Duro Fittings Co.

National Labor Relations Board - Board Decisions

Aug 8, 1958

121 N.L.R.B. 377 (N.L.R.B. 1958)

DURO FITTINGS COMPANY 377
The Regional Director concluded that the objections were without
merit and recommended that they be overruled The Petitioner's
exceptions do not seriously challenge the factual findings with respect
to the objections We find that, for the reasons stated by the Regional
Director in his report , the objections do not raise substantial and
material issues with respect to the conduct or results of the election
Accordingly, they are hereby overruled As the Petitioner has not
secured a majority of the votes cast in the election , we shall certify
the results thereof
[The Board certified that a majority of the valid ballots was not
,cast for Retail Store Employees Union, Local 344, affiliated with
Retail Clerks International Association , AFL-CIO, and Hotel and
Restaurant Employees and Bartenders International Union, Local
243, AFL-CIO, jointly, and that said Petitioners are not the exclu-
sive representative of the employees at the Employer 's store in Alton,
]Illinois , in the unit heretofore found appropriate ]
Duro Fittings Company and International Union , United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America-UAW (AFL-CIO). Case No 21-CA-2787 August 8,
1958
DECISION AND ORDER
On February 11, 1958, Trial Examiner William E Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (5) of the Act,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto Thereafter, Respondent filed exceptions to the
Intermediate Report and a supporting brief
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Fanning]
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 Inter-
mediate Report, the exceptions and brief, and the entire record in,
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner 'with. the following additions and
modifications I
1As the complaint does not allege i#idependent violation of Section 8 (a) (1) of the Act,
and the issue was not litigated, we do not pass upon or adopt the Trial Exanuner's find-
121 NLRB go 52
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (5) and (1) of the Act. In so doing, we rely on the,
whole course of bargaining by the Respondent, including the pre-
determined position of the Respondent concerning union security and'
merit increases; the Respondent's letter of July 24 to the Union con-
taining its • final proposal ; the speech to employees - on July 25 in,
which Selvin, Respondent's representative, stated, among other things,
that the Respondent had made its final offer and that if the Union did
not accept Duro's proposal in its entirety a stalemate would be reached,
and the Respondent would be free unilaterally to give the employees
what had been offered them through the Union; the Respondent's
letter of August 2 to the Union advising that the Company had sub-
mitted its final offer and unless the Union agreed by August 6 the-
-Company would "immediately thereafter, and on a unilateral basis,,
institute the wage increases and other benefits heretofore offered
through negotiations with the Union" ; and the general conduct of
negotiations by the Respondent reflected in such activity as refusing
to accede to union requests to sit across the bargaining table, instead
of communicating by telephone or mail, and refusing to bargain after
the second negotiating meeting.
We further find, as did the Trial Examiner, that the Respondent's
effectuation of its proposal to institute unilateral action on August 6
constitutes a further refusal to bargain in good faith, in violation of
Section 8, (a) (5) and (1) of the Act.
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, Duro Fittings
Company, Los Angeles, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain with, the Union as the exclusive repre-
sentative of all of its employees in the unit found to be appropriate.
(b) Informing its employees that it will not bargain on the issues
of union security and merit wage increases or any other proposals con-
stituting the subject matter of collective bargaining.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, Join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
ing that Duro's statement to its employees on July 25 that if they engaged in strike
action their jobs would be filled by permanent replacements was violative of Section
8 (a) (1).
DURO FITTINGS COMPANY 379
mutual aid or protection, as guaranteed in Section 7 of the Act, or to
refrain from any or 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 by
Section 8 (a) (3) 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 with the Union as the exclu-
sive representative of the employees in the unit found appropriate,
with respect to rates of pay, wages, including merit wage increases,
hours of work, and other conditions of employment, including union
security, and if an understanding is reached, embody such understand-
ing in a written agreement.'
(b) Post at its plant in Los Angeles, California, copies of the notice
attached hereto marked "Appendix." z Copies of the notice, to be
furnished by the Regional Director for the Twenty-first Region, shall;
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for a period of at least sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Twenty-first Region- in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith. -
2 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, 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 Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
Upon request WE wmL bargain with International Union,
United Automobile , Aircraft and Agricultural Implement Work-
ers*of America-UAW (AFL-CIO) as the exclusive representa-
tive of all our employees in the unit described below, with respect
to rates of pay, wages, including merit wage increases , hours of
employment , or other conditions of employment , including union
security, and if an understanding is reached , embody such under-
standing in a signed agreement. The bargaining unit is :
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees excluding all
office clericals , plant guards, watchmen, professional em-
ployees, and all supervisors as defined in the Act.
WE wU.L NOT interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to join or assist the
above-named Union or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
All our employees are free to become, remain, or refrain from be-
coming members of the above-named Union or any other labor organi-
zation except to the extent this right may be affected by an agreement
in conformity with Section 8 (a) (3) of the Act.
DuRo FITTINGS 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
This proceeding, brought under Section 10 (b) of the National Labor Rela-
tions Act (61 Stat. 136), herein called the Act, against Duro Fittings Company,
herein called Duro, the Company, or the Respondent, upon charges filed by In-
ternational Union, United Automobile, Aircraft and Agricultural Implement Work-
ers of America-UAW (AFL-CIO), herein called the Union, and upon complaint
and answer, was heard, upon due notice, at Los Angeles, California, on January
9 and 10, 1958, before the duly designated Trial Examiner. The complaint alleges,
in substance , a refusal to bargain in violation of Section 8 (a) (1) and (5) of the
Act. Allegations with' respect to jurisdiction, the appropriateness of the bargain-
ing unit , and the Union 's representation of a majority therein , are admitted; the
refusal to bargain is denied.
All parties were represented at the hearing, participated, and were afforded full
opportunity to present and to meet material evidence and to engage in oral argu-
m'erit and to file briefs . Oral argument 'was had at the close of the evidence and
the filing of briefs was waived by all parties.
Upon consideration of the entire record in the case and from my observation
of the witnesses , I make the following:
FINDINGS OF FACT
1. THE , BUSINESS OF THE RESPONDENT
The Respondent ii a California corporation engaged in the manufacture of elec-
trical conduit fittings at its plant in Los Angeles, California., During the 12-month
period immediately preceding the issuance of the complaint in this proceeding, it
DURO FITTINGS COMPANY
shipped products valued at in excess of $50,000 directly to points outside the State
of California.
Jurisdiction is admitted and found.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
M. THE UNFAIR LABOR PRACTICES
A. Chronological summarization of undisputed facts
On April 26, 1957, pursuant to an election, the Board certified the Union as bar-
gaining representative of Duro employees in the following unit, admitted and found
to be appropriate for the purposes of collective bargaining:
All production and maintenance employees in the employ of Duro during
the payroll period ending March 22, 1957; excluding all office clericals, plant
guards, watchmen, professional employees, and, all supervisors as defined by
the Act.
By letter dated May 3, the Union, through its international representative, Lester
J. Learned, requested Duro to furnish the Union with a complete list of Respond-
ent's wages and classifications in order that the Union might "properly prepare for
negotiations."
By letter dated May 6, Grant J. Weise, Duro's president and owner, advised
Learned that Duro did not have a "fixed wage scale, having operated on a `Merit
and Tenure basis."' In this same letter Wiese made the following "counter-
request":
In order to assist you in facilitating negotiations it is imperative that you
furnish us with a list of job classifications applicable to our operations and
with a definition of requirements or qualifications for each category. With
this information at hand, we will furnish you to the best of our ability with
the information requested.
Neither party complied with the other's request.
By letter dated May 16, Learned, after having been advised by Weise that Duro
had retained Mrs. Edwin Selvin, labor consultant, to represent Duro in negotia-
tions with the Union, requested a meeting with Selvin on May 23.
Selvin in turn requested the Union to furnish her with a written contract pro-
posal in order that she might canvass it with Weise before meeting with Learned.
The Union complied with this request.
The first actual meeting of representatives of the parties occurred on June 17.
Learned not being available for that meeting, Patrick Sosso, an international rep-
resentative of the Union, was assigned to, substitute for him. The meeting lasted
about 2 hours in the morning and, at Sosso's suggestion, an afternoon session of
about the same duration was held. The discussion at this meeting was based on
the Union's contract proposals which were silent on the issue of wages.
By letter dated June 29, Selvin transmitted to the Union Duro's counterproposal
which included also a wage proposal. Duro's counterproposal embodied all of the
Union's original proposals which had been agreed upon by the parties at the June
17 meeting.
A second meeting of the parties, attended by Learned and Selvin, occurred on
July 8. At this meeting the Union made a counterproposal to Duro's proposal on
wages. The meeting lasted about 2 hours.
These were the only two times the parties actually met in negotiations on the
contract, though there were numerous telephone conversations between Selvin and
Learned.
By letter dated July 24, Selvin submitted to the Union certain modifications of
Respondent's original proposal on wages and insurance. The letter concluded:
In all other respects the Company's counter-proposal of June 29, 1957, is
resubmitted as its final proposal, and this includes the additions and amend-
ments set forth herein. If you find it acceptable please notify me to that effect
and I will arrange a meeting between the Company and the Union so that it
may be signed by both parties thereto.
By letter dated July 25, Learned advised Selvin:
After reading the proposal in its entirety, we find that it is not acceptable
to the Union. Further, it is not the policy of the UAW to negotiate on Col-
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective Bargaining Agreements through communications. We feel that agree-
ments can only be reached through Collective Bargaining with both parties
sitting across the Bargaining Table. -
It is therefore suggested that you arrange for a meeting at the earliest date
satisfactory to both parties.
On the afternoon of July 25, Weise called a meeting of Duro employees. The
meeting was addressed principally by Selvin, who was introduced as Duro' s negotia-
tor by Weise, and Weise himself contributed some remarks. At this meeting
Selvin gave Duro employees Duro's version of its 'negotiations with the Union,
just what Duro had offered and the advantages the employees would derive there-
from. She stated that she did not as yet,know whether the Union would accept
or reject Duro's proposals. Selvin emphasized that Duro had made its final offer
and that if the Union did not accept Duro's proposal in its entirety a stalemate
would thereupon be reached and Duro would be free unilaterally to give the em-
ployees what had been offered them through the Union. Both Selvin and Weise
referred to the employees' right to strike and to engage in picketing activities, and
informed them that Duro would continue to operate regardless of a strike and the
strikers' jobs would be filled permanently by newly hired employees. A tape
recording was made of what was spoken at the meeting and a transcription from
it, by consent of all parties, was made a part of the record in this proceeding.
On July 29, Weise had a notice posted in the Duro plant notifying Duro em-
ployees that Duro having been informed that the Union planned to ask for strike
authorization at a meeting of employees, Duro would allow employees desiring to
attend the meeting to quit work earlier than their schedules required, in order to
enable them to participate in the meeting. - The notice concluded:
Remember what you were told the other day in the meeting held by the
company with its employees-you are free to join in any concerted activity-and
a picket line is concerted activity-or you are free to refrain from any such
activity. If our employees should authorize strike action, those who wish to
participate may do so and those who wish to remain at work, may do so. In
the event of a strike the company will fill all jobs left by strikers with perma-
nent workers. The plant will continue to operate whether our present em-
ployees do work or whether new employees are hired.
Think carefully-it is probably a more serious question with most of you
than it is with the company. We hope you make the correct decision for your
own best interests.
By letter dated August 2, Selvin acknowledged the Union's letter of July 25,
and made this response:
Noting your request that a further meeting be set up, I called you by tele-
phone on Monday, July 29, 1957, to inform you again that the Company had
submitted its final offer. At that time you agreed that if the Company's offer
was final there was no point in a further meeting. You also told me on that
occasion that the Union had called a meeting of Duro employees for Wednes-
day, July 31, 1957, and that the Union intended, at that meeting, to ask for
strike authorization.
I have had no further word from you as to the outcome of the meeting be-
tween the Union and employees of Duro Fittings Company. Therefore, the
purpose of this letter is to notify you that the Company believes the negotiations
between us have resulted in a stalemate, and proposes, unilaterally, to institute
the benefits it has offered to its employees through the Union.
Unless I hear from you by Tuesday, August 6, 1957, before 12:00 noon, that
the Union is willing to become a party to the Agreement offered, the Company
will, on that date, notify its employees of its intention to immediately there-
after, and on a unilateral basis, institute the wage increases and other benefits,
heretofore offered through the negotiations with the Union.
While Learned denied any mention of a strike action in telephone conversations
with Selvin, Duro employees actually voted for strike action at a meeting on July
31, attended by Learned. , There was however, no strike. It also appears that
Learned submitted Duro's "final" proposal for a contract to a vote of Duro em-
ployees and it was rejected. On or prior to August 6 there were other telephone
conversations between Selvin and Learned but they add nothing to the overall bar-
gaining picture since they contained merely reiterations by Selvin that Duro had
submitted its final proposal and Learned's rejection of that proposal together with
repeated requests for further meetings.
DURO FITTINGS COMPANY 383
A. final request for further negotiations was made by the Union's attorney, Ralph
H. Nutter, on August 6.
On August 6, Weise -had a notice posted in the Duro plant with this text:
This is to advise you that the Union (UAW) has notified our negotiating
representative, Mrs. Selvin, by telephone that they have refused our final
proposal in its entirety.
The company will therefore proceed unilaterally ( on its own) and put into
effect the provisions offered therein; effective as of Thursday, August 8, 1957-
the beginning of the new pay week.
All wage increases offered therein will become effective at that time. An-
nouncements regarding Blue Cross will be posted shortly.
Duro acted according to this notice and there have been no further negotiations
between it and the Union.
B. Concluding findings
It is clear from the entire evidence that Duro's concept of what constitutes collec-
tive bargaining within the meaning of the Act is at variance with the law as construed
and applied by the Board and the courts. Under the decisions, it is not sufficient to
satisfy the statutory obligation to bargain that the parties meet, listen to each
other's proposals for a contract, and make counterproposals. One may comply with
all these formalities with a mind completely closed on bargainable issues and with
no intention or desire to reach an agreement mutually satisfactory to the parties.
The Act does not require that either party yield in its position on bargainable issues
and the Board has no authority to dictate the substantive terms of a contract, but
the Act does require that the parties bargain in good faith on bargainable issues and
good faith cannot exist when the parties enter into negotiations with minds closed
against all possibility of persuasion. The Act does not require the surrender of
convictions or alteration of "philosophies," but when these convictions or philoso-
phies are made operative in bargaining conferences in such manner as to foreclose
a bona fide consideration of bargainable issues, there can be no good-faith bargain-
ing. Neither can there be good-faith bargaining where one party attempts to dictate
the terms of a collective agreement and, in effect, submits its proposal, or counter-
proposal, on a take-it-or-we-break-off-negotiations basis. A stalemate or impasse
justifying unilateral action is not reached when the failure to reach an accord is
caused by one party's inflexible and adamant position on bargainable issues. Were
this not true, a party might state an adamant and inflexible position on bargaining
issues at the opening of negotiations, and if the other party did not agree forthwith, a
stalemate or impasse would be reached before there was any bargaining whatever
and the statutory scheme on collective bargaining would be rendered a nullity. Or,
were it permissible for one party to submit a contract proposal on a take-it-or-leave-it
basis and the other party forthwith chose not to "take it," an impasse would indeed
arise but it would not be an impasse such as would justify unilateral action. It would
be an impasse caused by a refusal to bargain. The only stalemate or impasse
recognized in the decisions as justifying unilateral action is one reached after the
parties have bargained in good faith on bargainable issues to the point where it is
clear that further negotiations would be fruitless. Conceivably this might occur
after a single bargaining conference; again, it might occur only after weeks or
months of patient and painstaking exploration of opposing positions. It is borne
in mind, as the Supreme Court has said: "Enforcement of the obligation to bargain
collectively is crucial to the statutory scheme. And, as has long been recognized,
performance of the duty to bargain requires more than a willingness to enter into
a sterile discussion of union-management differences." N. L. R. B. v. American Na-
tional Insurance Co., 343 U. S. 395.
With this frame of reference we come to the actual negotiations between Duro
and the Union, and upon consideration of the entire evidence I am convinced that
Duro entered into these negotiations with a predetermined and inflexible position
on union security and merit wage increases, and that while an impasse did indeed
arise, that impasse was of its own making and therefore afforded no justification
for its action in unilaterally effectuating its contract proposals.
There is no question that union security is a bargainable issue. The Act, in Section
8 (a) (3), specifically authorizes the union shop, and an earlier provision requiring
an election of employees as a condition precedent to its inclusion in a contract was
deleted by an act of Congress. By this amendment Congress liberalized the Act's
provisions with respect to the union shop. Furthermore, the matter was long before
now raised before the Board and the courts and it has long been settled law that
union security, being a condition of employment, is a bargainable issue. N. L. R. B.
384 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
v. Andrew lergens Co., 175 F. 2d 130, 134 (C. A. 9); N. L. R. B. v. W. T. Grant
Company, 199 F. 2d 711 (C. A. 9); N. L. R. B. V. Bradley Washfountain Co., 192
F. 2d'144, 145 (C. A. 7). That matters of merit and incentive wages are bargainable
issues is equally well settled. N. L: R. B. v. J. H. Allison & Company, 165 F. 2d 766
(C. A. 6), cert. denied 335 U. S. 905; N. L. R. B. v. W. T. Grant Company, 199
F. 2d 711 (C. A. 9); General Controls Co., 88 NLRB 1341; E. W. Scripps Company,
94 NLRB 227; East Texas Steel Castings Company, Inc., 99 NLRB 1339.
Turning now to the evidence on these points, Sosso testified that at the opening
of negotiations on June 17, Selvin stated that she would represent no employer in-
clined "in any way to grant any semblance of union security," and later in the meet-
ing said that she "would not under any circumstances execute a contract with the
union security clause in it." Selvin denied making the statement attributed to her
,by Sosso at the beginning of negotiations, but her own testimony clearly reflects
her state of mind. She testified concerning the first, June 17, bargaining conference:
We talked at great length about union shop. Mr. Sosso made a valiant effort
to convert me to the theory that a union shop was a proper matter for us to
agree to and I think I probably worked just as hard to convince Mr. Sosso it
was not in our opinion anything to which we would agree, but I did tell them
most emphatically before the day was over that we would not ever agree to a
contract nor would we ever sign a contract that . . had any union shop pro-
vision. That the only thing we would agree to would be an open shop such as
we had counter-proposed to their union shop proposal... .
and: -
I expressed more than our views, I stated we would not enter into any agree-
ment that contained a union shop agreement requiring membership in the union
as a condition of employment. I did state that was a conviction that was deeply
imbedded and I think I did say that it was the reason why I engaged in labor
relations work; that I had felt so deeply on the subject of the liberty of an indi-
vidual with respect to union membership and I also recall that I did say to Mr.
Sosso that no employer ever was interested in employing me unless he held a
similar view and that the only employers and the only people from whom I
accepted employment were people who held the view that compulsory member-
ship in a union was not a proper course and refused to grant such conditions.
I made it clear that both the employer and myself held that view as a deep
and abiding conviction and that we would stand by it and I made that [clear)
in the very first meeting.
On cross-examination by the Union's attorney, Selvin testified:
Q. So, actually when you went into these negotiations apparently you and
Mr. Weise saw eye to eye that you couldn't possibly negotiate on the union shop,
isn't that right?-A. That is not correct. We.negotiated and offered a counter-
proposal. We listened to the proposal and considered it and rejected it.
Q. You went into that meeting knowing before you went to the meeting that
you would never give in on union shop, didn't you?-A. I certainly know what
my conviction is.
Q. Just try to answer the question. You went into the first meeting with the
union on June 17th knowing you would never give in on the union shop, didn't
you?-A. I went in knowing I would uphold my conviction.
Q. Would you answer the question? Did you know you wouldn't give in on
this question of union shop?-A. I think I did.
Q. You knew you were opposed to all forms of union security whatever it
was, is that right?-A. That is an open secret, everybody in town that knows
me knows that.
Q. As you stated, you only work for employers who believe the same as you
do on that?-A. Who believe in open shop.
In addressing Duro employees on July 25 Selvin stated, inter alia:
There is one point that an employer is not required to bargain or negotiate
on. Under the law, an employer who has a deep conviction about the liberty
of each of his employees may not be required even to consider the matter of
whether or not he is going to sign any contract requiring membership in the
union as a condition of employment.
Despite these admissions, Duro contends that it bargained on the issue of union
security. By this it no doubt means that its negotiator listened to the Union's
DURO FITTINGS COMPANY 385
arguments and stated the reasons for her position. As to the so-called counter-
proposal presented at the first meeting, it read as follows:
That the company recognizes and will not interfere with the rights of the
employees in the bargaining unit described in Section 1 above to become.mem-
bers of the union, nor will it interfere with their equal right to refrain from
union affiliation. Both the company and the union agree there will be no
discrimination, restraint, coercion or interference with any right guaranteed to
employees by Section 7 of the National Labor Relations Act, as amended,
respecting membership or nonmembership in the union.
We have here a perfect example of discussion on a bargainable issue made
"sterile" by one party's closed mind on the issue being discussed, and a further
example of a negotiator who has permitted her personal convictions to become
operative at the bargaining table in such manner, and to such degree, as to shut
off at the source all possibility of bona fide collective bargaining on a bargainable
issue. This is in no way meant to impugn the sincerity of those convictions or to
question their validity. I doubt not that every year there are employers whose
private convictions are that labor organizations are a political and social evil but
who nevertheless become parties to mutually satisfactory contracts which result from
bona fide collective bargaining. Suffice it to say, that one's private convictions, no
matter how sacrosanct and firmly held, may not be made operative in such manner
as to defy and defeat the law.
Duro's further defense that the Union took an equally adamant position with
respect to inclusion of its union-shop proposal in a contract is without merit. It
may well be that when Selvin made her position clear at the first meeting that
Duro would never sign a contract including union-security provisions, Sosso replied,
in effect, that the Union would not sign a contract which did not contain some
measure of union security. This would be the expected tactical response, but there
was nothing merely tactical in Selvin's approach to the issue. Sosso testified, and
his testimony is credited, that he pointed out to Selvin that there were several
approaches to the matter of union security; that the Union was not "frozen" to its
proposal for a union shop; that there was "room" for negotiations on the topic.
It is obvious that he was willing to and was desirous of exploring the various forms
of union security but such an exploration was rendered sterile by Selvin's pre-
determined and inflexible position. That Sosso's position was not an inflexible
one is indicated by Selvin's testimony that after she had made some concession
with respect to the handling of grievances, Sosso said "it looked like we were
getting some place and he thought it was worthwhile for us to return in the after-
noon." I do not credit Selvin's testimony that Learned in the July conference or at
any time stated that the Union would sign no contract which did not contain a
union-shop clause. Neither do I credit Learned's testimony that the matter was
not discussed. There is, however, Learned's undisputed testimony that the Union
has signed numerous contracts with employers which did not contain a union-shop
provision, and there is the significant fact that in the face of what it must have
known was Selvin's inflexible position on union security, the Union continued to
press for negotiations right up to the point where Duro in effect broke off negotiations
by declaring a stalemate and by unilaterally effectuating its contract proposals.
Cf. N. L. R. B. v. Carpinteria Lemon Association, 240 F. 2d 554 (C. A. 9).
I find that by its refusal to bargain in good faith on the issue of union security
the Respondent violated Section 8 (a) (1) and (5) of the Act.
Although the matter was the subject of less litigation, it appears equally clear
that Duro regarded the granting or withholding of merit wage increases as a
managerial prerogative not subject to collective bargaining. Statements of both
Selvin and Weise to Duro employees on July 25 divulge the Respondent's state of
mind with respect to this issue.
Selvin:
this plant has always operated and will continue- to operate on the basis
of a merit system for maximum wages. We are not going to let anyone say
to us that everybody must receive the same wage.
Now, we have insisted on this point being in the contract: "It is agreed that
the above schedule is for minimum amounts only and the company shall have
the'right to grant merit increases in excess of the schedule as set forth in
Section 1 of this article and such merit increases do not have to be negotiated
with the union."
487926-59-vol. 121-26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That is what we call the merit system and the company has had that merit
system heretofore and intends to keep it and its proposal to the union that it
will accept no contract except as it includes, a merit system for the payment
of wages.
We haven't put the maximum, because they want to say that is the largest
amount we can pay you. They want us to bargain that way with them, but
we have bargained in good faith on the points on the proposal they have raised,
but we have come up with the idea that we are going to continue and we are
going to have it included in the contract, if we sign a contract we will continue
on the merit basis, the basis the company has operated on in the past. [Emphasis
supplied.]
Weise:
I am going to take this opportunity to repeat that I will always, that I will
always insist on giving merit recognition where it is due. I will always reserve
the right to give anybody an increase in pay at any time I feel they deserve it.
[Emphasis supplied.]
In connection with these statements, it should be borne in mind that they were
made on or about the same date that Duro submitted its "final" counterproposal,
a counterproposal to which the Union as yet had been afforded no opportunity to
reply, and a counterproposal which included for the first time certain provisions
with respect to wages. And, inasmuch as this was 'indeed Duro's final counter-
proposal, and Duro refused to meet with the Union subsequent to its submission
unless the Union would accept it in toto, without further discussion, there obviously
was not even a semblance of bargaining on the new items with respect to wages
included in this final counterproposal. Furthermore, I think it clear that there
never had been and could not have been any bona fide bargaining on the issue of
merit wage increases because obviously this was a matter which the Respondent
was adamantly determined to reserve to itself for unilateral action. The American
National Insurance case (citation supra) lends no support to the Respondent's
position. All that case stands for as applied to the situation here is that the matter
of reserving merit increases for unilateral action by management is a bargainable
issue if raised in good faith. But here, clearly, Duro regarded it not as a bargain-
able issue but a managerial prerogative which it could reserve to itself without
bargaining. That Duro's mind was closed to any real bargaining on the issue is
self-evident from the quoted excerpts above.
It is found that by refusing to bargain on the-issue of merit wage increases, Duro
violated Section 8 (a) (1) and (5) of the Act. -
We come now to the Respondent's contention that a stalemate or impasse justify-
ing unilateral action by Duro had been reached on or before August 6, the date
on which Duro posted its notice informing employees that a stalemate had been
reached and Duro would unilaterally effectuate its contract proposals.
As previously noted, there were only two occasions when Duro's representative
met with representatives of the Union in negotiations on a contract. Selvin refers
to the first meeting on June 17 as two meetings because it was convened in the
morning and after a noon recess was continued in the afternoon. Whether it be
called 1 or 2 meetings makes no difference, but to avoid confusion it will be referred
to herein as one or the first meeting. Duro having made no counterproposal at
that time, the entire discussion was based on the proposal for a contract submitted
by the Union, at Selvin's request, prior to the meeting. There appears to have
been agreement on some items and sharp disagreement on the Union's proposals
for a union shop and arbitration of grievances. Wages were not even touched
on at this meeting. Prior to the second meeting on July 8, Duro had submitted
its counterproposal and also a wage proposal. Its counterproposal included all
items in the Union's proposal which had been agreed upon at the June 17 meeting.
This second meeting lasted about 2 hours and it may be assumed that the matter
of wages was discussed inasmuch as the Union submitted •certain counterproposals
to Duro's proposal on wages. The evidence does not disclose whether the area
of agreement was widened at this meeting or remained as it was at the close of
the June 17 meeting, but it is clear that disagreement on union security and arbi-
tration continued and it may reasonably be inferred that no agreement was reached
on wages inasmuch as there were counterproposals made on this topic at this
meeting, and it is hardly to be supposed that in a meeting of 2 hours' duration in
DURO FITTINGS' COMPANY 387
which such controversial topics as union security and arbitration were canvassed,
there 'was more than a tentative exploration of the matter of wages.'
Finally, on July 24 Selvin transmitted to the Union through the mail certain
modifications of the Respondent's original proposal on wages and insurance and
informed the Union by letter that except for these "additions and amendments"
Duro's original counterproposal remained unchanged, and constituted Duro's final
proposal.. I have no doubt Selvin considered that with this final submission she
'had complied with the law's formal requirements with respect to collective bargain-
ing. She had engaged with union representatives in one meeting during which the
Union's proposals were canvassed and discussed; she had submitted a counter-
proposal and this in turn she had discussed during a second meeting with union
representatives; and considering that at this second meeting the Union had submitted
a counterproposal to her proposals on wages, she had submitted a final proposal
which included some modifications'and additions on the topics of wages and insur-
ance. She had in fact gone through certain motions specifically required, and if
the Union did not see fit to accept her final proposal she saw no need for further
negotiations.
I do not question her belief that further negotiations were useless any more than
I accept her concept of what constitutes bona fide bargaining. Her error here is
one of failing to distinguish between a counterproposal and an ultimatum, and
what she submitted to the Union on July 24 was not a counterproposal but an
ultimatum. When the Union refused to bow to that ultimatum, as it had every
right to, an impasse was indeed reached but it was an impasse by virtue of the
fact that she had submitted not a counterproposal but an ultimatum. The persistence
with which the Union sought to continue negotiations right up to and including the
day that Duro posted its notice to employees that it would unilaterally effectuate
wage and other benefits, is clear evidence that the Union did not consider that a
true impasse had been reached but to the contrary was eager for further exploration
of differences existing between the parties with respect to a contract. 2
Would such a further exploration have been futile, a waste of time? That is
possible but, except for Duro's inflexible position, would have become evident only
after a further exploration had been made. The modifications and amendments
contained in Duro's final proposal, standing alone, constituted subject matter for
further negotiations , and as the Union's representative appropriately stated in his
letter of July 25, such negotiations carried on in good faith and with a willingness
and desire to reach an agreement, are not normally amenable to letter writing or
telephone conversations. What Duro wanted, and required, was a "yes" or "no"
answer to its proposals and that indeed could be conveyed either by mail or tele-
phone, but that is not what is meant by "negotiations" and is a far cry from bona
fide collective bargaining.
Duro's further defense, that because of the Union's adamant stand on union
security and arbitration further negotiations` would have been futile, has pre-
viously' been alluded to. But when it is borne in mind that it was the Union
which was pressing to the last for further negotiations, and that it was Duro
which was taking the inflexible position that it would not meet for 'further negotia-
tions but would only meet if the Union accepted its proposals in toto, this defense
obviously has no merit. As thatters stood when Duro broke off negotiations with
the Union, it was Duro and not the Union which had taken an inflexible stand
on bargainable issues.
It is found that by refusing, on and after August 2, 1957 (the date of Selvin's
letter refusing further negotiations), to negotiate with the Union for a contract,
Duro refused to bargain in good faith in violation of Section 8 (a) (1) and (5)
of the Act.
It is further found that by its notice to employees posted on August 6, announcing
unilateral action on its contract proposals, and by its subsequent unilateral effectua-
1 I 'do not know to what extent, if any, the Union was hampered in presenting wage
proposals by Duro's failure to furnish it with the wage information it had requested.
It,does not appear that the Union, at any time after negotiations had actually started,
repeated'its request for this data and there is insufficient development of the matter in_
the evidence to form a basis for a finding that the Respondent's failure to furnish wage
data amounted to a refusal and was, of itself, a refusal to bargain.
2 Selvin testified to the effect that Learned rejected every item of Duro's contract pro-
posal, but obviously he did not reject it to the extent that it incorporated, as it did, certain
proposals previously agreed upon by the parties. Actually, Duro's final proposal was sub-
mitted as an entity and on a take-it-or-else basis and the Union was allowed but one alterna-
tive : it chose not to take it.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of those proposals, Duro refused to bargain in good faith, in violation of Section
8 (a) (1) and (5) of the Act.
It is further found that Duro's statement to its employees on July 25 that if
they engaged in strike action their jobs would be filled by permanent replace-
ments, was a threat of punitive action if they engaged in protected concerted
activities and, accordingly, was violative of Section 8 (a) (1) of, the Act. A-
strike caused by an employer's refusal to bargain collectively is not only pro-
tected activity, but contrary to Duro's advice to its employees. Employees en-
gaging in such strike activity, absent some misconduct such as violence on the
picket line, may not be permanently replaced by newly hired employees but are
entitled to reinstatement upon application. While this matter was not specifically
pleaded, statements by Duro to its employees upon which these findings are predi-
cated stand admitted and without qualification.
It is further found that Duro's statements to its employees that union security
was not a bargaining issue and that Duro would reserve to itself, without re-
course to the Union, sole authority with respect to the granting or. withholding of
merit wage increases, and its further statement that it would not negotiate further
with the Union unless the Union accepted its contract proposals, had the reason-
able and inevitable effect of undermining the status of the Union as bargaining
representative, and therefore constituted a refusal to bargain, in violation of Sec-
tion 8 (a) (5) of the Act, and interference, restraint, and coercion within the
meaning of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent, described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices
by refusing on and after June 17, 1957,3 to bargain with the Union, the statutory
bargaining representative of its employees in an appropriate unit, it will be recom-
mended that on request the Respondent bargain with the Union on all proposals
which raise bargainable issues, and, if an understanding is reached, embody such
understanding in a signed agreement.
Respondent's refusal to bargain in fulfillment of an obligation which "is crucial
to the statutory scheme," its erroneous and misleading statements to its employees,
and its threat of punitive action if they engaged in concerted activities protected
by the Act, combine to convince me that this Respondent has not yet accepted
the basic mandates of the Act, from which it is inferred that there is a likelihood
of the commission of other unfair labor practices unless the remedy be made
coextensive with the threat. It therefore will be recommended that the Respond-
ent cease and desist from-in any manner infringing upon the rights of employees
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees who were in the employ of
Duro during the payroll period ending March 22, 1957, excluding all office
clericals, plant guards, watchmen , professional employees , and all 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.
3. The Union was on April 26, 1957, and at all times since has been the ex-
clusive representative of all employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of Section 9 (a) of the
Act.
4. By refusing on and after June 17, 1957, to bargain collectively with the
Union as exclusive representative in the aforesaid appropriate unit, Duro has
3 The date on which Selvin first divulged her Inflexible position on union security.
HOUSTON MARITIME ASSOCIATION, INC. 389
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
5. By the said refusal to bargain , and by informing its employees , in effect, that
it would not bargain on the issues of union security and merit wage increases
and that it would not enter into further negotiations with the Union on a contract
unless the Union accepted its contract proposals , and by threatening its employees
with loss of employment if, they engaged in a strike , Duro interfered with,, re-
strained , and coerced its employees in the exercise of rights guaranteed them in
Section 7 of the Act, and thereby engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
6. 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.]
Houston Maritime Association , Inc., and Master Stevedore Asso-
ciation of Texas and International Longshoremen 's Associa-
tion , Independent , Local No. 1273, Party to the Contract and
A. M. Clay, J. A. Garza, W. J. Nemeth
International Longshoremen 's Association , Independent, Local
No. 1273 and A. 'M. Clay, J. A. Garza, J. D. Williamson, W. J.
Nemeth. Cases Nos. 39-CA-480, 39-CA-484, 39-CA-525, 39-CB-
103, 39-CB-104, 39-CB-105, and 39-CB-123. August 8, 1958
' DECISION AND ORDER
On September 26, 1956, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other alleged
unfair labor practices and recommended that certain allegations of
the complaint be dismissed. Thereafter, the General Counsel filed
exceptions to the Intermediate Report and a brief and argument in
support of the exceptions. No other exceptions or briefs were timely
filed.
Pursuant to Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers her to a three-member panel
[Chairman Leedom and Members Bean,and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions, the brief, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as they are consistent with this
decision.
121 NLRB No. 57.