turn, expected
that the union negotiators would regard them as seriously advanced . This was
sheer frivolity.
Of a kind with such manifest insincerity was Fisher's reply to the Union 's request
for a provision to permit discussions for a new contract near the end of the term
of the contract being negotiated , so that there would be continuity of contractual
relations . He stated that such discussions would be unnecessary for the reason
that the Union could get a new contract in 2 minutes simply by re -signing the old
contract . In the light of the protracted negotiations in this case , how may it be
assumed that this argument was sincerely advanced ? Can his response to the
Union's request for paid holidays that a vacation be called "holidays " be taken as
seriously meant? I think not.
Consider also these responses as indications as lack of sincerity . When wages
were discussed for the first time on May 12, 1956, Fisher objected to the Union's
requests for certain wage increases on the ground that the end of the year was
approaching and that the impact of such increases on the Company 's operations
could not be foretold . The record does not permit a determination of whether
he was referring to a fiscal or calendar year . In any event , the negotiations pro-
ceeded into a new year of either variety so that a continuation of the stated ob-
jection would not have been logical . Whether it was for this reason or some
other, the fact is that on August 9, 1956 , and consistently thereafter , the Company
took the firm position that it would grant no request which would add to its
operating costs. This shift in position was not accompanied by any logical reason.
It was a mere rejection of a request which the Union had backed up with economic
arguments appealing to reason . Open-minded negotiations called; at the very least,
for reasons to support the Company 's rejection of the Union 's arguments. This
arbitrary response was accompanied by a goading addendum . It was not that the
Company did not have the money to grant the Union's request or that it was
unable to assume additional operating costs , Fisher said , it was only that the
Company was unwilling to grant any wage increases . I doubt that any negotiator
sincerely intending to reach an agreement with a union would be so deliberately
provocative.
A further demonstration of Fisher 's arbitrary and provocative approach occurred
when the Union was told by Fisher on October 27 , 1956, that if it were to insist
upon the posting of rules governing employee conduct the Company would comply,
but then the rules would be strictly enforced to the detriment of the employees.
This was rightly regarded by the union negotiators as a threat, which I add had
illegal overtones , and Fisher was advised by the Union that his words were
threatening . This is not conduct compatible with a good -faith desire successfully
to negotiate a contract.
Wholly apart from the foregoing considerations , which I believe are sufficient
to demonstrate the Company 's bad-faith bargaining , there are other factors which
supplement and reinforce my conclusion as to the Company's lack of good faith
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and which by themselves constitute reason for a finding that the Company violated
Section 8(a)(5) of the Act.
The Board held in the White's Uvalde Mines case, 117 NLRB 1128, that the
employer therein had not performed its statutory duty to bargain in good faith
because
throughout the entire course of negotiations the Respondent insisted on re-
serving to itself absolute unilateral control over virtually every significant
term and condition of employment which it could change at will without first
discussing the matter with the Union. The control extended to such matters
as wages, promotions , demotions , merit increases , transfers , the determination
as to when the rates of a higher position should be paid to an employee
receiving such a transfer, and the modification and amendment of the shop
rules covering almost every working condition?
2 With respect to most of the matters, the Respondent's changes in terms and
conditions of employment would not even be the subject of a grievance. In fact,
those few matters which would be, the Respondent insisted on reserving the right
unilaterally to determine the merits of the grievance subject to arbitration review
only to determine whether the Respondent acted arbitrarily.
The Board's factual description of the employer' s bargaining position in the
White's case would fit the Company's position in the instant case except that the
Company's position is even more extreme than the employer's in White 's. This
I shall indicate.
Other findings by the Board in White's upon which it based its 8 (a)(5) findings
are applicable to the facts of the instant case. Thus the Board found in White's
that "the only concessions the Respondent offered the Union were `nominal and
illusory.' " The Company's concessions in the instant case are even more insub-
stantial than in White's.
As distinguished from the facts in White's, the Company here has refused to
grant any arbitration whatever. All grievances under its proposal are to be dis-
posed of finally and unappealably by the Company's officials. The harshness of
this position is heightened by the Company's concurrent demand for a no-strike
clause with a money penalty against the Union for any refusal to work by two
or more employees. It makes no difference to the Company, in insisting upon the
penalty provision, whether the strike is unauthorized by the Union or whether the
employees who engage in it are nonmembers of the Union over whom it has no
organizational control. Were the Union to be bound by such arrangement, it would
be constantly vulnerable to financial destruction by elements over which it has
no control. I regard these proposals as so extreme that I believe the Company's
insistence upon them was calculated to disrupt serious negotiations.3
The Company's brief argues that the only reason for the failure of the Union
to reach agreement on a contract was the Company 's unwillingness to grant a
wage increase demanded by the Union. It supports this assertion by referring to
the comment made by the Union's negotiator. Rivers, at the last meeting, "Give
us three cents across the board on this and we'll talk turkey." Thus, the Company
reasons, all that is involved in this case is a bargaining impasse over a concession
which the Company was not statutorily obligated to grant. This is not a correct
appraisal of the record. While Rivers' remark is accurately quoted, it cannot be
reasoned therefrom that the negotiations foundered over an impasse in wages.
There were numerous other unresolved areas at the time Rivers made his remark,
including the Company's proposed management clause, grievance procedure and
no-strike clause, as well as a seniority principle and vacation clause. Rivers'
testimony, which I credit, belies the contention that there was an impasse over
wages, for, as he testified, there were other considerations transcending wages
8In reversing the Board's decision in the White's case, the majority opinion of the
Fifth Circuit Court of Appeals (255 F. 2d 564) noted :
We do not hold that under no possible circumstances can the mere content of the
various proposals and counterproposals of management and union be sufficient evi-
dence of a want of good faith to justify a holding to that effect. We can conceive
of one party to such bargaining procedure suggesting proposals of such a nature or
type or couched in such objectionable language that they would be calculated to
disrupt any serious negotiations.
CUMMER-GRAHAM COMPANY 1073
which, if satisfactorily resolved, could have produced agreement on a contract
which did not provide for a wage increase or other economic gains. The failure
of the parties to come to an agreement was not because of an impasse over terms
caused by the Union's intransigence. The negotiations were not resumed when
the Union finally concluded that the Company was determined not to agree to any
contract which did not include the extreme provisions upon which it had insisted,
and that to obtain this result the Company would continue to resort to the same
frustrating tactics it had employed for more than a year. When, after the last
meeting on February 8, 1957, Fisher failed to submit the revisions promised by
him, the Union's patience with these tactics was exhausted, and it finally became
resigned to the futility of holding further meetings with him.
. I conclude on the basis of the entire record that the Company refused to bargain
in good faith with the Union, the duly certified representative of its employees,
and thereby violated Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Company has engaged in certain unfair labor practices,
it will be recommended that it Cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Company has refused in good faith to bargain col-
lectively with the Union as the exclusive representative of the employees in the
appropriate unit described herein. It will therefore be recommended that the
Company bargain collectively, upon request, with the Union as the exclusive
representative of the employees in the appropriate unit, and, if an understanding
is reached , embody such understanding in a signed agreement.
Upon.the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Cummer-Graham Company is an employer within the meaning of Section 2(2)
of the Act , and is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. International Woodworkers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees at the Company 's Beaumont,
Texas, plant , excluding office clerical employees , all logging operation employees,
guards, watchmen , professional employees, salesmen , and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. On February 16, 1956, and at all times material thereafter, International
Woodworkers of America, AFL-CIO, was, and now is, the representative of a
majority of the Company's employees in the appropriate unit described above for
the purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing on February 16, 1956, and at all times thereafter to bargain
collectively with the Union as the exclusive representative of all its employees in
the above-described appropriate unit, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of -Section 8(a)(5) of the Act.
. 6. By the foregoing unfair labor practices the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act , and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(.1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
505395-59-vol. 122-69