Fant Milling Co.

National Labor Relations Board - Board Decisions

Apr 19, 1957

117 N.L.R.B. 1277 (N.L.R.B. 1957)

FANT MILLING COMPANY 1277
Fant Milling Company and American Federation of Grain MiI1-
ers, AFL-CIO. Case No. 16-CA-752. April 19,1957
DECISION AND ORDER
On March 15, 1956, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (5) and (1) of the Act, and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the In-
termediate Report. The respondent also filed a brief in support of
its exceptions, and the Union filed a brief in support of the Interme-
diate Report.'
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in,
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as consistent herewith.
We agree with the Trial Examiner's conclusion, based on all the-
relevant facts as shown by the record in this case, that the Respondent
refused to bargain collectively with the Union within the meaning of
the Act. On June 26, 1953, the Union had been certified as the exclu-
sive bargaining representative of an appropriate production and main-
tenance unit of the Respondent's employees at the Sherman plant. By
November 21, 1953, the date 6 months prior to the filing and service of
the charge, the Respondent had held 4 separate negotiating meetings
with the Union without reaching an agreement. Thereafter, up until
October 15, 1954, the Respondent held about 14 more such meetings,.
still without reaching an agreement. Finally, at a meeting on Novem-
ber 19, 1954, it advised the Union that it was withdrawing recognition
and refusing to meet any further. The issue before us is whether the-
Respondent, in this long course of dealing with the Union, fulfilled its.
duty to negotiate in good faith so as to justify its refusal in November
1954 to prolong the discussion of collective-bargaining issues, or
whether, on the other hand, it evaded its legal duty and was thus with-
out warrant in November 1954 and thereafter for refusing to meet with
the Union.
The course of the negotiations is disclosed in large measure by volu-
minous transcripts of most of the meetings, made for the Respondent
1 The Respondent also requested oral argument . In our opinion , the record and the ex-
ceptions and briefs fully present the issues and the positions of the parties Accordingly,,
the request for oral argument is hereby denied
117 NLRB No. 168.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by a court reporter and put in evidence by the Respondent. We have
no difficulty in determining the Respondent's bad faith throughout
these protracted negotiations, particularly in view of the Respondent's
unilateral effectuation- of a general wage increase early in October
1954, while the negotiations were still in progress but without con-
sultation with or even notice to the Union. The record shows that the
Union had been pressing for a general wage increase for some time, and
at the meeting of September 17, 1954, had repeated its demand for a
general wage increase and stated that it would be happy to discuss the
matter further. The Respondent's negotiators replied that they would
agree only to the current wages, with minor adjustments to eliminate
individual inequities as between classifications.' Partly in view of the
Union's statement at the meeting that it no longer insisted on its own
proposal, which had called for a 15-cent increase, the Respondent's
negotiators closed the September 17 meeting with a statement that they
would try to work out a compromise on pay and would schedule an-
other meeting for October 10.
The circumstances in connection with the intervening wage increase
appear sufficiently from the admissions of Vice-President and Assist-
ant General Manager Martin at the hearing. According to Martin,
President and General Manager Fant, without consultation of any
kind with the Union, in the latter part of September 1954 decided to
grant a general wage increase of 7 cents per hour, and told the super-
visors of his decision. On or about October 4 or 5, Chief Union Rep-
resentative Wellborn sought Martin out and told him, "I hear that
you have given a 7-cent raise to the employees." Martin replied,
"That is correct." Wellborn then asked, "Aren't you aware that you
should have contacted or told me or discussed it with me about giving
the employees a raise? " Martin's reply was that 7 or 8 years before,
when he was with another employer (Universal Mills), he had given
raises without contacting Wellborn, and Wellborn had made no
objection .3
At the next negotiating meeting, postponed from October 10 to Oc-
tober 15, Wellborn again protested the Respondent's unilateral action
in granting the wage increase without notice to the Union. The reply
of the Respondent's negotiators this time was that the Union had said
at the previous negotiating meeting, on September 17, that it was not
yet ready to discuss wages except on the basis of the 15-cent increase
originally proposed by the Union. Wellborn did not agree with this
distortion of the facts, but said that he felt the Respondent had given
the wage increase to the employees so that they would not "show up"
2 To this latter suggestion the Union 's answer was that it would like to defer a discus-
sion of individual inequities pending negotiations on other , more important issues
3In view of Martin's admissions , we are unable to credit his later denial on redirect
examination that he or anyone else in management knew of the wage increase before
October 6 , when it was officially announced to the employees.
FANT MILLING COMPANY 1279
at any further negotiating meetings, and that if the Respondent really
intended to negotiate in good faith it would have discussed the wage
increase with the Union or made some definite offer to the Union in-
stead of granting the increase unilaterally. The Respondent's negoti-
ators did not deny Wellborn's assertion that no general wage increase
of any size had been offered to the Union by the Respondent. There-
after, despite the disagreement that had arisen concerning the uni-
lateral wage increase, the Respondent agreed to hold a further negoti-
ating meeting.
On November 19, 1954, the date which had been set for the next
scheduled meeting, the Respondent posted a notice to the employees,
announcing the resumption of direct dealing with the employees and
the withdrawal of recognition from the Union, on the ground that it
was impossible to reach an agreement with the Union, and on the fur-
ther ground that "management has lately learned through statements
made by various employees" that the Union had lost its majority.
At the meeting with the Union on that day, the Respondent for the
first time advised the Union that it was withdrawing recognition and
refusing to meet any more.
The Respondent argues that the unilateral wage increase does not
show that it was negotiating with the Union in bad faith, because the
increase was granted only after an alleged impasse had been reached
which warranted such unilateral action. The record, as set forth
above, does not support this contention. It shows the opposite. In-
deed, the Respondent in effect admitted that no deadlock had yet been
reached, for, after having given the unilateral wage increase, it par-
ticipated in one bargaining meeting and scheduled still another with
the Union in an apparent attempt to continue to reach an agreement.
Moreover, even assuming that an impasse had been reached, the Re-
spondent's change of position as to a general wage increase, after hav-
ing refused it to the Union at the September 17 meeting, would effec-
tively have broken any impasse that might theretofore have existed.4
The Respondent also defends its unilateral action in granting the
wage increase on the ground that the Union allegedly (1) had refused
to bargain on wages, and (2) had consented to the increase. As set
forth above, however, the record shows that when, at the previous meet-
ing, the Union requested bargaining on a general wage increase, the Re-
spondent refused.5 Thereafter, as the record shows, the Respondent
put into effect the general increase without consulting with or even
advising the Union, thus depriving the Union of any opportunity to
agree to the increase; and the Union immediately and repeatedly
, See , for example , N. L. R. B. v. Undted States Cold Storage Corp ., 203 F. 2d 924
(C A 5) See also Crompton-Highland Mills, Inc., 70 NLRB 206, set aside 167 F. 2d 662
4C. A 5), reversed 337 U S. 217.
s The Union 's request to defer discussion for more important issues was clearly limited
to the Respondent 's offer to make minor adjustments to eliminate individual wage inequities.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protested the unilateral manner in which the Respondent had decided
on and granted it.
Finally, the Respondent argues that the wage increase does not
show bad faith because it then had a bona fide doubt of the Union's
majority. This doubt was based on certain reports made to various
management officials by line supervisors, beginning about a week be-
fore Fant's decision to give the increase, and continuing for almost 2
months thereafter. These reports were to the effect that the super-
visors had observed a marked decrease in the number of employees
regularly wearing union buttons in the plant, and had been informed
by various employees that the majority had "forgotten the union ac-
tivity." However, the Respondent continued to recognize the Union's
majority and to schedule negotiating meetings until it posted the notice
to its employees on November 19, 1954, announcing that "management
has lately learned through statements made by various employees"
[emphasis added] that a majority no longer desired representation by
the Union. And the basis it now urges for having ignored the Union's
representative status for purposes of the wage increase (although not
for purposes of bargaining in other respects) is no more substantial
than the hearsay information given its supervisors by some of its em-
ployees. It would strain credulity to believe that these statements,
amounting apparently to no more than mere opinion voiced by an un-
disclosed number of employees, could constitute a basis sufficient to
persuade the Respondent to bypass the Union in September, when
it decided to give the wage increase. Indeed, the record indicates that
the Respondent itself did not rely on the reports, for at the time it
announced the increase above discussed it did not advance any alleged
loss of majority as its reason for failure to consult with the Union.
And 11/2 months afterwards, in its November 19 notice, it admitted that
it had learned only "lately" of the alleged loss of majority. In view
of these facts, and upon the record as a whole, we agree with the Trial
Examiner's refusal to credit Martin's testimony that the above-men-
tioned reports had caused the Respondent to doubt the Union's ma-
jority by the time the general wage increase was unilaterally decided
upon and given.
On a procedural level, the Respondent argues that evidence of any
occurrence not made the subject of a timely charge, such as the uni-
lateral wage increase of 1954, which the Respondent granted after the
filing of the charge in this case, is inadmissible under the provisions of
Section 10 (b). However, the charge previously filed in this case
alleged in part that the Respondent refused to bargain collectively
with the Union, and thereby and by other acts and conduct interfered
with, restrained, and coerced its employees in the exercise oftheir
statutory rights. Moreover, this charge was still pending, by reason
of the Union's timely request to the General Counsel to review the
FANT MILLING COMPANY 1281
Regional Director's then refusal, since reconsidered, to issue a com-
plaint on behalf of the General Counsel. In these circumstances we
hold that the unilateral wage increase, although occurring subsequent
to the original charge and not the subject of any amended charge, is
admissible as tending to prove the allegations of the charge, as elabo-
rated in the complaint after an investigation occasioned by the charge,
to wit, that the Respondent on or about November 21, 1953, and at
all times thereafter, and particularly by putting into effect a general
wage increase for all employees in the unit on or about October 7,
1954, without notice to the Union, was refusing to bargain collectively
within the meaning of the Act. We find support for our view in
N. L. R. B. v. Anchor Rome Mills, 228 F. 2d 775, where the United
States Court of Appeals for the Fifth Circuit only last year approved
the holding of N. L. R. B. v. Kohler Co., 220 F. 2d 3 (C. A. 7), that
the 6-month limitation of Section 10 (b)
does not prohibit the inclusion [in the complaint] of similar or
related acts happening after the charge. Where, as here, the
charge refers to part of a continuing pattern of conduct, there
is no reason why the Board cannot allege specific acts which are
part of that pattern although they occurred after the charge was
filed.
We find that the earlier cases cited by the Respondent and our dis-
senting colleague, when carefully examined, are distinguishable : These
cases concede that the complaint is not to be limited to the specific
allegations in the charge so as to exclude other matters which are
similar or related to the violation charged, and they support our view
rather than the contrary one. Nor can we agree with the dissenting
view that the later Anchor Rome Mills case is not apposite.'
We are constrained to disagree with our dissenting colleague's
further view that the Board is without jurisdiction to entertain the
complaint because of the alleged prejudicial action of the Regional
Director in issuing it on behalf of the General Counsel. On August 12,
1955, before the complaint was issued, the General Counsel in effect
ruled on the Charging Party's appeal from the Regional Director's
6 See N. L. R B . v. Local 1423 , United Brotherhood of Carpenters , 238 F 2d 832 (C. A
5), enforcing findings of discrimination as to 2 employees although they had not filed
a charge within 6 months , where the discrimination was "closely enough related " to dis-
crimination against another employee whose charge was timely filed ; N. L. R. B. v. Dallas
General Drivers , 228 F. 2d 702 (C. A. 5), where the court stated that the Newton case
"simply held that the Board could not include in its complaint an allegedly discriminatory
discharge of an employee which occurred more than six months prior to the service of
the charge" ; N. L. R. B. v. Morris Harris, d/b/a Union Mfg . Co., 200 F. 2d 656 (C. A. 5),
where the court held that the Board had jurisdiction over violations occurring after the
filing of the last amended charge , and that the complaint properly included such matters.
See also Douds V. International Longshoremen 's Association, Ind, 241 F 2d 278 (C. A. 2),
where the court approved the Board' s request for an injunction based entirely on a refusal
to bargain occurring subsequent to the charges
423784-57-vol 117-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
original refusal to issue a complaint : he ratified and approved the
Regional Director's decision to withdraw the refusal and to continue
the investigation on the basis of additional supporting evidence. The
complaint subsequently issued by the General Counsel, acting through
the agency of his Regional Director, was therefore duly issued.
Moreover, our dissenting colleague appears to agree with us that,
aside from the procedural barrier he detects, the unilateral wage in-
crease establishes the violation alleged against the Respondent. We
cannot agree with his further view that, despite the willingness of the
Regional Director and the General Counsel to issue a complaint
without more, the Union should have insisted on filing an amended
charge in order to avoid fatally prejudicing the Respondent.
We therefore find, contrary to the Respondent's contentions, that
the unilateral wage increase of October 1954 was not given during a
bargaining impasse, nor was it granted pursuant to a good-faith
doubt of the Union's majority status. We find, rather, that the giving
of this general increase while negotiations were still continuing, and
in complete disregard of the Union's representative status, provides
the final insight into the Respondent's conduct of negotiations with
the Union. It clearly shows that after November 21, 1953, the cutoff
date determined by the General Counsel pursuant to the provisions of
Section 10 (b) of the Act, the Respondent was merely going through
the motions of collective bargaining without a genuine intention of
trying to negotiate an agreement with the Union as required by the
provisions of the Act.' Upon the entire record, we find that the
Respondent has failed and refused to bargain in good faith with the
Union and that it has thereby violated Section 8 (a) (5) and (1) of
the Act. We further find that it will effectuate the policies of the
Act to order the Respondent to bargain with the Union on request 8
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, Fant Milling
Company, Sherman, Texas, and its officers, agents, successors, and
assigns shall :
7 See N L R B v Reed & Prince Iffg Co., 205 F. 2d 131, 134-135 (C. A. 1), cert.
denied 346 U S 887, where, as here, the employer "engaged in a lengthy series of bar-
gaining conferences, which got nowhere " The Court, approving the finding of a refusal
to bargain, held that the Board need not be blinded by mere talk and surface motions, and
that the finding involved an area of mixed fact and law requiring the Board' s specialized
knowledge and expertness, as referred to in Universal Camera Corp v N. L. R. B., 340
U S 474, 488 Accord - N. L R B v Tower Hosiery Mills, Inc, 180 F 2d 701, 705
(C. A 4) , American National Insurance Co v N. L. R B., 187 F 2d 307 (C. A. 5), af-
firmed N L R. B. v American National Insurance Company, 343 U. S 395
8 See the American National Insurance case cited above, 187 F. 2d at 309, 343 U. S. at
401 See also N. L R B. v. Truitt Mfg Co, 351 U. S. 149, reversing the contrary action
of the Court of Appeals for the Fourth Circuit in denying enforcement of a similar affirm-
ative order.
FANT MILLING COMPANY 1283
1. Cease and desist from :
(a) Refusing to bargain collectively with American Federation
of Grain Millers, AFL-CIO, as the exclusive representative of all its
production and maintenance employees at the Sherman, Texas, plant,
excluding chemists, chemist helpers, office clerical employees, buyers,
salesmen, watchmen, guards, and supervisors as defined in the Act.
(b) Interfering in any other manner with the efforts of the afore-
said Union to bargain collectively on behalf of the employees in the
appropriate unit.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with American Federation
of Grain Millers, AFL-CIO, as the exclusive representative of all the
employees in the above-described unit with respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment, and embody any agreement reached in a signed contract.
(b) Post at its Sherman, Texas, plant, copies of the notice attached
hereto marked "Appendix." 9 Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, shall be duly signed
by the Respondent and posted by it immediately upon receipt thereof
and maintained for sixty (60) consecutive days thereafter in con-
spicuous 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 Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER RODGERS, dissenting :
On May 20, 1954, the Union filed a charge with the Board, alleging
that on or about November 20, 1953, the Respondent, in violation of
the Act, had refused to bargain with the Union. On July 13,1954, the
Regional Director formally notified the parties that he would not issue
a complaint because "there was insufficient evidence of violations to
warrant further proceedings." The Union thereupon appealed the
Regional Director's ruling to the Board's General Counsel.10 In Oc-
9In 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."
'° The Union 's request for review was filed , more than 10 days after the Regional Director
served his notice of refusal to issue a complaint , and the Respondent , relying on Section
102 19 of the Board 's Rules and Regulations , contends that such request was not timely
filed The only record evidence touching on the point is the statement on the face of the
Union's request for review that the request was filed pursuant to "an extension . . .
granted July 22, 1954 " As the latter statement is not controverted in the record, and
as the General Counsel considered portions of the request for review on the merits (Gen-
eral Counsel's letter of August 12, 1955, disposing of the Union's appeal), I treat the
Union's appeal as timely filed.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tober 1954 the Respondent put into effect a general wage increase for its
employees. Thereafter, on January 24,1955, the Regional Director an-
nounced that "upon reconsideration of the facts and circumstances,"
he was withdrawing his previous refusal to issue a complaint and would
proceed with the investigation of the charge against the.Respondent.
On August 12, 1955, the General Counsel, noting the Regional Di-
rector's action of January 24, wrote the parties that "All further in-
quiries with respect to the 8 (a) (5) allegation should be addressed to
the Regional Director."
On August 17,1955, the Regional Director issued the complaint here-
in. This complaint alleged in general terms that the Respondent
had refused to bargain with the Union on or about November 21, 1953.
It is significant that no amended charges were ever filed in this case,
and that the only act specified with particularity in the complaint was
the October 1954 wage increase.
My colleagues have concluded that the Respondent did not bargain
with the Union in good faith on and after November 21, 1953. A
reading of their opinion shows that the crucial element in their evalu-
ation of the course of the Respondent's conduct is the wage increase
which the Respondent gave its employees in October 1954. Thus their
opinion is almost entirely devoted to a consideration of that wage in-
crease, and they have candidly admitted that the Respondent's grant-
ing of the wage increase has given them a "final insight" into the Re-
spondent's conduct of negotiations with the Union. My colleagues'
decision appears therefore to affirm the Regional Director's decision not
to issue a complaint on the basis of his evaluation of the Respondent's
conduct preceding the October 1954 wage increase. And I, too, agree
that but for the wage increase there would be no case whatever against
the Respondent. But as this case turns on the wage increase, the criti-
cal issue is whether the wage increase-which occurred after the Union
filed its charge, and which was not made the subject of a second, or
amended, charge-may lawfully be made the basis of a finding that
the Respondent violated the Act. In my opinion, it may not.
In the first place, I observe that the Regional Director's action in this
case was contrary to the Board's established procedure, as set forth
in the Board's Rules and Regulations and Statements of Procedure,
which have been published in the Federal Register. By Section 102.19
of the Board's Rules and Regulations, the Board has formally estab-
lished a procedure which affords an opportunity to an aggrieved com-
plainant to have the General Counsel review the Regional Director's
action." Section 101.6 of the Board's Statements of Procedure pro-
13 Section 102 19 states :
Review by the general counsel of refusal to issue .-If, after the charge has been
filed, the regional director declines to issue a complaint , he shall so advise the parties
in writing, accompanied by a simple statement of the procedural or other grounds
The person making the charge may obtain a review of such action by filing a request
FANT MILLING COMPANY 1285
vides that after an appeal is taken the file in the matter appealed is to be
forwarded to Washington, D. C., for review by the General Counsel.
Upon such review, the General Counsel may either sustain the Regional
Director or may direct him to take further action.12 The effect of these
sections, in my opinion, is to divest a Regional Director of jurisdiction
over the subject matter of an appeal pending the General Counsel's
.action.
Under this view, after the Union herein had appealed the Regional
Director's refusal to issue a complaint, the Regional Director was
divested of jurisdiction over the subject matter of the Union's May 20,
1954, charges, and lacked the power to reconsider and withdraw his
earlier action.13 In the circumstances of this case, this irregularity
and departure from orderly administrative procedure has more than
technical significance. For, had not the Regional Director reversed
his earlier refusal to issue a complaint, the General Counsel would
have reviewed the Regional Director's decision on the basis of the
facts as they existed in July 1954, and without any reference to the
October 1955 wage increase. It is idle, of course, to speculate what
the result of such a review would have been. From the Respondent's
view, however, the real point is that the Regional Director's action
precluded the General Counsel from passing upon the Respondent's
conduct as the rules and Statements of Procedure required. It is
-equally idle to say that had the General Counsel, upon review, sus-
tained the Regional Director, the Union could then have filed a new
charge based upon the October 1954 wage increase. For, again, from
the Respondent's view, the real point is that the wage increase was
never made the subject of a charge against it.
therefor with the general counsel in Washington, D. C., and filing a copy of the re-
quest with the regional director, within 10 days from the service of the notice of
such refusal by the regional director. The request shall contain a complete state-
ment setting forth the facts and reasons upon which the request is based.
" Section 101.6 of the Board's Statements of Procedure provides
Dismissal of charges and appeals to general counsel.-If the complainant refuses
to withdraw the charge as recommended, the regional director dismisses the charge.
The regional director thereupon informs the parties of his action, together with a sim-
ple statement of the grounds therefor, and the complainant of his right of appeal
to the general counsel in Washington, D C, within 10 days If the complainant
appeals to the general counsel, the entire file in the case is sent to Washington,
D C , where the case is fully reviewed by the general counsel with the assistance of
his staff Following such review, the general counsel may sustain the regional di-
rector's dismissal, stating the grounds of his affirmance, or may direct the regional
director to take further action
33 In reversing his earlier action, the Regional Director reconsidered "facts and circum-
stances" concerning which there then does not appear to have been a "file" for him to
review, said "file" presumably having been previously sent to the General Counsel in
Washington, D. C., pursuant to Section 101 0, supra. Moreover, the Regional Director
presumably was not acting at the direction of the General Counsel when he reversed him-
self, for at that time the office of the General Counsel was vacant. (The term of Gen-
eral Counsel Bott terminated on December 20, 1954. His successor, General Counsel
Kammholz, began his term on March 29, 1955
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I am convinced that the irregular action taken in this
case before the filing of the complaint was prejudicial to the Respond-
ent's case.14
Notwithstanding the foregoing, however, I rest my dissent in this
case on a second ground-the dictate of Section 10 (b) of the Act.is
The Courts of Appeals for the Seventh and Fifth Circuits have held
respectively, in the Indiana Metal and Newton cases, that Section 10
(b) precludes the finding of an unfair labor practice predicated on
acts that occurred subsequent to the filing and serving of a first charge
and more than 6 months prior to the filing and serving of an amended
charge, even though the acts in question were similar to those alleged
in the charges.16 In language which was quoted with approval in the
Newton case, the court said explicitly in the Indiana Metal case :
The Board is barred under Sec. 10 (b) of the Act from enlarging
or adding to the language of the charge so as to include unfair
labor practices committed more than 6 months prior to the filing
and serving of the charge.
In the instant case, the Respondent's October 1954 wage increase
occurred about 51/2 months after the charge was filed, and almost 10
months before the complaint issued. The October wage increase-
which according to the majority is the nub of the case against the
Respondent-was never made the subject of a second or amended
charge. Accordingly, even if the complaint herein be regarded as a
substitute for such a second or amended charge, the Board is, by virtue
of Section 10 (b) and under the holdings of the Indiana Metal and
Newton cases, precluded from predicating a violation of the Act on
the basis of that October wage increase." This conclusion is impelled
14 Section 3 (a) of the Administrative Procedure Act, 5 U S C A. 1001, et seq, re-
quires an administrative agency to publish in the Federal Register its rules and "state-
ments of the general course ind method by which its functions are channeled and de-
termined It also states specifically • "No person shall in any manner be required.11
to resort to organization or procedure not so published " The procedure followed in this
case before the filing of the complaint clearly, I believe , violated the latter prohibition of
Section 3 (a).
Administrative rules and regulations have the force of law and are binding on the
Government Their nonobservance by the administrative authority , which is bound by
such rules and regulations , invalidates an entire proceeding . Scbrary v . United States, 282
1. 795 , 797 (C A 3 ) ; United States v. Denton, 288 F 959 ( S D, N. Y ) , Ohm v.
Perkins, 79 F. 2d 533 ( C A. 2) ; Bilokumsky v. Tod, 263 U S 149 , 155. Moreover, a de-
parture from the rules and regulations may not be justified simply by saying the de-
parture is unimportant McKay v Wahlenmeier, 226 F 2d 35 , 43 (C. A., D C.) See
also Accardu v. Shaughnessy, 347 U S 260 ; Bridges v Wixon, 326 U S. 135.
15 Section 10 (b) provides in pertinent part: ". . Provided, That no complaint shall
issue based upon any unfair labor practice occurring more than six months prior to the
filing of the charge with the Board. . . .
11 Indiana Metal Products Corp v N. L R B , 202 F 2d 613 , 619 (C A 7 ) ; N L R. B.
V. D W. Newton, 214 F. 2d 472 , 475 (C. A 5).
14 My position in this case follows the Board 's ruling in the recent Knickerbocker Man-
v/actursng Company case, 109 NLRB 1195 , 1197, where the Board specifically rejected
the view that the filing of a charge tolls the running of the 10 ( b) limitation so as to per-
mit adjudication of any and all subsequent labor practices Accord : Mid -States Steel
and Wire Company, 112 NLRB 800
N L R. B v . Anchor Rome Mills, 228 F . 2d 775 ( C. A 5), here relied on by my col-
leagues, is distinguishable from the instant case. In the Anchor Rome Mills case, the
FANT MILLING COMPANY 1287
by the language of Section 10 (b) for, as the court said in the Newton
case, "Without the limitation which we have here placed on section 10
(b) of the Act, its provisions would be rendered meaningless to a
great extent."
In view of the foregoing, I would not find here that the Respondent
has violated the Act.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
conduct in issue was "a series of discriminatory acts" named in the charge to have oc-
curred "on , before , and after" dates specified in the'charge , as well as other acts and
conduct that occurred within the 6 months preceding the date of the charge . The Anchor
Rome Hills case does not appear therefore to be apposite Moreover, the Kohler case,
220 P. 2d 3, as well as the other cases cited by my colleagues , are also distinguishable :
each of them involved , as any careful leading of them will show , a factual situation
clearly different from that which exists in this case.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with American Fed-
eration of Grain Millers, AFL-CIO, as the exclusive represent-
ative of all our employees in the appropriate unit described below.
WE WILL NOT in any other manner interfere with the efforts of
the aforesaid Union to bargain collectively on behalf of the
employees in the unit described below.
WE WILL upon request bargain collectively with the aforesaid
Union as the exclusive representative of all our employees in the
unit described below with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, and
embody any agreement reached in a signed contract.
The bargaining unit is :
All production and maintenance employees at our Sherman,,
Texas, plant, excluding chemists, chemist helpers, office cleri-
cal employees, buyers, salesmen, watchmen, guards, and
supervisors as defined in the Act.
FANT MILLING 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.
1288 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On May 20, 1954, the American Federation of Grain Millers, affiliated with the
American Federation of Labor i (hereinafter sometimes called the Union), filed
a charge against the Respondent, Fant Milling Company (hereinafter sometimes
called the Company), asserting that the Company has engaged in and is now engaging
in certain unfair labor practices in violation of Section 8 (a) (1), (3), and (5) of
the National Labor Relations Act, as amended, 61 Stat. 136-162,2 hereinafter called
the Act. On the basis of the charge so filed, the General Counsel of the National
Labor Relations Board instituted this proceeding under Section 10 (b) of the Act by
causing a complaint to be signed and issued by the Regional Director for the
Sixteenth Region on August 17, 1955, against the Company, alleging contraventions
of Section 8 (a) (1) and (5) of the Act.
In substance, the complaint herein alleges that on or about November 21, 1953,
the Union, after being duly certified by the Board as the representative of employees
in an appropriate bargaining unit,3 requested the Company to bargain collectively in
respect to rates of pay, wages, hours of employment, or other conditions of employ-
ment; that on or after that day the Company refused and continues to refuse to so
bargain; and that the Company, without notice to the Union as the representative
of the employees in the collective-bargaining unit, on or about October 7, 1954, put
into effect a general increase in wages for all employees in the bargaining unit.4
The Company filed timely answer, denying the contraventions of the Act as set
forth in the complaint, and setting up certain affirmative defenses: mainly, that on
different occasions, and particularly on September 17, 1954, the Union refused to
bargain or engage in any discussion concerning wages; that theretofore the Union
had consistently refused to seriously discuss or to negotiate an agreement on wages;
and that "throughout the period of its bargaining with the complaining union and
for many months prior to October 7, 1954, Respondent stated in substance that its
desire and position with reference to wages was that the employees at its plant should
receive wages equal to or above wages received by persons similarly employed in
the area of Sherman, Texas, and that on October 6th, 1954, it had been informed
and upon information believed that a general increase of 70 per hour was necessary
in order to sustain such position and on such date announced such general wage in-
crease to be effective as of October 4th, 1954"; and that the Union approved the
wage increase.
At the hearing session held on November 30, 1955, the Trial Examiner allowed
the Respondent to amend its answer by adding the following affirmative defense:
Paragraph 5. Respondent alleges that on or about November 19, 1954, and
prior thereto, a genuine impasse was reached by the union and the employer in
contract bargaining negotiations, neither being willing to give up its position
on each and all of these bargaining subjects:
(a) A no-strike and no-lockout clause providing for penalty for violation
in favor of the non-offending party against the offending party.
(b) Providing for arbitration in the contract.
(c) A provision in the contract that continuous service should control
promotions, demotions, lay-offs and recall of employees instead of ability
to do the work on the job involved.
That by reason of such impasse and deadlock, further bargaining negotiations
between the parties were futile and no obligation existed on the part of the em-
ployer to continue bargaining negotiations with the Union.
'After this case was begun, the American Federation of Labor and the Congress of
Industrial Organizations merged into one ; the Trial Examiner on his own motion now
amends the name of the Charging Party and the style of the case, by changing "AFL" to
"AFL-CIO "
7 The Regional Director, exercising the discretion conferred upon him, decided after in-
vestigation that that part of the charge alleging contravention of Section 8 (a) (5) of
the Act was not well founded. Upon petition by the Union for review of the decision
of the Regional Director, the General Counsel reversed the decision of the Regional
Director in this respect There has been no issue presented under the complaint in this
case under Section 8 (a) (3), with respect to any unlawful discharge in violation thereof.
8 Case No 16-RC-1289 (not reported in printed volumes of Decisions and Orders).
4 The bargaining unit is described as "all production and maintenance employees of
Respondent employed at its Sherman plant, exclusive of chemists and chemists' helpers,
office clerical employees, buyers, salesmen, watchmen, guards and supervisory employees."
FANT MILLING COMPANY , 1283
This matter came on to be heard before the duly designated Trial Examiner at
Sherman , Texas, on September 20, 1955, and thereafter on September 27, 1955,
was adjourned sine die. The hearing was reopened pursuant to appropriate order
on November 15, 1955, and was closed on December 1, 1955. At the hearing, all
parties were represented by counsel, were afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence relevant to the issues,
to argue orally upon the record, and to file briefs and proposed findings of fact and
conclusions of law.
At the opening of the hearing, counsel for the Respondent objected to the proceed-
ing on the grounds that the Board had not, insofar as the Respondent was concerned,
designated the Trial Examiner as the Trial Examiner to conduct the hearing; that is,
that the Respondent had had no notice whatsoever of any designation of any Trial
Examiner for the hearing. In support of the objection, it was contended on behalf of
the Respondent "that the parties are entitled to be apprised of the designation of the
Trial Examiner to conduct the hearing under the provisions of the Act and therefore
we make the objection at this time." The Trial Examiner had been duly designated
by the Chief Trial Examiner to hear the case and therefore overruled the objection .5
Prior to the opening of the hearing, the Company, by counsel, filed a motion to
dismiss the complaint and a motion to strike. Each of these motions, made in
writing, was denied by Trial Examiner Alba Martin, with leave to renew at opening of
the hearing. These written motions were renewed at the hearing, and counsel for
the Respondent also moved for a bill of particulars in respect to the allegations of
the complaint that the Union requested the Respondent to bargain collectively and
that on or about November 21, 1953, and at all times thereafter, the Respondent did
refuse and continues to refuse to bargain collectively with the Union. The Trial
Examiner deferred ruling on any one of these motions at the time made.
The motion to strike, subject to the motion to dismiss, is based principally upon the
assertion that the charge filed by the Union before the issuance of the complaint
herein does not support the allegations of the paragraphs of the complaint objected
to because it is "not pursuant to any charge served upon Respondent within the
meaning and contemplation of . . . [Section 10 (b)] of the Act." In support of
its motion to dismiss, the Respondent takes the position that the charge alleges
that "on or about November 20, 1953," the Respondent refused to bargain collectively
with the Union, whereas the complaint alleges that the acts complained of, that is,
the Respondent's refusal to bargain with the Union after the request on or about
November 21, 1953, cannot be supported by the content of the original charge. The
position of the Respondent in this connection is not well taken, and its motion to
strike the particular paragraphs of the complaint referred to is hereby denied. The
charge is within the requirements of Section 10 (b) of the Act, and the complaint
follows the allegations of the charge. Cf. Cathey Lumber Company, 86 NLRB 157,
159, et seq., and Knickerbocker Manufacturing Company, Inc., 109 NLRB 1195,
1197.
The motion to dismiss the complaint is stated on several grounds. First it is said
that the complaint is not based upon any charge verified or sworn to as required
by Section 102.11 of the Rules and Regulations of the Board, series 6, as amended.
An examination of the original charge filed herein on May 20, 1954, discloses that
this assertion is not well founded. As further grounds in support of the motion,
it is alleged that there is no affirmative allegatioti in the complaint that it is issued
pursuant to a charge made by a labor organization with an affidavit on file with the
Board executed contemporaneously or within the preceding 12-month period by each
officer of such labor organization as required by the Act; that there is no affirmative
allegation that the Charging Union prior to the filing of the charge and issuance of
the complaint filed with the Secretary of Labor copies of the constitution and bylaws.
in a report as required by the Act; and that there is no affirmative allegation in the
5It is provided in the Rules and Regulations of the Board , series 6 as amended , 12 F. R.
5656 , 13 F. R. 4872 , compiled and published in the Federal Register and effective June 3,
1952
HEARINGS
Sec. 102 34 Who shall conduct , to be public unless otherwise ordered.-The
hearing for the purpose of taking evidence upon a complaint shall be conducted by
a trial examiner designated by the chief trial examinee , Washington , D C , or the
associate chief trial examiner , San Francisco , California , as the case may be, unless
the Board or any member thereof presides At any time a trial examiner may be
designated to take the place of the trial examiner previously designated to conduct
the hearing . Such hearings shall be public unless otherwise ordered by the Board or
the trial examiner
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint that the Charging Union has complied with Section 9 (h) of the Act.
Section 9 (h) provides that:
No investigation shall be made by the Board of any question affecting com-
merce concerning the representation of employees, raised by a labor organiza-
tion under subsection (c) of this section, and no complaint shall be issued
pursuant to a charge made by a labor organization under subsection (b) of
section 10, unless there is on file with the Board an affidavit executed contem-
poraneously or within the preceding twelve-month period by each officer of such
labor organization and the officers of any national or international labor or-
ganization of which it is an affiliate or constituent unit that he is not a member
of the Communist Party or affiliated with such party, and that he does not be-
lieve in, and is not a member of or supports any organization that believes in
or teaches, the overthrow of the United States Government by force or by any
illegal or unconstitutional methods. The provisions of section 35A of the
Criminal Code shall be applicable in respect to such affidavits.
The position of the Respondent in these respects is not well taken. The question of
fact attempted to be raised as a question of law is a matter for the Board's own
administrative determination and is not a matter which the Respondent is entitled
to raise and litigate in an unfair labor practice proceeding. N. L. R. B. v. Vulcan
Furniture Manufacturing Corporation, 214 F. 2d 369 (C. A. 5), cert. denied 348 U. S.
873; American Rubber Products Corp. v. N. L. R. B., 214 F. 2d 47, 55 (C. A. 7);
Nineteenth Annual Report of the National Labor Relations Board, pp. 10-12; Pasco
Packing Company, 115 NLRB 437. Had the Respondent offered to prove non-
compliance at the hearing, a different question would have been presented. N. L. R. B.
v. Coca-Cola Bottling Co. of Louisville, 350 U. S. 264. Further in support of its
written motion to dismiss, the Respondent asserts that the complaint and exhibit
(the charge) made a part thereof show that such complaint is purportedly based upon
a charge filed May 20, 1954, by an international representative of the Union, wherein
the sole charges and affirmative allegations claiming unfair labor practices within the
meaning of Section 8 (a) (1), (3), and (5) of the Act only are ( in substance)
these: That the Respondent on or about November 20, 1953, refused to bargain
collectively with agents of the Union and that Respondent discharged certain named
employees on April 23 and 24, 1954, because of their membership and activities
in behalf of the Union; that by said acts and other acts the Respondent restrained,
interfered with, and coerced its employees in the exercise of rights guaranteed by
Section 7 of the Act; that there is no allegation in the charge that the Respondent at
any time subsequent,to on or about November 20, 1953, refused to bargain collectively
with the Union as the bargaining agent of its employees; that there is no allegation
in the charge with reference to the Respondent having put into effect a wage in-
crease for employees within the bargaining unit; that the complaint in its entirety
is based upon the alleged refusal of the Respondent .to bargain with the Union on or
about November 21, 1953, and at all times thereafter, not on or about November 20,
1953; that the allegation that the Respondent on or about October 7, 1954, without
notice to the Union put into effect a general wage increase for all employees in the
unit and that these allegations do not constitute an enlargement of allegations in the
charge but are new and different charges against the Respondent neither embodied
in nor contemplated by the one charge filed May 20, 1954. Respondent further as-
serts that the complaint is insufficient to authorize the making of any order by the
Board against the Respondent, and that the complaint is an independent action of
the Board not authorized by the Act.
The complaint is sufficient on its fact, and the several grounds in support of this
motion to dismiss set forth above are not well taken. N. L. R. B. v. Dinion Coil Co.,
201 F. 2d 484 (C. A. 2), enfg. 96 NLRB 1435; N. L. R. B. v. Morris Harris, d/b/a
Union Manufacturing Company, 200 F. 2d 656 (C. A. 5), enfg. 95 NLRB 792;
N L. R. B. v. Globe Wireless, Ltd., 193 F. 2d 748 (C. A. 9); Cathey Lumber Com-
pany, supra. This motion to dismiss, on the grounds stated, is denied in its entirety.
During the course of the hearing, the Respondent made various other motions to
dismiss, which are disposed of in accordance with the determinations below.
The motions of the Respondent for bills of particulars made during the course of
the hearing need not be resolved herein because of stipulations entered into by and
between counsel for the several parties during the course of the hearing.
Upon the entire record in the case, from his observation of the witnesses, and
after examination of all the exhibits and careful consideration of arguments and
briefs, the Trial Examiner makes the following:
FANT MILLING COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
1291
The Respondent, Fant Milling Company, is and has been at all times material'
hereto, a corporation duly organized under and existing by virtue of the laws of the
State of Texas, having its principal office and place of business at 408 East King
Street in the city of Sherman, Texas, and is now and has been at all times herein
mentioned, continuously engaged at said place of business in the milling of flour and
similar products from grain and in the manufacture and sale of baking powder, mixed
feeds, cake mixes, and related products. The Respondent also maintains a plant at
Gainesville, Texas, and distributing warehouses at various other cities in the State of
Texas. The Respondent, in the course and conduct of its business operations at
Sherman, Texas, during the 12-month period ending December 31, 1954, which
period is representative of all times material hereto, purchased in excess of $10,000,000
worth of raw materials, consisting principally of grain, of which more than $2,000,000
worth was shipped in interstate commerce to the Sherman, Texas, plant of the Re-
spondent from points outside the State of Texas. During the same period, the
Respondent sold products consisting principally of flour, mixed feeds, baking powder,
cake mixes, and related products valued in excess of $10,000,000, of which more
than $2,000,000 worth was shipped in interstate commerce from its Sherman, Texas,
plant to points outside the State of Texas.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Grain Millers, AFL-CIO, is a labor organization within
the meaning of Section 2 (5)- of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary findings
Pursuant to an order of the Board, an election among the employees in the desig-
nated bargaining unit was held on June 19, 1952, to determine whether or not the
employees desired to be represented by the Union for the purposes of collective bar-
gaining. The results of the election showed that 94 eligible employees out of 179
voted for the Union; on June 26, 1953, the Union was certified as the exclusive bar-
gaining agent of the employees in the unit specified in the Board order. Immediately
after the election, on the day it was held, Roy O. Wellborn, international vice presi-
dent of the Union, on behalf of the Union, requested that the Company begin negoti-
ations looking forward to a collective-bargaining agreement. Wellborn was then in-
formed by representatives of the Company that they would not be available, due to
prior commitments, during the month of July. On August 2, 1953, Wellborn directed
a letter to Fred Honea, executive vice president of the Company, requesting a meeting
for August 13, 1953.
On August 13, 1953, Wellborn, with 5 or 6 employees constituting a committee of
the Union, met with Honea and V. I. Martin, executive vice president and vice presi-
dent, respectively, of the Company, at the Company's offices at Sherman. At that
meeting Wellborn presented the company representatives with a proposed collective-
bargaining agreement consisting of some 52 numbered paragraphs. The meeting
lasted for perhaps lih hours during which time Wellborn went through each para-
graph of the proposed agreement. Near the end of the meeting Wellborn requested
from the Company a list of its employees, their seniority dates, a list of departments
in the plant, and a list of the classifications and wage rates of the employees in the
several departments. He was informed that the Company had no records showing
seniority dates of many employees; he was supplied with a partial list of departments
within the Sherman plant. After some general discussion, principally concerning
procedures to be followed in trying to determine the seniority of employees, it was
agreed that the parties would meet again on August 27. The meeting scheduled for
August 27 was postponed to September 3 at the request of the Company and, again
at the Company's request, to September 5, 1953.
At the September 5 meeting, C. H. Gillespie, Jr., an attorney for the Company,
entered negotiations for the first time. This meeting was held at his offices in
Sherman, as were all subsequent meetings, mentioned below; Martin was with him,
also representing the Company. Wellborn was spokesman for the Union, he being
accompanied by the union committee, employees of the Company. Because Gillespie
had just entered the scene, it was necessary to review the union proposals for his
benefit, and as a consequence the net result of that meeting was about the same as the,
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of August 13. The Union mildly objected to the presence of a court reporter,
who was there to take stenographic notes of what was said at the meeting . Gillespie
objected to the preamble of the Union's proposal which mentioned "Local 64" as being
a party to the contract because he did not want employees of other employers, mem-
bers of Local 64, sitting in on contract negotiations, and, Wellborn agreed that none
other than employees of the Company would serve on any union committee during
bargaining .6 A number of other of the paragraphs of the Unioii's*proposal were dis-
cussed and generally objected to and criticized by Gillespie, speaking for the Com-
pany. Among the matters discussed at the meeting were these:
The Company would neither then accept nor reject the request of the Union for
a payroll deduction of union dues (checkoff), and suggested that if it did agree, the
checkoff should be revocable at any time; the Company expressed opposition to the
request of the Union for payment of wages at overtime rates (time and one-half) for
hours worked in excess of 8 in any 1 day; and there was general discussion concerning
staggered workweeks, Sunday work, the granting of a 6th paid holiday, and holiday
pay at premium rates. This meeting was adjourned with a definite date set for
,another meeting. After an exchange of correspondence, the next meeting finally
was set for and held on September 26, 1953.
After demand for a bill of particulars by counsel for the Respondent made at the
hearing, it was stipulated between the parties (in lieu of a bill of particulars) that on
and after September 26, 1953, a number of meetings were held in the offices of
Gillespie & Gillespie, attorneys for the Company, in Sherman, Texas, during which
meetings representatives of the respective parties discussed certain provisions to be
incorporated into a collective-bargaining agreement. The dates, together with the
representatives of the Respondent who were present at each of these meetings, it was
stipulated, were as follows:
Sept. 26, 1953 Gillespie, Honea, Martin, and O. B. Fisher (an attorney repre-
senting the Company).
Nov. 12, 1953 Company representatives, Gillespie, Fisher, and Martin.
Dec. 9, 1953 Company representatives, Gillespie, Fisher, Honea, and Martin.
Jan. 8, 1954 Company representatives, Gillespie, Fisher, Honea, and Martin.
Apr. 2, 1954 Company representatives, Gillespie, Fisher, Honea, and Martin.
Apr. 8, 1954 Company representatives, Gillespie, Honea, Martin, and Fisher.
Apr. 22, 1954 Company representatives, Gillespie, Honea, Fisher, and Martin.
May 6, 1954 Company representatives, Gillespie, Fisher, Honea, and Martin.
May 20, 1954 Company representatives, Gillespie, Fisher, and Martin.
June 11, 1954 Company representatives, Gillespie, Fisher, and Martin.
July 2, 1954 Company representatives, Fisher, Gillespie, and Martin.
July 16, 1954 Company representatives, Gillespie, Fisher, and Martin.
July 30, 1954 Company representatives, Gillespie, Fisher, Honea, and Martin.
Aug. 27, 1954 Company representatives, Gillespie, Fisher, and Martin.
Sept. 17, 1954 Company representatives, Gillespie, Fisher, and Martin.
Oct. 15, 1954 Company representatives, Gillespie, Fisher, and Martin.
Nov. 19, 1954 Company representatives, Gillespie and Fisher.
At each of these meetings either Wellborn or Ralph Cox, an international repre-
sentative of the Union, or both of them, led the negotiations on behalf of the Union;
a committee, usually 4 or 5 men, employees of the Company, also were present at
each meeting except the one held on October 15, 1954, when only Wellborn was
there. On April 2, 1954, at the request of the Union, Commissioner T. F. Morrow,
of the Federal Mediation and Conciliation Service, was present; he appeared there-
after at the meetings held on April 8, May 6, May 21, July 2, and July 16, 1954, in
an effort to assist the parties in reaching agreement.
A court reporter was present and made a stenographic record of each meeting,
later transcribed. The transcript of each meeting was received in evidence at the
hearing, pursuant to the following stipulation between counsel for the parties:
Mr. THOMPSON (for the General Counsel) : In connection with the exhibits
identified on the record previously, General Counsel would like to propose the
following stipulation:
It is hereby stipulated and agreed by and between counsel for the respondent,
counsel for the charging union and counsel for the General Counsel that Re-
spondent's Exhibits 3 through 20 for identification, such exhibits being transcripts
of negotiation meetings between the respondent and the union, were obtained
9 Local 64 is comprised of employees of other grain milling plants in the area ; employees
of the Company would become members of Local 64 after appropriate action by the parent
body
FANT MILLING COMPANY 1293
by the respondent and submitted to the union and to counsel for the General
Counsel. Further, that if the reporters who were present and recorded said
meetings were called as witnesses in this proceeding, said reporters would testify
that these transcripts were made by them from their recordings and constitute
a complete transcription to the best of their ability and skill. Further, that said
transcripts are substantially correct.
Mr. WELLS (for the Union): As we indicated off the record, we are agreeable
to the stipulation except for the last sentence, namely "Further, that said tran-
scripts are substantially correct." We do not agree to that.
Mr. FISHER (for the Respondent): Respondent accepts the stipulation in its
entirety and only in its entirety.
TRIAL EXAMINER: The stipulation, then, as between counsel for the General
Counsel and counsel for the Respondent as offered by counsel for the General
Counsel, is received as a stipulation between all the parties, with the modification
suggested by Mr. Wells on behalf of the union?
The Trial Examiner has examined the some 1,500 pages of transcripts covering the
negotiations between the parties in an effort to determine whether (1) the Company,
on its side, entered into the negotiations with a preconceived plan or a later-conceived
plan only to go through the motions of apparent bargaining with no intent to reach
final agreement with the Union; or (2) whether the Union was unreasonable in its
demands and its refusal to yield on its main requests presented to the Company; or
(3) the parties reached a point whether further bona fide discussions on disputed
matters would necessarily lead to a dead end. The Trial Examiner, in reaching the
findings and conclusions set forth below, had considered the testimony given by
Wellborn, Cox, and Martin (each a credible witness), in connection with the posi-
tions of the parties over the bargaining table, as reflected by the written record. It
certainly is neither the duty,nor the province of the Trial Examiner to determine the
merits of proposals and counterproposals advanced during the give-and-take of col-
lective bargaining betweenw.union and employer; 8 however, it here is his responsibility
to make a finding as to whether or not the Company did refuse and continues to
refuse to bargain collectively with the Union, and to decide in the first instance
whether the wage increase put into effect by the Company amounted to an unfair
labor practice. It seems necessary, therefore, to review the history of bargaining
between the parties as reflected by the written record of the negotiations between
the parties, the testimony taken at the hearing, and the pleadings herein.
B. Rdsumd of bargaining meetings
September 26, 1953: It was again agreed, as at the prior meeting, that the parties
understood that any agreement made on particular paragraphs or clauses of a pro-
posed agreement would be tentative, and subject to a full agreement being made.
There was a general discussion covering the first 30 paragraphs of the Union's pro-
posed agreement.
November 12, 1953: Representatives of the Company presented proposals in the
form of a draft agreement, which the Union promised to study; the parties then re-
verted to a discussion of clauses in the Union's proposed contract, including clauses
covering the duration and termination of a contract. The position of the, Company
regarding the handling of grievances, and its opposition to a provision for arbitration,
was debated. Job classifications were discussed.
December.9, 1953: The«paities discussed the proposals of the Company, particularly
the right of the Company to make wage increases according to its sole discretion, and
the clauses defining seniority in the making of promotions; an apparent agreement was
reached covering the use of a bulletin board by the Union. The union request for
arbitration of grievances as a final step in the grievance procedure ended in disagree-
ment, the Company insisting that determination of a grievance should, if necessary,
be finally made by the president of the Company.
January 8, 1954: A general discussion on seniority pointed up the union request
that in the event of promotions,,recalls after layoffs, and so on, the employee having
the longest service should have first right to the job, and that his qualifications to do
° The transcript reporting the meeting of May 6, 1954, previously had been offered and
received in evidence.
The Act does not mean that the Board is empowered to regulate hours, wages, or work-
ing conditions of employees ; these conditions may be as bad as the employees may tolerate
or as good as they can obtain through collective bargaining. The Act does not fix nor
does it authorize anyone to fix generally applicable standards for working conditions.
See Terminal Railroad Assn. V rtirotherhood of Railroad Trainmen, 318 U. S. 116.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the work should be a secondary consideration; on the other hand, the Company main-
tained that qualification for the job should come first in determining whether a
senior man was entitled to the job. It was agreed that proposed provisions covering
vacations, management rights, regular workweek, "no-strike, no lock-out," and the
work of truckdrivers would be rewritten pending a next meeting.
January 29, 1954: Revised proposals covering regular workweek, staggered work-
week, shift differentials in hourly pay rates, "no-strike, no lock-out" clauses, penalty
clauses for contract breach, and the preparation of a seniority list were gone over,
without agreement on any, except an apparent agreement on the definitions of
workweek, Cox and Fisher to rewrite the clausg, and a qualified acceptance by the
Company of an 8-cent 'and 6-cent instead of an 8-cent and 5-cent per hour shift
differential.
April 2, 1954• Commissioner Morrow appeared, and there was a review of what
previously had been agreed to and what was not; also discussion on a rewrite of the
workweek, clause, seniority and promotion and callbacks, probationary employees,
vacations, and grievance procedure.
April 8, 1954: This meeting was mainly devoted to a review of certain contract
clauses as rewritten by Fisher, and to provisions concerning wage rates and job,
classifications. '
April 22, 1954: At this meeting, the Company stated again its position on a
no-strike provision and on arbitration; it demanded a penalty clause in the event of
an illegal strike, and refused to agree to arbitration by a third party of differences
arising under a contract. Pay rates for new female employees, seniority, vacations,
management rights, pay after reporting in and no work, daily overtime as against
overtime for hours worked over 40 in a workweek; the possibility of and the Union's
opposition to a staggered workweek, and holiday pay, were debated.
May 6, 1954: Gillespie summarized the April 22 meeting; there followed some
discussion concerning call-in and reporting time as applicable to truckdrivers and
others. Most of the emphasis of this meeting was placed on the grievance procedure
as proposed by each party, Wellborn contending that to make the president of the
Company the final arbiter would not give the Union any right of appeal, and
Gillespie asserting that in such case the grievance if justified could be taken into
court.
May 21, 1954: The Company presented a wage clause, and the Union objected
to the proposed unilateral right of the Company to raise and lower wages, at which
the Company pointed out a provision in the proposal which would give the Union
the right to terminate the contract should the Company reduce wages. The Union
requested a 15-cent-per-hour general increase in wages, which the Company
impliedly refused to consider as a serious demand. Cox for the Union, without
making a direct offer, suggested that the Company consider restricted arbitration,
limited to discharge cases. Seniority,-job classifications and differentials in pay,
and the Company's request for a penalty clause in a "no-strike" provision were
touched upon.
June 11, 1954: The Union again voiced its request for provision for arbitration of
all grievances, and refused to concede the right to the Company to grant unilateral
wage increases. Seniority and promotions and classifications were discussed. On
the points at issue, the Union stood firm, and the Company refused to yield without
some suggestion of compromise from the Union.
July 2, 1954: After a summary of the meeting of June 11, a discussion ensued
concerning the right of the Company to make individual merit increases without
consulting the Union. Prior agreements and disagreements were reviewed; Wellborn
was charged with the drafting of a new management clause; and the Company was
reminded that it had not supplied a seniority list. Cox read a clause covering the
hours of work of truckdrivers, not agreed to; argument was resumed over the form
of the management rights clause; and the Company refused to write into a contract
any provision establishing vacation rights for employees, asserting that it intended
to continue its vacation policy if possible.
July 16, 1954: The Union presented a rewrite of provisions intended to cover
seniority, which was refused by the Company. Consistent with its prior position,
the Company maintained that it will recognize seniority, that with respect to layoffs,
promotions, demotions , and recalls, seniority should mean continuous service com-
bined with ability to do the work; just as consistently, the Union says that seniority
should mean length of continuous service, and that the senior man is entitled to the
joh until it is shown that he is unable to perform the work properly. In this
connection the parties at this meeting debated what ought to happen if a senior
man failed to report to work on notice, and other situations where he might lose
his seniority.
FANT MILLING COMPANY 1295
July 30, 1954: The debate over seniority provisions as proposed by each party
was continued, without result. In connection with the proposals to govern the
handling of grievances, gone into at some length, the Company again firmly rejected
arbitration as a final step, and insisted that the president of the Company or any
designee of his from top management would settle any grievance impartially and
objectively.
August 27, 1954: The Company again stated its position on seniority, and a long
discussion followed: the Company wanted "discharge for cause," "demotions," and
"promotions" tied in with seniority rights, while the Union wanted these subjects
separately handled; with respect to discharges for "just cause," the Union wanted,
in the seniority provision, a clause affirmatively showing that an employee would
know that he would not lose seniority when fired without just cause, while the
Company wanted to retain the right to fire for what in its discretion would be just
cause. It was agreed by Wellborn that he would rewrite an arbitration clause.
September 17, 1954: Lack of agreement on the arbitration of grievances, a
general wage increase of 15 cents per hour or negotiation for a lesser general increase
after agreement on other contract provisions, provisions for a penalty clause in the
event of illegal strike or lockout, pay during jury duty by an employee, and pay for
overtime in a day is apparent from the record of the meeting of this day. The
Company indicated that it was willing to write into a contract a provision to the
effect that it would do its best to continue its policy of granting a vacation of 1
week per year, but would not agree to more.
October 15, 1954. The general wage increase of October 7, made by the Company,
and Wellborn's request for an explanation of why the increase was put into effect
without notification to the Union, or advice to him; talk with respect to the "no-
strike" and arbitration clauses as proposed by each party; and Wellborn's request for
a seniority list constituted the important matters discussed at this meeting.
November 19, 1954. At this meeting, Gillespie and Fisher represented the
Company, and Wellborn and one committeeman were present for the Union. The
Company in effect said that in view of failure of the Union to make any effort to
agree to the main points at issue, it felt that further negotiations would be fruitless,
and that it therefore would not continue bargaining negotiations; the Union in turn
in effect said that the Company had refused anything other than its own terms
before it would make an agreement. The Company in substance said it was
informed, and believed, that the Union no longer represented a majority of the
employees in the bargaining unit, and therefore it was no longer under obligation
to deal with the Union. The Union replied that it believed it still represented the
employees in the bargaining unit.
The Testimony
Wellborn and Cox, as the first witnesses at the hearing, undertook under examina-
tion by counsel for the General Counsel and counsel for the Union, and under
cross-examination and on voir dire, to relate the history of collective bargaining
between the Union and the Company as representative of the employees of the
Company in the described unit. Each of them had fair memory, considering the
lapse of time between the first negotiation meeting in 1953 and the time they were
called to testify at this hearing; each had made his notes during or almost after the
meetings with company representatives; and it appears from the transcript of the
negotiation meetings that each testified honestly and according to his best recollec-
tion. The Trial Examiner is satisfied that the written record of those meetings is
substantially accurate, and is not in conflict with the testimony of either Wellborn
or Cox, so that it appears unnecessary to comment upon the facts related by them at
the hearing. Their participation in negotiations and their efforts on behalf of the
Union, as shown by written record, substantiate generally what was testified to by
them at the hearing.
Vice-President Martin testified on behalf of the Company substantially as follows:
Before assuming a position with the Company in March 1930 , he served as executive
vice president and assistant general manager, and as president of Universal Mills at
Fort Worth, Texas; he has known Wellborn and Cox since the year 1945, through
having engaged with them in union contract negotiations and having entered into a
collective-bargaining agreement in the fall season of that year (he on behalf of
Universal Mills and they on behalf of the Union); on or about January 26, 1953,
he was employed by the president of Fant Milling Company; and prior to this em-
ployment he saw Wellborn once or twice or possibly more during a contract year.
He said further that as vice president and assistant general manager of the Company
he acts as assistant to the president, having the corporate duties of a vice president;
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that after the election of the Union as bargaining representative 9 he and Honea met
with Wellborn and a union committee in August 1953, at which time the proposed
union agreement was discussed; that James A. Fant, the president of the Company,
at no time was present at this or subsequent meetings with the Union; and that after
the first meeting in August between him with Honea and Wellborn and the union
committee, a meeting was held in Fant's office at which time Fant designated Gillespie
and Fisher, as attorneys for the Company, with Martin and Honea, to negotiate a
workable contract fair to both the Union and the Company; and then Fant expressly
told them that he would not sign a contract that contained (1) an arbitration clause,
(2) a no-strike and no-lockout clause where no penalty was attached (for breach
by either party); and (3) that he would not accept seniority as the sole governing
factor in making promotions, demotions, recalls, or layoffs. It further appears from
Martin that Fant's instructions were not plainly stated to the union representatives
as being the instructions of Fant, but Wellborn was informed that, on these issues,
the representatives of the Company had taken an irrevocable stand. This witness
testified, too, that just before the meeting between the Company and the Union in
the month of September 1954,10 he had received information from the elevator
superintendent, Claude Atnip, that the employees no longer desired to be represented
by a union; that after the meeting with the Union on September 17, representatives
of the Company determined, from close questioning by them of supervisory per-
sonnel, that the information given to Martin by Atnip was true, and that the em-
ployees were no longer interested in union activity. The supervisors, other than
Atnip, who were questioned on the point, according to Martin, were Ben Blackburn,
general superintendent, and Johnny Koon and Ralph Robertson, cosuperintendents of
the feed mill. Martin confirmed the company view that Wellborn for the Union
was adamant in his position regarding arbitration, seniority, and other points at main
issue. He said that on or about October 4 or 5, 1954, in a conversation with Well-
born, the latter expressed a willingness that a 7-cent per hour wage increase would
be accepted as authorized by Fant, except that he (Wellborn) should first be con-
sulted, and that, when Martin had told him, "Roy, I have increased wages at plants
before without consulting you and had no objection," Wellborn made no objection
to the contemplated wage increase, later announced on October 7.11 Adjustments in
pay in job classifications, put into effect in April 1954, were, Martin said, made
effective after discussion with union representatives.
In substance, it appears from the testimony of Wellborn, Cox, and Martin that
after discussions with the Union, but without prior notice to the Union, the Company
did in April 1954 make certain revisions in its pay scale; and that in October 1954,
without formal consultation with or communication to the Union, did make a
general wage increase of 7 cents per hour to those employees within the bargaining
unit . On October 6, 1954, the Company posted a notice-" Pay Bulletin"-announc-
ing the general wage increase . The Union had not been consulted concerning the
form of the notice or its posting.
The following notice was posted by the Company under date of November 19,
1954, signed by Jas. A. Fant, president:
To Our Employees:
For more than a year your Management attempted to negotiate a contract
with the Grain Millers' Union in line with the election held in this plant in 1953.
It is impossible to reach an agreement with the Union which Management felt
was fair to the Company and to its employees, and which would permit con-
tinued efficient operation of the Company for its stockholders and for its
employees.
Management has lately learned through statements made by various em-
ployees, that the majority of its employees no longer desire to be represented
by the Union in all matters concerned with working conditions at this plant.
Therefore, we have today notified the Union that henceforth Management
will resume dealing directly with its own employees concerning wages and
working conditions, and no longer recognizes the Union as the bargaining
agent for its employees.
e Case No. 16-RC-1289
"Evidence offered through the testimony of Martin, as to the numbers of union but-
tons worn by employees at various times, as showing loss of membership, was rejected
u The transcript covering the negotiation proceedings for October 15, 1954, shows that
Wellborn demanded from the Company an explanation as to why the wage increase was
put into effect without notification to the Union
FANT MILLING COMPANY 1297
A copy of this notice was transmitted to Wellborn by Gillespie at the request of
Wellborn, under date of November 23, 1954, in a letter in which Attorney Gillespie
said (in part) that "the information which the Company had, with reference to the
desire of its employees, came through verbal statements of the employees."
C. The Pleadings
The issues presented here by the complaint and the amended answer have been
set forth above. A continued refusal to bargain in good faith is asserted on the
one side; a denial of violation of the Act is made on the other. Upon the pleadings,
it is possible for the Trial Examiner to make a finding that, justifiably or not, the
Company did grant a general wage increase without the prior knowledge or consent
of the Union, as alleged in the complaint. The validity of the justification as pre-
sented by the Company is decided below.
Concluding Findings
The pertinent provisions of the Act to be considered herein are these:
SEC. 7. Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and shall also have
the right to refrain from any or all of such activities except to the extent that
such 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).
SEC. 8. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 7;
(5) to refuse to bargain collectively with the representatives of his em-
ployees, subject to the provisions of section 9 (a).
In his effort to determine the right findings here, with respect to good-faith bargain-
ing, the Trial Examiner has looked for guidance to N. L. R. B. v. American National
Insurance Company, 343 U. S. 395, pp. 402 and 404:
. The Act does not compel any agreement whatsoever between employees
and employers. Nor does the Act regulate the substantive terms governing
wages, hours and working conditions which are incorporated in an agreement.
The theory of the Act is that the making of voluntary labor agreements is en-
couraged by protecting employees' rights to organize for collective bargaining
and by imposing on labor and management the mutual obligation to bargain
collectively.
In 1947, the fear was expressed in Congress that the Board "has gone very
far, in the guise of determining whether or not employers had bargained in good
faith, in setting itself up as the judge of what concessions an employer must make
and of the proposals and counterproposals that he may or may not make."
Accordingly, the Hartley Bill, passed by the House, eliminated the good faith
test and expressly provided that the duty to bargain collectively did not require
the submission of counterproposals. As amended in the Senate and passed as
the Taft-Hartley Act, the good faith test of bargaining was retained and written
into Section 8 (d) of the National Labor Relations Act. That Section contains
the express provision that the obligation .to bargain collectively does not compel
either party to agree to a proposal or require the making of a concession.
From this, then, it appears that the standards to be applied in an attempted resolution
of whether a party to collective-bargaining negotiations has acted in good faith
must be applied to the facts in each particular case, which leaves here the question of
whether the Company engaged in mere surface bargaining without any intent of
making a final contract with the Union except on its own terms, or whether it stood
fast against unreasonable demands by the Umon.12
'a Cf N. L R B. v. WWhattser Mills Co, 111 F. 2d 474 (C A 5) ; N L R. B. v. Athens
Mfg Co, 161 F. 2d 8 (C. A. 5) ; N. L. R. B. v. Tower Hosiery Mills, Inc, 180 F 2d 701
(C. A. 4) ; Texas Foundries, Inc. v N. L. It. B., 211 F. 2d 791 (C. A. 5) ;
N. L. R B. v. Mayer, d/b/a Cherokee Hosiery Mills, 196 F 2d 286 (C. A. 5) ; see also
N. L It. B. v. Reed & P7ance Manufacturing Company, 205 F. 2d 131 (C A. 1), cert. de-
423784-57-vol 117-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It would seem that after some 20 bargaining sessions , covering a period of some
15 months , the Union and the Company could or should have come to some agreement
which they might have been able to put in writing.13
It seems almost inconceivable that company representatives could sit down over the
long period of time with union representatives as they did here and not be considered
to have been bargaining in good faith . Likewise it is hard to understand how the
union representatives could bargain as long as they did and come to a complete impasse
with the Company . As pointed out by the Respondent , a good many minor matters
were settled through this long period of negotiation ; on the other hand , as pointed out
by the Union and the General Counsel , the Company from the first moment of
meeting refused to accede or to bargain in any respect (except to engage in general
discussion ) on important matters such as seniority , the writing of a holiday clause,
and other conditions requested by the Union . The Company earnestly contends that
the Union refused in any way to bargain in good faith on the question of wages but
remained adamant in its position that it should have a general increase of 15 cents
an hour for each employee in the bargaining unit; the Union just as consistently
maintains that it was always ready to bargain on the question of wages as soon as
the company representatives would yield in any respect to promotions , layoffs, and
recalls; seniority would have some bearing on the way in which these and other condi-
tions of employment were to be regulated under a collective -bargaining agreement.
The Union certainly made more concessions during this long period of bargaining
than the Company did. In Hinde & Dauch Paper Company, 104 NLRB 847, the
Board laid down the following rule, as asserted by it in earlier cases:
a certified union 's majority status , in the absence of unusual circumstances,
is conclusively presumed to continue for 1 year following certification.
In American Steel Foundries, 112 NLRB 531 , the Board considered its use of the
meaning of "unusual circumstances ," which apparently include, for example, those
unusual circumstances which would forgive an employer from continuing ( or starting)
to bargain with a certified union , and include those where, during the certification
year, an effective schism occurred in the ranks of the union or it had become defunct.
(See cases cited therein , footnotes 2 and 3.)
An important question here is whether or not the record reflects a refusal on the
part of the Respondent to bargain at a time when it was honestly at an impasse with
the Union and was fully convinced that the Union no longer represented a majority
of the employees in the bargaining unit , or whether the Respondent 's refusal to bar-
gain was not motivated by a good-faith doubt of the Union 's majority status. The
critical question is whether under the circumstances of this case the Employer was
entitled to withdraw recognition of the Union on the basis of a good-faith doubt as
to the Union 's majority . See N. L. R. B. v. Kobritz, 193 F . 2d 8 (C. A. 1), and
cases there cited ; Joy Silk Mills v. N. L. R. B ., 185 F. 2d 732 (C. A., D. C.), cert
denied 341 U. S. 914 ; Brooks v. N . L. R. B., 348 U. S. 96, 101. Cf. N. L. R. B.
v. Everett Van Kleeck and Company , 189 F. 2d 516 (C. A. 2).
The Board has heretofore held that ordinarily a good-faith bargaining impasse
connotes the futility of further negotiations and in the case of the employer -party to
the collective relations , leaves that employer free to take certain economic steps not
dependent upon the mutual consent of the union . Central Metallic Casket Co., 91
NLRB 572. This doctrine of permissible unilateral conduct by the employer is
limited to matters which , before the good-faith impasse, had been presented by the
employer to the union as a subject for bargaining or had been discussed at a bar-
gaining conference . I. B. S. Manufacturing Co., 96 NLRB 1263. Here did such
unilateral action go beyond the limitation of the rule ? The Trial Examiner thinks it
did. The employer bypassed the certified representatives of its employees in granting
the wage increase , and such conduct reasonably must have been interpreted by the
need 346 U. S 887, wherein the court said, "In such a case the question is whether it is
to be inferred from the totality of the employer's conduct that he went through the mo-
tions of negotiation as an elaborate pretense with no sincere desire to reach an agree-
ment if possible, or that it bargained in good faith but was unable to arrive at an accept-
able agreement with the union "
" There was, at the outset of hearing, a claim at least impliedly asserted that the com-
pany representatives deliberately engaged in procrastination as to the time of the opening
and the following days of meetings. The Trial Examiner did not permit much testimony
to this effect. Gillespie, Martin, and Honea, of the main negotiators, had offices in Sher-
man, Texas ; Fisher is located in Paris, Texas ; Wellborn lives in and travels from Okla-
homa City, Oklahoma, and Cox lives in Enid , Oklahoma. So far as appears from the
record, each meeting date was set for the convenience and availability of each of these
men.
FANT MILLING COMPANY 1299
respondent's employees as a withdrawal of recognition of the union 's representative
status and was, in effect, an impairment of the collective-bargaining process. In
the circumstances of this case, the action of the respondent constituted, per se, a
violation of Section 8 (a) (5) and (1) of the Act (N. L. R. B. v. J. H. Allison & Co.,
165 F. 2d 766 (C. A. 6) ), if the employer was inspired to grant a wage increase in
order to discourage, and therefore interfere with, employee activity, or union repre-
sentation of its employees. Cf. N. L. R. B. v. Crompton-Highland Mills, 337 U. S.
217, 221-223.
The Respondent, in support of its position, relies on the decision of the Court of
Appeals for the Sixth Circuit in Mid-Continent Petroleum Corp., 204 F. 2d 613.
There, in a consent election, the truckdrivers operating from a plant of the employer,
having been found to constitute an appropriate bargaining unit, selected the Teamsters
union as their exclusive representative for collective-bargaining purposes. Six em-
ployees were in the unit , of which 4 voted for the union representation and 2 against
it. After the union's certification as bargaining representative for the employees in
the unit, the employer entered into collective-bargaining negotiations with the union.
Thereafter, without any unfair labor practice by the employer, 1 of the 6 truckdrivers
included in the bargaining unit quit his job for personal reasons, and another em-
ployee was hired in his stead. Thereafter, within the next 10 days, the new em-
ployee and 2 others in the bargaining unit, without the intervention of any unfair
labor practices by the employer, delivered to it separate letters stating, in substance,
that they did not want the union or any other labor organization as their bargaining
representative. Subsequently, the company withdrew recognition from the union
on the ground that it no longer represented a majority of the six employees in the unit
The court, in its decision, held that the small unit of six truckdrivers had the right
to revoke the power of the bargaining agent and that the employer was not guilty of
an unfair labor practice for having failed to bargain with the agent in question after its
power had been revoked; that whenever the will of the employees to revoke the power
of their bargaining agent is clear and unquestioned, effect must be given under the Act
to such revocation, and the employees are thenceforth free to bargain collectively
through an agent of their choice, if they so desire; and further, that Section 9 (c) (3)
of the Act, which prohibits the Board from holding more than one representation
election each year in any given bargaining unit, does not imply that employees may
not repudiate a bargaining agent within such a yearly period. The court reviewed
judicial authority at length, noting those decisions in support of its expressed view,
including N. L. R. B. v. Vulcan Forging Co., 188 F. 2d 927 (C. A. 6) and also the
cases in conflict with its view in other circuits. The court also said:
There is no doubt, of course, that where the employer's obstructive tactics, de-
lays, and other unfair labor practices may have contributed to a loss of majority
status, the employer is guilty of an unfair labor practice in not recognizing the
bargaining agent selected before such unfair labor practices took place. [Citing
Franks Brothers Co. v. N. L. R. B., 321 U. S. 702.1
In the instant case, the reliance of the Respondent on Mid-Continent Petroleum
is misplaced. The factual circumstances in that case and this are different.
General Counsel argues that as indicia of lack of good faith on the part of Re-
spondent during the course of the bargaining negotiations herein, the question of
arbitration and grievances, the question of the application of seniority, the refusal of
the Company to yield in any respect concerning the writing of a no-strike no-lockout
clause, its refusal to put into writing its general practice with respect to pay for holi-
days not worked, its refusal to write into a contract provisions covering vacations, its
refusal to agree in writing not to stagger work hours during a workweek, and its
insistence on its right to grant wage increases in its own discretion, shows conclusively
that the Company was engaged in "surface bargaining" only. On the other side it is
contended on behalf of the Respondent that the Union was equally adamant in con-
nection with its wage demands and in connection with the writing of certain clauses,
on which the Company refused to yield, and that after many months of bargaining
a real impasse was reached, and it became altogether too apparent that no meeting
of the minds with respect to a contract could take place.14
Whether the unilateral wage increase put into effect by the Company as of October
4, 1954, can be considered to be a violation of the rights guaranteed to the employees
under Section 7 and Section 8 (a) (1) of the Act must be decided in accordance with
the facts as reflected by the record herein. In ordinary cases, unilateral action of this
kind by an employer during the time of bargaining with a union would be, without
14 There is no requirement under the Act that parties must continue fruitless contract
negotiations "in the face of a genuine impasse." N L. R B. v. United States Cold Storage
Corp, 203 F 2d 924, 928 (C A. 5).
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doubt, violative of these provisions of the Act. The difference here is this: that
after many months, without substantial agreement between the Union and the Com-
pany on many important conditions of employment , and no agreement between them
regarding wages, the parties were still far apart. Through all the time of contract
negotiations , the question of wage adjustments or wage increases was given little
consideration, except that the Union did demand a 15-cent-per-hour general wage
increase , and did request certain adjustments of pay for certain categories of jobs.
The Union was, at all times material herein , the exclusive representative of the
employees in the certified unit within the meaning of Section 9 (a) of the Act. In
determining whether the Respondent has refused to bargain within the meaning of
the Act, in spite of the fact that the Union was the exclusive representative of the
employees at all times , and the Respondent 's ultimate refusal to bargain with the
Union after a claimed impasse and after the Respondent became convinced that the
union majority was dissipated, consideration must be given as to whether the Re-
spondent's actions in these two important respects were based on a good-faith doubt
of majority and on a true conviction that further bargaining would be useless. The
determination of the question of whether an employer was acting in good or bad faith
at the time of the refusal to continue bargaining negotiations and at the time of the
wage increase in October means a determination which of necessity must be made
in the light of all the relevant facts in the case, including any unlawful conduct of
the employer and the sequence of events.
As related above, the Company did make certain wage adjustments insofar as
wage rates for certain jobs were concerned in the feed mill after the Union had claimed
inequities to be existing at that time, such adjustments having been made by the
Company without consultation with the Union. As further pointed out above, the
company representatives entered into negotiations with strict instructions from the
president of the Company not to yield in any respect on many important conditions of
employment. These facts, together with the disavowal of the Union, the general
wage increase, and the posting of the notice to the employees on November 19, 1954,
comprise a totality of conduct which indicates strongly that the Employer did not
bargain in good faith. Further than this, before the Company undertook to decide
for itself that the rumors of the deterioration in union membership were true, the
Company very well could have invoked the provisions of Section 9 (c) (2) (ii) and
have had the Board determine the question as to whether or not the Union could still
claim the right to represent the employees in the bargaining unit.
This totality of conduct impels the Trial Examiner to find, as he does, that the
Respondent Company engaged in unfair labor practices within the meaning of
Section 8 (5) and (1) of the Act, as alleged in the complaint.
The Trial Examiner finds that on or about November 21, 1953, and thereafter,
on October 6, 1954, and on and after November 19, 1954, the Respondent refused and
since the latter date at all times has refused to bargain collectively with the Union as
the exclusive representative of the Respondent's employees in an appropriate unit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The refusal of the Respondent to bargain collectively with the Union, American
Federation of Grain Millers, AFL-CIO, as the representative of the employees of the
Respondent in a properly certified bargaining unit, as set forth in section III of this
Intermediate Report, in connection with the business activities described in section I
hereof, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States of the United States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent, since on or about November 21, 1953, and there-
after and on October 4 and November 19, 1954, and thereafter, refused and continues
to refuse to bargain collectively with the aforesaid Union as the exclusive representa-
tive of its employees in an appropriate unit, and having found further that the Re-
spondent has failed and refused to bargain collectively with the aforesaid Union with
respect to wages, hours of employment, and conditions of employment, and other
matters as required by the Act, and has granted a certain unilateral wage increase with-
out consulting with the Union as the representative of the employees of the Respond-
ent in an appropriate bargaining unit, and by so doing has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act, it will be recommended that the Respondent cease and desist
therefrom.
LOCAL 450 1301
On the basis of the foregoing findings of fact, and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent , Fant Milling Company, is engaged in commerce and activities
affecting commerce within the meaning of Section 2 (6) and (7) of the Act.
2. American Federation of Grain Millers , AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
3. By refusing and continuing to refuse to bargain collectively with the said Ameri-
can Federation of Grain Millers , AFL-CIO, as the exclusive representative of em-
ployees in an appropriate bargaining unit as certified by the Board , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
4. By refusing and continuing to refuse to bargain with the aforesaid Union as set
forth above, the Respondent has interfered with and continues to interfere with the
rights guaranteed to its employees under Section 7 of the Act, and thereby has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
5. By reason of the acts set forth in paragraphs numbered 3 and 4 , above, and
by granting a unilateral wage increase without consultation with the aforesaid Union
on or about October 6, 1954, the Respondent has interfered with and continues to
interfere with the rights guaranteed to its employees under Section 7 of the Act, and
thereby has engaged in and is engaging in an unfair labor practice within the
meaning of Section 8 ( a) (1) of the Act.
6. The above-described labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Local 450, International Union of Operating Engineers, AFL-
CIO and W. J. Hedrick and H . W. Marschall , Jr., d/b/a Indus-
trial Painters and Sandblasters . Cases Nos. 39-CD-14 and
39-CD-s1. April 19,1957
DECISION AND ORDER
On August 1, 1956, Trial Examiner George Bokat issued his Inter-
mediate Report in the above-entitled proceeding, finding, in Case No.
39-CD-14, that the Respondent had engaged in and was engaging in
certain unfair labor practices, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto, and further
finding, in Case No. 39-CD-21, that the Respondent had not engaged
in and was not engaging in any unfair labor practices and recom-
mending that the complaint in that case be dismissed, insofar as it
alleges that the Respondent violated Section 8 (b) (4) (D) of the
Act at the Reynolds Metals Company plant at Gregory, Texas.'
1 In a separate proceeding involving the same parties , Case No. 39-CC-27, the Board is-
sued a Decision and Order, of even date herewith , finding the Respondent not in violation
of Section 8 (b) (4) (A) of the Act on the basis of the same facts with respect to induce-
ment and encouragement as herein constitute the basis for the charge in Case No.
39-CD-21, alleging a violation of Section 8 (b) (4) (D). Local 450, International Union
of Operating Engineers , AFL-CIO ( W. J. Hedrick and H W. Marschall , Jr., d/b /a Indus-
trial Painters and Sandblasters ), 117 NLRB 1310
117 NLRB No. 165.