General Electric Co.

National Labor Relations Board - Board Decisions

Mar 2, 1967

163 N.L.R.B. 198 (N.L.R.B. 1967)

198 DECISIONS OF NATIONAL
Considerable testimony was elicited as to whether or not
.John Cooney ," fit(- industrial relations manager of the
plant here involved from May or June 1962 until October 1,
1965, had been informed by Blankenship and by any other
union officials on and after the date of the above -referred
Koster meeting regarding Koster's demand for
Blankenship 's removal as the machine section steward.
Cooney testified that the first time he, and as far as he
knew any other Respondent official knew , that Koster
demanded or requested that Blankenship be replaced as
steward was on, or shortly after , the day Respondent
received the copy of the charge filed herein.
On the other hand, Blankenship and Homer Virgil, the
Union's then financial secretary and executive board
incinher, testified that on five separate occasions , between
the (late of the aforesaid Koster meeting and the filing of
the charge, Cooney was advised by either Blankenship or
other union officials of the incident and that on each
occasion the union demanded that Cooney take
appropriate action.
It would serve no useful purpose to here resolve this
conflict for the fact remains that Respondent must be, and
is, held responsible for Koster ' s above-described
remarks.' 1
C. Concluding Findings
I am convinced, and find, that by Koster's demand for
Blankenship's removal as the union steward, otherwise
the employees in that section would suffer dire
consequences was not only violative of Section 8(a)(1) of
the Act, but was also violative of Section 8(a)(2) of the Act
because said remarks attempted to interfere with the
normal, lawful internal affairs of the Union. However, I do
not consider this isolated incident, standing alone and
unrelated to any other antiunion conduct of Respondent,
coupled with the fact that (1) Koster's remarks were
directed to the 15 or 16 employees under his direct
supervision whereas at the time of his remarks there were
596 unit employees; (2) Respondent and the Union have
enjoyed a good history of labor relations over a period of a
great number of' years; and (3) search of the Board's
decisions reveals that at no time, from the effective date of
the so-called Wagner Act to date, has the Board ever
issued it cease-and-desist order against Respondent, to be
sufficient to warrant the issuance of' a remedial order by
flit, Board in this proceeding. Accordingly, I recommend
that the complaint be dismissed in its entirety.
I am not unmindful that, despite the fact that the Union,
through Blankenship and others, complained on five
different occasions to Respondent about Koster's above-
referred-to remarks, Respondent took no effective action
to repudiate or disavow thein.12
On the basis of the foregoing findings of fact and upon
fit(, entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in, and during all times
material has been engaged in, a business affecting
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. The Union is, and at all time material has been, a
labor organization within the meaning of Section 2(5) of the
Act.
3. It would not effectuate the purposes of the Act for
the Board to issue it remedial order based upon the facts
herein found.
LABOR RELATIONS BOARD
RECOMMENDED ORDER
It is recommended, upon the basis of the foregoing
findings of fact and conclusion of law, that the complaint
be dismissed in its entirety.
" Erroneously referred to in the stenographic transcript of the
hearing as John Kooney.
11 See, for example, Herb Sadler Budweiser Distributing Co.,
153 NLRB 119.
12 On or about November 15, after Respondent had been
advised by the General Counsel that a complaint was about to be
issued in this matter, Respondent posted the following notice on
its plant bulletin boards:
A claim has been made that the Company was involved in
interfering with the retention of the Shop Steward in the
Machinist Section of the Mechanical Department. The
Company disavows any involvement in interfering with the
selection or retention of Union officials or representatives.
In order that there be no misunderstanding, we want the
Company's position to be made absolutely clear.
Management regards the selection of Shop Stewards or other
Union officials to be solely the concern of the Union.
Accordingly, no foreman or other representative of
Management will interfere with the members' selection of
their Union representatives.
I find that the above-quoted notice does not repudiate, nor does it
disavow, Koster's unlawful conduct.
General Electric Company, Battery Products,
Capacitator Department and International
Brotherhood of Electrical Workers,
AFL-CIO and Local 2156 , International
Brotherhood of Electrical Workers,
AFL-CIO. Cases 12-CA-2793, 2920, and 3268.
March 2,1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 25, 1966, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices in violation of the National Labor Relations
Act, as amended, and recommending that the
Respondent cease and desist therefrom and take
certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended dismissal as to them. Thereafter,
the Charging Party and Respondent filed exceptions
to the Trial Examiner's Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
163 NLRB No. 30
GENERAL ELECTRIC COMPANY
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner with the modifications noted
below.
We agree with the Charging Party that the Trial
Examiner erred in not recommending that the
Respondent, upon request, bargain with the
Charging Party. As the Trial Examiner correctly
found, any loss of majority that may have occurred
herein can be directly traced to Respondent's unfair
labor practices, including its refusal to bargain in
good faith during the certification year. From the
record, it is clear that at least as of April 7, 1964,
Respondent violated Section 8(a)(5) of the Act when
it refused to provide the Union with its wage survey
information while at the same time refusing to even
consider during negotiations a wage survey
submitted by the Charging Party. As the Union was
certified on January 21, 1964, it is, apparent that at
the very least, the Respondent, for a period of
approximately 9 months, deprived the Union of its
right of enjoyment of a status attaching to a labor
organization during its certification year. To place
both Respondent and the Union in the position they
would have been in but for Respondent's unlawful
conduct, we shall direct that, upon the resumption of
bargaining and for 9 months thereafter, the Union
will be regarded as if the initial year of certification
had not yet expired.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, General Electric Company, Battery
Products, Capacitator Department, Gainesville,
Florida, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order, as modified herein:
1. Add the following as paragraph 2(d) of the Trial
Examiner's Recommended Order, the present
paragraph 2(d) and those subsequent thereto being
consecutively relettered:
"(d) Upon request, bargain with the Union as the
exclusive representative of the employees in the
appropriate unit and if an understanding is reached,
reduce it to writing and sign it. Regard the Union
upon resumption of bargaining and for 9 months
thereafter as if the initial year of the certification has
not expired."
2. Add the following immediately before the
paragraph in the Appendix attached to the Trial
Examiner's Decision which begins "The appropriate
unit is:"
WE WILL, upon request, bargain collectively
199
with International Brotherhood of Electrical
Workers, AFL-CIO, and Local 2156 of said
International Union , for the unit described
below, with respect to rates of pay, wages, hours
of work, and other terms and conditions of
employment , and, if an understanding is
reached , reduce it to writing and sign it.
' Capitol Aviation, Inc , 152 NLRB 745, enforcement denied on
other grounds 355 F 2d 875 (C A 7) In view of our affirmative
order that Respondent continue to bargain with the Charging
Party and recognize the continuation of the certification for an
additional 9-month period following compliance with this order,
we find it unnecessary at this time to pass on that conduct of the
Respondent found by the Trial Examiner not to be in violation of
Section 8(a)(5) of the Act. In addition, as the "totality of conduct"
issue was not included in the consolidated complaint, as
amended , nor litigated at the hearing , we find it unnecessary to
pass on the Trial Examiner's conclusion that the totality of
Respondent's conduct would not constitute a violation of Section
8(a)(5) of the Act
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner : These pro-
ceedings, brought under Section 10(b) of the National
Labor Relations Act, were heard at Gainesville, Florida, on
November 29 through December 2, 1965, and on
January 11, 1966. A consolidated complaint was issued on
July 23, 1965, in Cases 12-CA-2793 and 2920 on charges
dated November 19, 1963, January 29, 1964, and April 24,
1964, and an amended consolidated complaint
incorporating Case 12-CA-3268, which was based on
charges dated June 18 and August 17, 1965, was issued on
September 2, 1965. The latter complaint was amended on
November 1, 1965. The complaint alleged in substance
that Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1), (3), and (5) of the Act in
specified respects as set forth in section II, A, infra.
Respondent filed answers in which it denied the unfair
labor practices with which it was charged.
Upon the entire record in the case and from my
observation of the witnesses, Intake the following
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS; THE LABOR ORGANIZATION
INVOLVED
I conclude and find on facts alleged in the complaint and
admitted by answer that Respondent, a New York
corporation, with a plant located at Gainesville, Florida, is
engaged in commerce within the meaning of the Act
(through direct sales and shipments to points outside the
State of Florida of products valued in excess of $50,000)
and that the Charging Union is a labor organization within
the meaning of the Act.
It. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
These proceedings involve only Respondent's
Gainesville plant, which began operations in the spring of
1963. A representation petition was filed by the Charging
Union in June 1963, and an election was conducted on
July 24, which the Union lost. On the Union's objections,
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election was set aside on the ground that the Company
had instituted, promulgated, and enforced a rule
prohibiting the distribution of union literature on company
property; i.e., the parking lot.' At the second election held
on October 30, 1963, the Union won by a vote of 65-62, and
after dismissal of the Company's objections, the Regional
Director issued a formal certification on January 21, 1964.
The Company's petition for review by the Board, filed
February 3, was denied on March 4, 1964.
The unfair labor practice proceedings originated with
the filing of a charge in Case 12-CA-2793 on
November 19, 1963, and an amended charge on
January 30, 1964. Those charges were dismissed after
investigation by the Regional Director on February 11,
1964. The Union's request for review, filed with the
General Counsel, was not acted upon until May 1.3, 1965.
The Regional Director' s rulings were sustained with the
exception of the independent 8(a)(1) allegations of the
charge, on which the case was remanded to the Regional
Director for further investigation.
In the meantime the Union filed a charge on April 27,
1964, in Case 12-CA-2920, alleging violations of Section
8(a)(1) and (5). The Regional Director dismissed that
charge on June 19, but the Union's request for review was
sustained by the General Counsel, also on May 13, 1965,
and the case was remanded to the Regional Director for
the issuance of an appropriate 8(a)(1) and (5) complaint.
Case 12-CA-3268 began with the filing of a charge on
June 21, and an amended charge on August 17, 1965,
claiming violations of Section 8(a)(1) and (3) of the Act.
The consolidated complaint as amended contained
allegations of specific acts by which Respondent was
charged with engaging in unfair labor practices proscribed
by Section 8(a)(1), (3), and (5) of the Act. Briefly stated,
those allegations were as follows:
Four of the 8(a)(1) allegations concerned conduct which
occurred before the first election on July 24, 1963, and
eight concerned conduct which occurred after that date
and before the second election on October 30.
Postelection allegations included alleged coercive
statements made by a supervisor on November 4, by
another supervisor on February 5, 1964, and by a third
supervisor on April 20, 1964. Finally, the 8(a)(1) allegations
included the granting of a unilateral wage increase ro
maintenance department employees on January 20, 1964,
and the interjection by Respondent of itseli into purely
intraunion affairs regarding the taking of a strike vote on
April 20,1964.2
The 8(a)(3) allegations charged Respondent with
discrimination against three employees because of their
participation in the strike (which lasted from May 24
through June 3, 1965, inclusive); i.e., the discriminatory
failure to recall James Wetherington and William Mitchell
on June 7, and the discriminatory layoff of, and withdrawal
of a promotion from, Mary Sherley on June 7 and 11.
The 8(a)(5) allegations charged Respondent with a
refusal to bargain by the following specific acts and
conduct occurring on and after January 23, 1964:
(a) By refusing to produce certain information regarding
the layoff status of certain employees; (b) by refusing in
March and April 1964 to furnish information regarding a
wage survey; (c) by adopting in negotiations an inflexible
That conduct also formed the basis of one of the complaint
allegations of a Section 8(a)(1) violation The Regional Director
found it unnecessary to resolve objections based on other
conduct , some of which is the basis of other 8 (a)(1) allegations
position that it would grant no wage increase, i.e., by
refusing to include in a contract a wage increase pledged
to employees in August 1963, by rejecting the Union's
proposal for a longer term contract which would
incorporate said increase, and by putting said increase
into effect on April 5, 1965, as pledged, 2 days after the
contract with the Union expired; (d) by unilaterally
reclassifying an employee on May 18, 1964, and thereby
unilaterally increasing his wages; (e) by interjecting itself
into intraunion affairs concerning the taking of a strike
vote (also alleged as an 8(a)(1) violation supra); (f) by
informing the Union in March 1965 and later that it would
not enter into an agreement which did not contain a clause
providing that the agreement would not be a bar to an
election; (g) by informing the Union on April 30, 1965, that
it was postponing further negotiations until the Union's
representative status was determined by the Board and by
thereafter failing and refusing to meet and negotiate with
the Union (including specifically a refusal on August 18);
(h) by informing the Union on May 25, 1965, that it would
not meet or negotiate with the Union until the pending
strike was terminated and the pickets removed; and (i) by
announcing and granting unilaterally a wage increase on
November 1, 1965.
Respondent's answer put in issue all of the foregoing
allegations, though it offered no evidence concerning any
of the alleged 8(a)(1) conduct except for the raise to
maintenance department employees in January 1964, and
the interjection by Respondent of itself into union affairs
on April 20,1964.
A summary of other main events which are more
directly relevant to the refusal to bargain issues is set forth
in section D, 1, infra.
B. Interference, Restraint, and Coercion
Respondent offered no refutation of testimony of the
General Counsel's witnesses concerning the conduct
which is summarized below. We start with that which
preceded the first election:
During the month of June and at a time when there was
no company rule or restriction concerning the distribution
of literature, Respondent's supervisors ordered employees
to desist from passing out union literature on their own
time on the Company's parking lot.
In July, Supervisor Ken Merritt directed Supervisor
Curt Bramer in the hearing of employee Ray Herndon, Jr.,
to stop Herndon from discussing the Union with other
employees on his own time. On the following day Bramer
questioned Herndon concerning his union sentiments and
inquired whether Herndon thought it would win the
election. When Herndon expressed belief in the Union,
Bramer asked him not to go around irritating the
employees in the plant. Herndon informed Bramer he had
overheard the conversation with Merritt the day before,
and Bramer told Herndon to forget about it and to "take it
easy."
Glen Hough had a number of conversations concerning
the Union with Supervisor Merritt, but under Hough's
testimony they resulted from his own inquiries of Merritt
because Hough had never been a union member. On one
such occasion Merritt asked Hough how he felt about the
Union.
' The two final allegations are so closely related to the refusal-
to-bargain issues that they are henceforth grouped for
consideration with the 8 ( a)(5) allegations Indeed, the first is
claimed by the Union to constitute a refusal to bargain and the
second is alleged in the complaint as such
GENERAL ELECTRIC COMPANY
The following conduct occurred between the two
elections:
Supervisor Dalton Rogers questioned Ann Hart on
Hart's first day of work in August concerning whether
Hart ever worked in a plant where there was a union.
When Hart replied that she had not, Rogers informed her
she would probably be approached by the Union to join
and asked whether she would join the Union if it were to
come into the plant. Rogers discussed the Union with
other new employees in August, informing them of the
disadvantages of having a union in the plant and eliciting
their views concerning the Union. In a separate
conversation he also questioned Doris Lamb concerning
her union sentiments.
Assistant Personnel Manager Richard Boudreau
questioned Dorothy Manion during her employment
interview in August concerning whether she had ever been
a member of a union and whether she was for or against
unions. Manion replied she did not know because she had
never been a member of a union and asked if it made any
difference. Boudreau responded that it did not.
On October 9, Charles F. Rabbit was engaged in a long
conversation by Supervisor Ed Danford concerning
Rabbit's dissatisfaction with his wage rate and his job. As
the conversation ended, Danford asked Rabbit whether he
though the Union would do any good in the plant and
would get him the things he wanted.
Around October 22 Supervisor Steve Malcom (T.S.
Melvin) informed a group of employees that if the Union
should get into the plant a lot of customers would not like
the idea of having contracts with the Company because of
the danger of a work stoppage or a strike. Supervisor Don
Meyers told various employees that if the Union came in
the Company could easily lose a contract because a lot of
companies would not like to deal with a concern which was
likely to have labor problems. In one instance Meyers
informed a group of employees that "we can't get along
with a third party" and that he could not promise that
Clock and Timer (a customer) would be happy dealing with
an organized factory with three parties involved.
In October Supervisor William Cole questioned Ann
Hart concerning the fact that her name had appeared on a
"union paper" and asked whether she had been
threatened or harassed to have her name put on it.
The following incidents occurred after the second
election:
On November 4, Supervisor William Cole admonished
Betty Fletcher for interfering with the work of other
employees by talking with them. When Fletcher replied
that such talking as she did pertained to her job, Cole
stated he had reports that Fletcher was passing out
literature and had been heard on several occasions talking
with employees in the lunchroom about union matters.
Cole agreed, however, that what Fletcher did in the
lunchroom was her own business. Fletcher inquired how
Cole knew about the matters he was accusing her of since
he was away from the area much of the time, and Cole
replied that he knew what was going on at all times
whether he was there or not.
In February 1964, Supervisor James Collins questioned
Wayne Williams about talking to the girls in the inspection
area about the Company and the Union. Williams admitted
that he had done so many times "in a casual like way."
Collins stated that the girls had complained and wanted it
stopped. Williams replied that he knew the girls well
enough to know that if they wanted it stopped, they would
have come to him rather than to their supervisors. Collins
asked Williams to "hold it down to a minimum," but told
201
him he could talk about anything else he wanted to, "even
sex," and that if Williams had anything to say or do, he
should do it either on his own time during lunch or before
or after work.
On April 20, 1964, Supervisor Rolland Brunelle
informed three of his employees of a report of an
impending strike, that they could expect a picket line on
Wednesday morning, and that he and other supervisors
would be in the plant to see whether employees would
make an attempt to cross the picket line. Linda Greene
testified that Brunelle stated that if there were no violence
the employees were to cross the line and that if they did
not, they would be "evaluated" and he would not have to
take them back into his department. Greene inquired who
would do the evaluating and Brunelle replied that he
would. Brunelle also stated that even if they were not a
picket line, there might be a walkout and if the employees
were to walk out, it would be like saying they did not care
what happened and they could be suspended and then
evaluated. Greene testified that as she understood
Brunelle's statements the picketing or the walking out
would have a bearing on the evaluation and that what
Brunelle meant was that in reporting on their work, if he
felt they were not doing well, he would not have to take
them back.
Magnolna Boyd testified that Brunelle informed the
employees it was their duty to make the attempt to cross
the picket line and that otherwise they would lose their
jobs. On cross-examination, however, Boyd testified that
Brunelle's statement was that if they did not make an
attempt to go to work, they would be replaced
permanently.
Concluding Findings
Respondent's contentions regarding the foregoing
conduct run substantially as follows: Since the first
election was set aside because of the no-distribution
incident, a remedial order concerning it would be
meaningless for it has already been remedied. Moreover as
the bulk of the other conduct occurred before the two
elections (the second of which the Union won) and before
the certification, that also has been remedied and requires
at this late date no affirmative finding.
Certainly the long administrative delay here did much to
render stale the charges upon which the complaint was
ultimately based and the passage of time has done much to
tarnish the greater luster the charges might have
possessed were they timely considered. But staleness does
not equal mootness, and laches is still no bar to
governmental action in the public interest, though it is, of
course, a factor which may bear on the manner of
remedying the effects of unlawful conduct.
Moreover, the record does not support Respondent's
argument that its conduct was remedied or rendered moot
by the outcome of the second election and the issuance of
the certification. Though there was a single instance of
forbidding the distribution of union literature on the
parking lot, Respondent restrained within the plant, both
before and after the certification, an allied form of
solicitation on the employees' time. Interrogations
concerning union sentiments, views, and activities
occurred during the periods prior to each election, and
after the second election a supervisor conveyed the
impression of engaging in surveillance of union activities.
Finally, as late as April 1964, employees were warned that
engaging in a walkout or failing to cross a picket line were
matters which would be considered in evaluating
employees for continued employment.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Until now there has been no adjudication that any of
said conduct was unlawful and, of course , there has been
nothing which required Respondent to cease and desist
from such conduct or to take any affirmative remedial
action . It should also be noted that even compliance with
such Board order as may be entered herein would not
render moot the securing by the Board of an enforcement
order from a court of appeals. N.L.R.B. v. Mexta Cotton
Mills, Inc., 339 U.S. 563, cf. N.L.R.B. v. Pool
Manufacturing Co., 339 U.S. 577.
Respondent 's conduct as summarized above was of the
same type as that which has many times been found to
constitute interference , restraint , and coercion ,3 and I find
that by it Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1).
C. Discrimination
1. The failure to recall James Wetherington and William
Mitchell
James Wetherington, who was president of the local
union , was employed on the first shift (7 a m. to 3 p.m.) in
the plating department and had worked on various jobs in
that department. William Mitchell, a coworker with
Wetherington on the same shift, also worked on various
jobs in plating. At the time of the strike Wetherington was
working as a "blanking operator," described by
Supervisor Ken Merritt as the simplest job in the house,
and Mitchell was a "slurry operator," described by Merritt
as only slightly more complicated than blanking. Both
Wetherington and Mitchell participated in the full course
of the strike, which began on the evening of May 24.
Wetherington notified Respondent by wire that the
strike was being terminated as of 11 p.m. on June 3 and
that the striking employees would return to work on their
regular shifts. Respondent replied by wire from John
Keefe, director of relations, stating in part that, "Since
work schedules will have to be adjusted to accommodate
strikers, supervisors will notify employees promptly
starting tomorrow regarding their report in schedules."
Both Wetherington and Mitchell endeavored to return to
work on their regular shift at 7 a.m. on Friday morning,
June 4, but were informed that they would be notified
when they would be needed, and they were later notified to
return on Wednesday, June 9.
Merritt testified that there was a continuous operation in
the plating department which was operated prior to the
strike with four scheduled shifts, including a regular relief
shift (which rotated in relief of the other shifts on their "off
days" each week). Because of the shortage of men during
the strike Merritt operated with three shifts, so that when
the strike was ended there had to be a rescheduling back
to the four-shift system Merritt began accordingly on
Friday morning to reschedule the employees back as
quickly as he could fit them in. Actually the conversion to
four shifts began at once, for some of the relief shift
started Friday night (their Saturday) and some of them on
Sunday night, at which time they were relieving the third
shift.
It was stipulated that the first shift worked on Saturday
and Sunday and that all of the employees on the first shift
worked on those days with the exception of Mitchell and
Wetherington. It was also stipulated that the normal "off
days" of the first shift would have been June 7 and 8, and
4 However, I do not find coercive Merritt's interrogation of
Hough, for that resulted directly from Hough 's own questioning of
Merritt about the Union
4 Respondent was wholly free, of course, to retain Tucker and
the beginning of a new week would have been June 9.
Though other first-shift workers were put back to work at
the end of the strike, Merritt testified that they were
employees who manned the critical operations in the
department (in contrast to the simple jobs on which
Wetherington and Mitchell worked).
In the meantime Merritt hired two new employees
during the strike: Tucker, who worked on the first shift on
Mitchell's job, slurry; and Stanley, who worked on the
same shift on Wetherington's job, blanking. When the first
shift resumed operations on Wednesday after 2 off days,
Tucker and Stanley were retained on the shift, working as
extra help on a salvage operation and on other
miscellaneous jobs.
Questioned as to why he did not have all the employees
work on Saturday and Sunday (including Tucker, Stanley,
Wetherington, and Mitchell), Merritt explained that
Saturday and Sunday work was premium time and that he
did not want to carry extras on a premium day because it
cost time and a half. Thus Merritt explained further that if
he had put Wetherington and Mitchell back to work on
Saturday, then Stanley and Tucker would have been
extras and he would have had to assign them to start
training on critical operations at the premium rate.
Concluding Findings
Though Merritt was understandably faced with some
problems in rescheduling back to a four-shift operation,
the record showed plainly that there was no problem as
concerned the recalling of Wetherington and Mitchell to
their jobs on the first shift. For in recalling the relief shift
to take over the third shift, Merritt thereby reverted to his
regular prestrike shift schedule, which was received in
evidence and which showed that the "off days" of the third
shift were Saturday and Sunday. That action left
unaffected the schedule of the first shift, which was due to
work (and did work) on Saturday and Sunday before being
off on Monday and Tuesday. Furthermore the jobs of
Wetherington and Mitchell were being filled only by
temporary replacements, Tucker and Stanley, who were
permitted to work on the jobs of the former through the
remainder of the scheduled workweek.
Merritt's testimony concerning distinctions between
critical and noncritical operations in the department was
without relevance to the recall issue, for it was plain that
two new and untrained employees were retained to do the
simple, uncomplicated jobs to which Wetherington and
Mitchell were entitled upon their return from the strike.
Indeed, Merritt's testimony showed finally that his motive
in not reinstating Wetherington and Mitchell was in
substantial part that it would have involved the necessity
to pay them the premium rate of time and a half for
Saturday and Sunday work or the retention of Tucker and
Stanley as extra help, also at time and a half. But that was
plainly not a valid consideration under the circumstances
here, for Respondent could not lawfully delay the
reinstatement of Wetherington and Mitchell upon their
application since there was work available for them which
was being done by temporary replacements. And giving
full weight to Merritt's expressed desire to save money,
the only valid choice he could make was to lay off Tucker
and Stanley for the 2 premium rate days instead of
Wetherington and Mitchell.4
Stanley as trainees or as extra help or in any other capacity, but it
could not choose to retain them over Wetherington and Mitchell
in the jobs to which the latter were entitled upon returning from
the strike
GENERAL ELECTRIC COMPANY 203
I therefore conclude and find that by refusing to recall
or reinstate James Wetherington and William Mitchell
upon their application , unitl June 9, Respondent
discriminated against said employees because of their
strike activities and thereby engaged in unfair labor
practices within the meaning of Section 8 ( a)(3) and (1) of
the Act.
2. The layoff and denial of promotion to Mary Sherley
Mary Sherley, the financial secretary of the Union and a
member of its negotiating committee, was employed in
testing battery cells. She walked out on strike when it
began on the evening of May 24 and when she returned
after the strike she was given a disciplinary layoff for 3
days and a recommendation for her promotion was
withdrawn on the ground that she failed to turn off her
boards before leaving on strike, an omission which could
well have resulted in substantial damage to the batteries
which were being processed. As I conclude, as contended
by General Counsel and the Union, that this issue of the
case is controlled by N.L.R.B. v. Burnup and Sims, Inc.,
379 U.S. 21, the relevant facts may be briefly stated.
Understanding that a strike call was imminent , Sherley
left her work station for a brief interval (from 3 to 5
minutes) before 9:30 p.m. on the evening of May 24 to
check on the report. Learning that the strike "was on,"
she returned to her work station to turn off her boards but
found that Mary Baker, a coworker, had already turned
them off. Sherley then went out on strike. Baker and other
coworkers later turned the boards back on and completed
the processing of the batteries, none of which was
damaged.
I find no substantial conflict in the testimony of those
who were called to bear witness to the foregoing facts.
Sherley's testimony was fully corroborated by Mary
Baker, who impressed me as a wholly objective and
disinterested witness. ' The only other "eye" witness was
Joyce Slocum (two other coworkers, Flora Alli and Mary
Lewis, were not called), who testified that Baker turned off
the boards after Sherley left and that Sherley did not
return after that. Though I believe that Slocum testified
honestly, I believe that she did not see Sherley's final
return to her work station or that she was mistaken as to
the time when Baker turned off the boards. Furthermore
Respondent made no attempt to corroborate Slocum (by
calling Alli or Lewis), and Slocum's testimony is overborne
by the mutually corroborative testimony of Baker and
Sherley.
Though Respondent offered evidence concerning its
good-faith belief that Sherley walked out on strike before
Baker turned off the boards,6 such evidence does not,
under Burnup and Sims, supra, constitute a defense to an
allegation that the disciplinary action violated Section
8(a)(1), for, as the Court held, defeat of the Section 7 rights
by employer action does not necessarily depend on the
existence of an antiunion bias. The Court continued:
Over and again the Board has ruled that § 8(a)(1) is
violated if an employee is discharged for misconduct
arising out of a protected activity despite the
employer's good faith, when it is shown that the
misconduct never occurred. See, e.g., Mad-Continent
Petroleum Corp., 54 NLRB 912, 932-934; Standard
Oil Co., 91 NLRB 783, 790-791; Rubin Bros.
Footwear, Inc., 99 NLRB 610, 611. In sum, §8(a)(1) is
violated if it is shown that the discharged employee
was at the time engaged in a protected activity, that
the employer knew it was such, that the basis of the
discharge was an alleged act of misconduct in the
course of that activity, and that the employee was not,
in fact, guilty of that misconduct.
The Court upheld that rule as being in conformity with
the policy behind Section 8(a)(1).
I therefore conclude and find that by suspending Mary
Sherley and by withdrawing a promotion for which she was
recommended because of her participation in the strike,
Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed in Section 7
of the Act. I conclude and find, however, that the General
Counsel failed to establish by a preponderance of the
evidence that Respondent was motivated, in taking
disciplinary action, by Sherley's union membership or
activities or by "arti- union bias." Cf. Burnup and Sims,
Inc., supra.
The conclusions which I have reached above leave no
issue which requires a determination of the complaint
allegation that the strike was an unfair labor practice
strike. For there was no claim and no evidence that
permanent replacements were hired for Wetherington,
Mitchell, or Sherley, and all of them were reinstated to
their jobs. Thus except for the discrimination as found
above, Respondent met its obligation to the strikers,
regardless of whether the strike be viewed as an unfair
labor practice strike or as an economic strike.
D. Refusal to Bargain
1. Introduction
By way of introduction to the refusal-to-bargain issues it
will be helpful to note the following events and matters
which followed the certification of the Union on
January 21, 1964:
Negotiations began on February 13, 1964, and some 19
meetings were held until April 16, when the meetings were
broken off. Negotiations were briefly resumed on
October 14-15, 1964, and a contract was signed on
December 1, with an effective term from April 3, 1964, to
April 3,1965.
Negotiations for a new contract began on February 24,
1965, and some nine meetings were held through April 23,
when they were suspended and never renewed. In the
meantime certain decertification petitions were filed with
the Board in March and April. The first was dismissed by
the Regional Director on March 19 as untimely filed
because within the insulated period for negotiations and
the last was dismissed on July 27 because of the issuance
of the complaint on the unfair labor practice charges in
Case 12-CA-2920.
A strike was called on May 24, 1965, and was terminated
on June 3, 1965.
' Baker and Sherley were not "personal friends " Baker was
not, and had never been, a member of the Union, and her
testimony showed that her interest in the matter, if any, was in
attempting to set right a suspension which was based on the
assumption that Sherley had left her boards on when she walked
out
6 Even on the score of good-faith belief the evidence was not
wholly favorable to Respondent, for Supervisor Butler at first
received conflicting reports from the employees as well as from
Sherley herself Later, after further investigations disclosed
complete consistency in the statements of Baker and Sherley
concerning the turning off of the boards, Respondent did not
rescind the withdrawal of the promotion nor remedy the effects of
the 3-day layoff
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 1, 1965, Respondent filed a charge in Case
12-CB-832 claiming a violation of Section 8(b)(1)(A)
because of union demands since April 5, 1965, that
Respondent bargain with it as the bargaining agent though
it did not in fact represent a majority of the employees.
The Regional Director dismissed that charge on
October 12, and Respondent ' s appeal to the General
Counsel remained undecided as the hearing opened on
November 29.
Respondent was represented in the first (1964)
negotiations by Edward E. Sorenson , its relations manager
on the department level, John Keefe , local relations
manager, and Richard Boudreau , an assistant to Keefe,
with Sorenson acting as the chief spokeman . The Union
was represented in those negotiations by International
Representatives George W. Schultz, Jr., and John B.
Smith and by a committee prom the Local, including Local
President Wetherington . Schultz acted as chief
spokesman.
Keefe and Boudreau represented Respondent in the
second ( 1965 ) negotiations , with Keefe being the chief
spokesman , and the Union was represented by Smith and
the Local committee , with Smith acting as chief
spokesman.
Respondent kept "minutes" of the negotiations which
were received in evidence by stipulation as joint exhibits,
subject to an understanding that the parties were free to
offer testimony in amplification , explanation, and
correction . Smith and Schultz testified for the General
Counsel concerning certain facets of the negotiations and
Sorenson and Keefe testified for Respondent.
Respondent also issued and distributed periodically to
the employees as negotiations progressed certain
communications in the form of "Battery-Grams" and
"Negotiation Notes" in which it reported and commented
upon various aspects of the negotiations . Some of those,
relating to the taking of a strike vote around April 20-21,
1964 , were directly put in issue by an allegation that
Respondent improperly interjected itself into internal
union affairs.
Though the summary of the evidence which follows is
arranged under topical headings which conform in general
to the complaint allegations of unfair labor practices, some
aspects of the evidence are of relevance to more than one
issue. Also as previously stated (footnote 2, supra) the
present summary will include two items of conduct which
are claimed to be independently violative of Section
8(a)(1).
2. The evidence
a. The unilateral raise of the maintenance employees
The background to Respondent ' s action was set by
General Counsel 's witness Charles F. Rabbit, whose
testimony was as follows:
Rabbit was formerly employed at the University of
Florida (the largest employer in Gainesville) and he
returned to it after quitting Respondent on January 10,
1964. Rabbit and most of the other employees in the
mamaintenance department complained frequently to
their supervisors from June-July 1963 to January, that
their rates were too low, stated their intention of leaving if
they could get more money elsewhere, and several of them
quit before Rabbit did. As early as August or September
Rabbit and other fellow employees made a survey of area
wage rates (including those at the University) and
presented copies of their findings to Supervisor Curt
Bramer and Assistant Personnel Manager Richard
Boudreau . There were several discussions of the matter,
with the supervisors expressing dissatisfaction with
certain facets of the survey and representing that the
Company proposed to run another survey to check the
rates.
Rabbit testified further that during the course of his
conversation with Supervisor Danford on October 9 (see
section B , supra ), there was a discussion of the wage rates
in the area and when Rabbit stated his understanding of
the rates in effect at the University , Danford pulled out a
folder and informed Rabbit his figures were either $400 or
$600 too low. Although the employees inquired about the
progress of the Company's survey in weekly meetings
thereafter , they were informed only that the survey was
not completed and nothing was said about an impending
raise.
On January 17, 1964, Respondent wrote the Union that
it proposed to increase the wage rates of its maintenance
employees pursuant to an enclosed schedule, that it felt
the increases should be made effective immediately, and
that it proposed to make them effective on Monday,
January 20 . The basis for its action was stated in its letter
as follows:
It has come to our attention that the largest employer
in Gainesville has increased the rates of pay for its
maintenance employees . Since it has been our
established practice to pay rates which fairly reflect
community influences , it is our conclusion that such
changes should be reflected in our own wage
structure.
The Union answered by wire on January 18, expressing
agreement that wage increases were long overdue and
continuing as follows:
However , any increases should be negotiated with the
union and should cover all employees , not just a few.
Union agrees that when increases have been
negotiated they may be made effective January 20 or
earlier . Action by you to inaugurate non-negotiated,
rates can only be for purpose of disregarding or
impairing Union 's status and will bring prompt
appropriate action. We are ready to meet at any time
for negotiations . Please let us know when the meeting
is to be held.
The increases were actually put into effect on
January 20 , and were announced on that date by a Battery-
Gram to employees , which read as follows:
COMMUNITY ACTION REFLECTED:
Gainesville 's largest employer recently increased
its rates of pay for maintenance employees.
In line with our practice of fairly reflecting
community influences in rates we pay, the Battery
Products Section today adjusted its maintenance and
toolroom job and paid rates.
General Electric periodically looks at all jobs to see
that they bear a proper relationship to the community.
George Schultz testified that sometime during the
March-April negotiations , Boudreau made the statement
that the raise was given to the maintenance employees
because Gainesville 's largest employer had given an
increase to its employees as announced in a Gainesville
area newspaper in June 1963. However , the minutes for
the negotiation meeting on March 19 showed that
Sorenson denied that was so, informing Schultz, "You
mentioned the Maintenance Department inferring that
they received an increase because the University of
Florida received an increase . This is not a correct
GENERAL ELECTRIC COMPANY
assumption. The rate increase given to the maintenance
personnel was done on an individual basis."
b. Refusal to furnish information concerning layoff status
of employees
The Union's charge (November 19, 1963) and amended
charge (January 30, 1964), claimed in part discrimination
against some 16 employees who were laid off after the
second election (October 30, 1963). The Regional Director
dismissed those charges on February 11, 1964, on the
ground that there was insufficient evidence that the
employees had been discriminatorily terminated, and his
ruling was sustained by the General Counsel's office,
which upheld Respondent's position that all of the
employees (most of whom were serving their probationary
periods) were lawfully terminated.
In the meantime upon certification, the Union on
January 23, 1964, formally requested Respondent to
bargain, it repeated a request that Respondent furnish
certain information listed in seven items in an earlier letter
on November 1, 1963, and it requested further that
Respondent inform it the specific reason for the
termination or selection for layoff of the 16 employees who
were named in the charge and the reasons, if any, why the
Company would not consider any of said employees for
further employment. On February 4 Respondent wrote the
Union enclosing certain portions of the information but
stating that:
We do not consider the unfair labor practice charge
concerning 16 people a fair subject for negotiation.
The Regional Director's decision on this issue will
determine our future course of action.
At various times thereafter in February and March the
Union renewed its request for the information both in
writing and orally during the negotiations. Respondent's
position before the dismissal of the charge was the same as
stated in its letter of February 4, and thereafter it informed
the Union that the individuals in question were in a
probationary status at the time of layoff, had no
guaranteed recall rights, were no longer employees, and
that Respondent was not obligated to consult or bargain
with the Union concerning them.
c. Refusal to furnish information regarding the area wage
survey
At the 10th negotiation meeting on March 19, 1964, after
discussion of the Union's demand for "an across-the-board
raise,"7 the following colloquy occurred concerning the
Union's request for information:
SCHULTZ: We are very interested in how you obtain
your wage pattern in this area. We would like you to
submit to us who you surveyed, when you made your
survey, and what your conclusions were. Would you
give us a list of the companies in this area whom you
contacted?
SORENSON: We have gone over this with you in
detail several times in the past. We are willing to go
over it again with you, however, we would like to know
' Schultz answered Sorenson's question as to why the Union
felt existing wage rates should be adjusted as follows:
We feel that the employees are underpaid We feel that
they should have a raise when they sign a union contract
The employees expect a raise when the contract is
205
whether or not this would be adequate, or if we will
have to describe our policy to you again when Mr.
Smith returns from his trip.
Now, going back a number of years, a survey was
made which included several of the surrounding
businesses, the University -of Florida, Cabot
Corporation, Copeland Sausage and a few smaller
companies which employed less than 500 persons. As
I am sure you are aware, it is not our policy to pay the
highest or lowest salary to an area. In addition the
rates surveyed originally have been spot checked over
the years from time to time to see what changes were
occurring and what the trends were. We later
surveyed the wages of the people here before and
after they came with the Battery Product Section and
found that the rates they were receiving with General
Electric were considerably higher on the average to
what they had been receiving prior to their
employment here. We establish our rates through job
slotting, reviewing the experience and the ability to
spot the low and high jobs and then slot the remaining
jobs in comparison. To slot a job we consider formal
education , training , experience , working conditions,
physical application, mental application,
responsibility for safety of others, safety for an
individual's own job, all these elements are cranked
into our judgment. When we get a request such as you
have submitted for a job re-evaluation, we compare it
against all the other jobs.
SCHULTZ: Would you supply us with the names of
the companies originally surveyed?
SORENSON: We could probably give you this
information in a couple of days. It would be necessary
to contact the individual who performed the survey. If
you are intending to conduct a survey yourself, Mr.
Schultz, you are taking on a mammoth task. Formal
community surveys are no longer done. Your task will
become difficult because of the many, many different
job titles and conflictions.
SCHULTZ: Could we get this information this
afternoon? One of our reasons for meeting at the
Battery Product Section, Mr. Sorenson, instead of
downtown was because you said that information
such as we are requesting would be available in your
files.
SORENSON: We have no reluctance to give you what
you are asking just as soon as we can get out hands on
it.
At the next meeting on March 20 a discussion of the
Union's demand for a wage increase involved references
by Schultz to certain other employers in the area, with
Sorenson demurring that, "If you are going to run an
accurate survey, you have to use all of the labor market."
Sorenson continued that the Company had "looked into
the community sufficiently" to find that its rates were fair,
and that:
The sole and only criteria in establishing a rate
structure is that after management has looked into the
rates, evaluated the area, analyzed the jobs, then they
make a decision and our decision is that our rates are
signed It is normal when signing a contract to be given
an across the board increase.
Schultz repeated that statement in substance again on March 20
and at various times in later meetings
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fair. Mr. Schultz, I don't care what you come in with as
your survey. Our management judgment says our
rates are fair and right .... Now we will listen to you
and we will also be willing to listen and discuss and
study whatever you might submit but I wish to re-
emphasize that we have studied this area in
considerable detail and very carefully ....
[Emphasis supplied.]
At the 13th meeting on March 25, Schultz referred to the
fact that the Union had conducted part of its own survey,
and at the next meeting on April 7, he referred to the
Union's "partial survey" and compared some of the rates
with Respondent's top rates. Sorenson replied the
Company felt that the employees were properly paid and
that the Union had failed to establish "the average
relationship" which Sorenson had previously explained.
Thereupon the following colloquy ensued:
SCHULTZ: What other recourse do we have? We
have given you our findings and yet you continue to
say that in your judgment these people are properly
paid, You will use this argument regardless of what
we may propose.
SORENSON: Perhaps you are right, but for one
reason or another, you have chosen to overlook one of
our most reliable yardsticks of whether or not rates
are paid properly and that is the survey which
indicates how much people are earning with the
Battery Products Section as compared to what they
were earning before their employment. This
demonstrates very clearly the improvement people
receive when they accepted positions in this plant,
which is at least 25%.
SCHULTZ: We feel that is a completely invalid
measurement, it has nothing to do with what we are
discussing. However, we would like to ask you to
make this information available to us so we can
discuss it intelligently.
SORENSON: No, we will not provide you with this
information, Mr. Schultz. I have explained to you it
shows about a 25% increase and I see no reason to
provide you with each individual case. You, of course,
have other ways of collecting the information such as
asking people themselves.
Schultz testified that the foregoing minutes were
deficient in that they omitted any reference to his attempt
to submit to Sorenson a copy of the Union's survey and
omitted Sorenson's statement, in refusing to look at it, that
the Company felt its rates were fair for the community and
that it was not interested in any survey conducted by
anyone except itself. (Cf. the quotation from Sorenson's
statement at the meeting of March 20, supra, and the
further quotation from his statements at the
October 14-15 meeting, infra.)
The minutes for the meeting of April 16 showed that
during a discussion of wage rates Schultz again made
references to certain community rates. Keefe replied the
Company had considered everything that Schultz had said
and saw nothing which indicated that a wage increase was
in order and that, "We are paying what is proper for our
work in this community. Figures tell us that our rates for
women with the particular skill we demand are well above
the community average."
On inquiry from Schultz as to what concerns were
included in the Company's survey Keefe replied, "You can
take any company in the area-the county, from where we
draw people." Answering an inquiry as to whether Sperry
Rand and the University of Florida were included, Keefe
replied, "They are enclosed in the area and we have to
compete with them for our employees. In our surveys, we
attempt to include all substantial employers with more
than 25 people ......
At the meeting on October 14-15, Schultz inquired
whether the Company would be willing to accept and use
as a basis for wage increases "a wage survey made by us
or a mutually agreed upon survey." The following colloquy
occurred.
SORENSON: As a matter of courtesy, we would
certainly be willing to look at whatever you might
present, but we would not in any case use it as a basis
for a wage increase. This would be like buying a "pig
in a poke." We do not have any confidence in a survey
like this unless we produce it ourselves. As I explained
to you last spring there are innumerable criteria that
go in to the evaluation of a job and therefore we would
have to use our own information and experience.
[Emphasis supplied.]
SCHULTZ: Would you give us an opportunity to look
at the survey you took?
SORENSON Yes, certainly. It is just simple
numbers that I told you about yesterday.
SCHULTZ: I don't mean the before and after survey.
I mean the community survey that you took. I would
like to know who did it, when they did it, what jobs
were considered and where? What I am asking is, do
you base your whole wage system on an after the fact
survey of wage comparisons?
SORENSON: Certainly not. As I pointed out to you
last Spring, we ran a community survey here back in
about 1956. We made an effort to keep this updated
however over the period of years it became useless
and we discarded it. However, we are still continuing
to spot check area rates pertaining to our key jobs.
SCHULTZ: Did your spot checking have any effect
when you gave the maintenance men an increase last
January?
SORENSON: Yes, it had some influence on the
adjustment.
Schultz testified that the foregoing minutes were
deficient in that they did not show that he again
endeavored to present a copy of the Union's survey and
asked whether the Company would be willing to look at it
and be guided by it. Though Sorenson took the survey, he
immediately handed it back to Schultz, stating, "Mr.
Schultz, do you remember what I said last spring? I wasn't
interested in any survey conducted by anyone but General
Electric."
Sorenson and Keefe acknowledged that Schultz
presented a copy of the Union's survey during the
negotiations but testified that they recognized it at once as
something with which they were familiar. Keefe testified
that it was a copy of a survey made by the Gainesville
Chamber of Commerce, that he had a copy of it during the
negotiations, and that Sorenson informed Schultz the
Company was aware of that survey.
d. Respondent 's interjection of itself into internal union
affairs
The record contains the following series of
communications from Respondent to the employees and a
GENERAL ELECTRIC COMPANY
letter to the Union concerning the possibility of the taking
of a strike vote:"
April 17 Negotiation Notes
April 20 Battery-Gram
April 20 Letter from General Manager Hart
April 20 Letter from Keefe to Local Union
April 21 Negotiation Notes
April 21 Negotiation Notes
The tenor of the communications to the employees was
to the effect that the threat of a strike would not alter the
Company's position in the bargaining negotiations but
might result in less work at the plant and possibly the loss
of jobs through the action of customers in carrying their
requirements elsewhere and that Respondent planned to
keep the plant open and that work would be waiting for
such employees as exercised their lawful right to cross the
picket line. Keefe's letter to the Union, addressed to
Wetherington as president of the Local, offered the Union
an opportunity to take any strike vote on company
property on company time by secret ballot and under
supervision that would be neutral and acceptable to the
Union. Keefe proposed, however, that in order to insure
that the results of the voting would be truly representative
of all employees rather than a handful of persons, the
voting should be set up in a manner which would enable all
hourly employees to vote, offer the opportunity to vote by
secret ballot, give time to properly and calmly weigh the
issues, and to provide proper safeguards for determining
an accurate result after the ballots were counted by
neutral observers.
One of the negotiation notes on April 21 referred to
Wetherington's receipt of that invitation to have the strike
vote conducted in the plant, with all hourly employees
participating, and it continued:
The Company has not received any indication of his
desire to explore this matter further. Accordingly, it
may be assumed that the decision may be made by
those few who attend a closed meeting tonight. It is
possible that this group may not be representative of
the majority of the employees and may nevertheless
vote strike.
e. The reclassification of Glen Hough
On May 18, 1964, Glen Hough was reclassified from
"braze and weld" to "precision welding" and received a
28-cent-per-hour wage increase Hough testified that a
month earlier he complained to Supervisor Bill Cole that
his job rate was too low for his skilled work and that Cole
agreed to take it up with Personnel Manager Keefe. On
May 19, Hough was called into Keefe's office and was
informed by Keefe and Cole that they had checked into the
type of welding he was doing, had compared it with that
done in the maintenance group as well as with that done by
maintenance groups in other plants, had found that
Hough's classification was too low, and that he was being
changed from braze and weld to precision welding, with an
increase of 28 cents an hour. Although at first Keefe's
duties remained substantially the same, he later found that
he was required to build the fixtures he used in welding.
" Though considerable testimony was offered on both sides
concerning a claimed lack of basis for Respondent's belief that a
strike vote was imminent, the point is collateral to the issue
whether Respondent improperly interjected itself into union
affairs I find however, on Keefe's credited testimony,
corroborated by Boudreau who was listening in on an extension
207
Keefe's testimony was to substantially the same effect.
He testified that he and Cole decided that Hough's
building of his own fixtures would warrant a higher
classification and that they changed it accordingly. Keefe
also testified (and Wetherington did not deny) that he
discussed the reclassification with Wetherington, as
president of the Local union, who indicated satisfaction
with the change, which was effected in a manner agreed to
by the Union during the negotiations.
On June 24, however, Wetherington wrote Keefe
assigning the Glen Hough incident as illustrative of the
Union's claim that the Company was unilaterally making
changes without discussing them with the Union. The
letter sought a joint reevaluation of jobs and classifications
and stated that the Union insisted it be given an
opportunity to discuss any proposed reevaluation in
advance of company action. Boudreau answered on
September 9, stating that, "As you are aware, since that
date there have been numerous discussions of the topics
contained therein and we expect that you are fully
cognizant of the Company's position."
Finally the minutes of the negotiation meeting on
October 14-15 contained the following reference to the
matter:
At this time, Mr. Schultz brought up the change of
classification on Glen Hough's job rate. It was pointed
out by Company representatives that this was not
negotiating with an employee but was a case wherein
requirements in the employee's job had
changed-that something had been added to the job
making a reevaluation and alteration necessary.
f. Respondent's "inflexible position" on wage increases
Relevant background to the present subject is the
evidence concerning the wage increase to maintenance
employees as given in January 1964 (section a, supra), and
concerning Respondent's refusal to furnish information
concerning its area wage survey (section c, supra). Also
relevant is Respondent's announcement to its employees
of a wage increase as of August 26, 1963, and the
contemporaneous announcement of further increase to be
awarded on April 5, 1965, which in material part was as
follows.
This is the first of two pay increases to be made
available to local General Electric employees in a
wage and benefit package which also includes some
20 improvements in vacation, insurance and pensions
The second pay increase, also in the magnitude of five
cents or more per hour, will be awarded April 5, 1965,
according to Mr. Hart.
The local announcement is in line with similar
announcements being made in other non-union
General Electric plants throughout the nation and to
proposals being made by the company this week or
when otherwise appropriate to some 100 unions
currently in negotiations ....
Mr. Hart said, in commenting on the improvements,
that General Electric researches and studies the
telephone, that Schultz informed Keefe on or about April 17 that
he intended to recommend a strike vote at the union meeting
which was scheduled for the 21st Furthermore Wetherington
testified that Keefe informed him that Schultz was the source of
Keefe's information that a strike vote was to be taken
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
needs of employees on a year-round basis. He
described the current improvement program as a
good balance between these needs and General
Electric's necessity to meet its competitive challenge
Respondent actually put the second increase into effect
as of April 5, 1965, under circumstances adverted to
below.
What is chiefly in issue on the wage issue is whether,
viewed against the above background, Respondent
maintained during the course of the 1964 and 1965
negotiations an inflexible position that it would grant no
wage increase. The record showed that on this issue there
was some conflict in the testimony of negotiators Schultz
and Smith on the one side, and Sorenson and Keefe on the
other.
The basic positions of the parties on the wage issue were
substantially as shown by the evidence summarized in
section c, supra. As there reflected Respondent explained
to the Union the basis of its determination that the existing
wage rates were fair, and Keefe and Sorenson testified
further about the point at the hearing. Keefe testified it
was part of his job to maintain information on the wage
patterns and wage levels in the area, that he did so by
constant review of the interrelationships of the jobs within
the plant and that, "We attempt to keep our finger on the
community with spotchecks, so we know how other
employers are progressing with their wages." Among the
factors the Company takes into consideration, Keefe
added, were such things as the wage survey made by the
Gainesville Chamber of Commerce, a copy of which he
had in his possession during the negotiations and which he
testified was the same survey which Schultz handed in and
which the Company was aware of.
Sorenson's position involved responsibility for plants
which were unionized and which had union contracts, and
it included all facets of union relations. He was first
assigned to conduct negotiations at Gainesville around the
first of 1964. He testified that he made preliminary
consultations concerning conditions and wages at the
plant and did spot checks of a number of concerns but did
not attempt a broad community survey, which would have
involved going into other plants with job descriptions and
making on the spot comparisons of work against work.
Sorenson testified that Respondent made no wage
proposal as such during the negotiations but that it
reviewed exhaustively with the Union the propriety of
existing rates and, considering them to be appropriately
current, determined that no increase was indicated.
We turn now to material portions of the negotiation
minutes other than those summarized in section c, supra,
and to the testimony of the witnesses relating thereto.
The minutes for the meeting of April 7 showed that after
discussion of Schultz' comparison of community wage
rates with Respondent's rates the following colloquy
occurred:
SCHULTZ: If you will not give these people an
increase now, would you be willing to negotiate an
increase which would become effective in either 6
months or a year from now?
SORENSON: No I don't believe we would Mr.
Schultz. This type of negotiation would come under
another contract assuming that we do have the
opportunity to negotiate again.
Schultz testified in amplification and correction of the
minutes of that meeting that he offered to sign an 18-
month contract if the Company would incorporate the 1965
increase and that Sorenson rejected the offer. Schultz
testified further that the minutes omitted a statement
by Keefe charging that Schultz was simply attempting to
fulfill a promise he made during the organizing campaign
and that Keefe wanted the employees to understand that a
wage increase came from the Company and not the Union.
Keefe stated that if the Company felt it should give a wage
increase, it would do so, but that if it did not feel it should
give one, it would not do so.
In the meeting of April 16 Schultz inquired whether the
Company would consider an 18-month contract and Keefe
replied he would probably consider it favorably, but asked
what the advantage would be to the Union. Schultz
responded, "We could assume the increase scheduled for
next April would be negotiated in the Agreement," and the
colloquy continued as follows:
KEEFE: We have to give a little thought to that
because now you are talking about an 18 month
contract with a wage increase. I would much prefer a
short contract to a long one. There would be no
incentive for the Local to bargain upon termination
since a wage increase would be granted just six
months prior to the termination of the contract.
SCHULTZ: Not necessarily. You could give a wage
increase now or in the ensuing 6 months.
KEEFE: Are you willing to sign a three year
contract?
SCHULTZ: No.
KEEFE: But you are asking us to sign an 18 month
contract with a wage increase thus removing the
incentive to settle the next time we negotiate.
SCHULTZ: With an extended contract, what would
you be willing to do?
KEEFE: I am not interested in an extended contract.
It is the wage increase that I object to.
Schultz testified in amplification of the foregoing that
when Keefe asked about a 3-year contract, he inquired
when the wage increase would come and Keefe replied
there would be none.
The negotiations ended in impasse at that meeting, with
the only "open" issues being wages, arbitration, and
seniority.
Upon resumption on October 14, disoussion of the wage
issue began with Schultz' reference to the fact that the
employees had been told in August 1963 that they would
receive an increase in April (1965). Sorenson replied that
as he had informed Schultz he did not think it was a good
idea to tell employees a year and a half ahead of an
intended increase because the increase might well be
more than was anticipated, that the 1963 promise went out
without Sorenson's knowledge, and that it was "in error."
Schultz proposed that a contract be signed for 18 months,
with a current increase, and with an additional increase to
occur sometime during the term. Following discussion,
Sorenson replied, "We will consider an 18 month contract,
but no wage increase is indicated at the present time."
Conflicting testimony by Schultz and Sorenson raised
an issue as to whether Sorenson refused to agree to an 18-
month contract with an increase in April. Sorenson
testified that all of Schultz' requests for a term of 18
months (or longer) were predicated on the granting of an
immediate increase and that the Union at no time offered
to accept an 18-month contract which would provide for no
increase until April. The negotiation minutes plainly
showed that Schultz phrased his requests as Sorenson
testified, and I therefore credit the latter's testimony.
As for the contemplated April increase, Sorenson
testified the Company specified that it could not and
would not say there would be a specific amount because,
GENERAL ELECTRIC COMPANY
"since we were negotiating , it would be a negotiated
amount if any," and that, "We agreed to discuss an 18
month contract and then negotiate the possibility of an
increase in April. This was rejected."
The October meetings ended without agreement, but
shortly before December 1, Smith talked privately with
Sorenson, informing him that it was Smith's insistence the
agreement be signed and that he wanted to make it
retroactive so it would terminate before April5. Smith
testified he informed Sorenson the reason was that the
Company had repeatedly stated its intention of putting the
April 5 increase into effect as promised to the employees
and that it would afford an opportunity to conduct
negotiations before April. Smith also testified that at no
time did the Company ever agree to sign any contract
which would contain a provision for a 5-cent increase in
April 1965.
Sorenson's testimony on the latter point has been set
forth above; it is corroborated by the negotiation minutes.
He testified that Smith inquired whether the Company's
original proposal was still open and in effect and that he
assured Smith the proposal had not been withdrawn. He
admitted that Smith referred to a contract term to run
from April 3 to April 3, but testified that Smith assigned no
reason.
The minutes for the meeting of December 1 are silent on
the point. Schultz inquired whether the Company was
willing to sign the agreement as written, to run from April
to April, the Company agreed, and the contract was
signed. However, on Sorenson's inquiry concerning the
Union' s intentions regarding the charges, Schultz declined
to promise that they would be withdrawn.
On February 19, 1965, the Union requested that
negotiations be opened for a new contract. Though
meetings were held on February 24 and March 25, the first
reference in the minutes to the Union's wage demands was
the following brief colloquy at the end of the meeting on
March 30.
SMITH: Now then, we have asked for a 7-1/2
percent increase.
KEEFE: I will have something for you tomorrow.
On the following day the meeting began with Keefe
tendering a rate schedule reflecting proposed increases in
various classifications. Wetherington commented "I see
what you have here is 5 cents hour or 2-1/2%," and Smith
in turn made the following comment:
This, of course, is in line with what is being done at
the national level. We feel that it is adequate for them
because their pay rates to begin with are higher
whereas it is not adequate for us and we therefore feel
justified in having more money. I am telling you now
that we don't feel that this is sufficient since we have
been waiting for over a year for a general increase.
Smith testified that the Union's request for a 7-1/2-
percent increase was discussed back and forth, with Keefe
contending that Respondent's wages were higher than the
average of community wages. Smith proposed that a joint
wage survey be made to show that the Union's wage
demand was not out of line, but Keefe rejected the
request, stating the Company had its own way of making
surveys and of determining the wages in the surrounding
area.
At the meeting on April 1 Smith asked the Company to
reconsider its offer of 2.1/2 percent or 5 cents. The
minutes of the meeting of April 2 contain no reference to
the wage issue.
On April 6, 1965, Respondent issued a Battery-Gram to
its employees, which informed them in part as follows:
209
We are putting into effect a wage increase for all non-
exempt employees. This increase was announced on a
Company-wide basis and here in Gainesville in
August, 1963. [Emphasis supplied.]
Since some of our employees are repiesented by a
union , this increase was presented to the Union last
Wednesday. At the last negotiation session on
April 2nd the Union neither accepted it nor rejected
it. Because the contract has lapsed and a new one has
not been signed, the Company is putting the increase
into effect without prejudice to the Union.
The amount of the increase was stated to be 2-1/2,
percent or 5 cents an hour, whichever was greater, and the
announcement stated further that, "Many other benefits
will be adjusted upward-automatically-with the
April5th raise in pay." Examples of such benefits were
listed as increases in life insurance coverage, sickness and
accident benefits, vacation pay, and holidays worked.
At the April 8 meeting Smith stated in reference to
Respondent's wage offer that the Union did not agree to it
nor did it agree with the Company's action in putting it into
effect unilaterally. Smith also announced that the Union
was making a new offer on wages , stating that, "We asked
you for a 7-1/2% increase. You offered 2.5 or 5 cents. Now,
we would like to counter with a request of 5.5%. We feel
that this is a justifiable compromise." The meeting
adjourned at that point without response by Keefe to the
counteroffer.
There was no reference to the wage issue at the April 15
and 23 meetings, much of the discussion being concerned
with the filing of decertification petition and with
Respondent's demand for a defeasance clause (see section
g, infra). Though the minutes for the meeting of April 15
purported to quote Smith as acknowledging that the
Company made the offer of the wage increase in good
faith, Smith as a witness denied emphatically the
correctness of that minute, denied the offer was made in
good faith, and testified that he reiterated many times
during the negotiations that the Company made no offer to
the Union but made the offer to the employees. His
testimony was not denied.
Contract negotiations ended with the April 23 meeting.
g. Insistence on a defeasance clause
In mid-March 1965, a decertification movement was
originated by certain employees, followed by the filing
with the Board of informal and formal petitions for
decertification, supported by the signatures of some 140-
odd employees. The Regional Director dismissed the
petitions on March 19 as untimely filed because within the
insulated period for bargaining. Copies of the
correspondence and of the petitions were received by
Respondent.
On March 31 Keefe wrote Smith referring to the
foregoing developments, to information that the employees
intended to refile a petition after April 3 (the contract
expiration date), and to the fact that the number of
employees on checkoff constituted less than 10 percent of
those in the bargaining unit. Keefe proposed in the light of
those facts (1) that in any contract which might be signed
there be included specific language reflecting the
agreement between the parties that such contract would
not be a bar to any representation petition and that neither
party would raise the existence of the contract as a bar to a
representation election, and (2) that such contract would
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by its terms automatically terminate and become null and
void in the event that the Board, following a representation
election, should find that the Union did not represent a
majority of the employees in the unit.
There was discussion of the Company's proposal in all
subsequent negotiation meetings. Respondent's position
was that the decertification petition raised a question of
the Union's majority and that it would sign a contract only
if the Union accepted the defeasance clause which it
proposed. On April 15, for example, Keefe stated that it
"would be next to impossible" for him to sign a contract
without the clause in question, and on April 23 Keefe
rejected Smith's request that Respondent withdraw its
"no bar" demand, stating that he could not do so as long as
there was a serious doubt as to whether the Union
represented a majority of the employees.
There were no negotiation meetings after April 23.
However, Boudreau testified to a private meeting with
Wetherington at Keefe's home shortly before the end of
the strike in which Keefe repeated the Company's position
on the no-bar clause.
The April 23 meeting adjourned with an understanding
that a further meeting would be held on April 30. On the
latter date Keefe wrote Smith suggesting that in view of
the decertification petition further negotiations be
postponed until determination by the Board of the
representation status of the Union. Smith replied on
May 4, objecting to the postponement and stating that
until the Union was officially decertified, his responsibility
was to continue the negotiations.
h. The strike ; the subsequent refusals to bargain
The strike began on May 24. On May 25 Wetherington
wired Keefe that the Union demanded a meeting for the
purpose of negotiation . Keefe replied by wire on June 1 as
follows:
When you call off the strike and pickets are removed
we will give consideration to your request for a
meeting.
On June 3 Wetherington notified Keefe the strike was
being discontinued and requested a meeting for the
purpose of discussing "a number of grievances and
problems." Though a meeting was held on June 7, no
contract negotiations were engaged in.
On July 27 the Regional Director dismissed the last
decertification petition because of the issuance of the
unfair labor practice complaint on the Union 's charge in
Case 12-CA-2920 . On August 16 Smith wrote Keefe
referring to that dismissal and requesting a resumption of
negotiations . Keefe replied on August 18 that despite the
dismissal of the decertification petition , "We nevertheless
entertain a good -faith doubt as to the Union ' s majority
status of the employees," and he suggested a
postponement of negotiations pending resolution of the
issues raised by the Company in answer to the Union's
charges. On September 7 Keefe repeated that statement
of the Company' s position in answer to Smith's further
inquiry of September 1.
On November 1 Respondent put into effect a wage
increase with the following announcement:
Recent upward trends and community wages have
caused us to look again at our Battery Business
Section wage structure . Most of the evidence leads us
to believe that increases would be appropriate and
right at this time.
In keeping with our continued effort to respond to
community wage trends, we are changing your grade
and pay as of November 1, 1965.
3. Concluding findings
The findings on the foregoing evidence will be arranged
in a somewhat different order than the topical headings
under section 2, supra, since on some issues the same
body of evidence is of common relevance while on others
the particular issue can be resolved on the basis of the
evidence confined to a single heading. We begin with two
of the separate items on which the evidence did not
establish the complaint allegations.
a. Refusal to furnish information concerning layoff status
of employees
Respondent ' s position prior to the dismissal of the
Union's charge was that , with the charge pending, the
matter was not a fair subject for negotiation since in effect
(as Sorenson testified ) there was " litigation " in process
concerning the employees in question . Indeed , the Union
sought information which required disclosure of evidence
which constituted Respondent 's defenses to a complaint,
if one were issued by the General Counsel.
But neither the Act nor the Board Rules and
Regulations provide for prehearing disclosures , and in the
present case if the General Counsel proceeded on the
Union 's charge, the upholding of the Union' s request for
information would require the disclosure of evidence
concerning Respondent ' s defenses which the General
Counsel himself would have been legally unable to procure
except as adduced at the hearing on his complaint . In that
situation the Union would obviously have no better
standing than the General Counsel to require disclosure of
Respondent 's evidence . As I therefore conclude and find
that Respondent was justified in withholding the
information prior to dismissal of the Union 's charge on
February 11, I turn to the later period.
The record showed that the Regional Director and the
General Counsel upheld Respondent ' s position that the
employees in question were lawfully terminated and that
they had occupied a probationary status without recall
rights. Answering the Union's later requests for the
information, Respondent informed it that the employees in
question were no longer employees and that they had no
guaranteed recall rights because each of them was on a
probationary status at the time of layoff. I conclude and
find that Respondent thereby supplied all information to
which the Union was entitled and that it was under no
further obligation to consult or bargain with the Union
concerning the employees n question.
b. The unilateral reclassification of Glen Hough
I am unable to find that the reclassification of Glen
Hough constituted a violation of Section 8(a)(5) of the Act.
If any unilateral action, no matter how insignificant,
qualifies per se as a refusal to bargain, then it might be that
a technical violation could be found here on the fact that
Keefe did not notify Wetherington before effecting the
actual reclassification. However, Wetherington was
notified immediately afterwards and indicated his
acquiescence in the action. Under the circumstances
Wetherington's letter written some 5 weeks later can be
viewed only as representing possible afterthoughts
concerning the use of the incident as a springboard to the
GENERAL ELECTRIC COMPANY 211
Union's request for a joint reevaluation of jobs and
classifications generally.
Respondent ' s action was obviously of less substance
than the conduct which the Board had before it in
Fitzgerald Mills Corporation, 133 NLRB 877, 882, where
in finding certain unilateral acts to be violative of the Act,
it relied in part on the fact that the wages and duties of a
forklift driver were changed sometime before the Union
was notified of the change . On enforcement proceedings,
313 F.2d 260 (C.A. 2), the court found that that violation, if
any, was not "substantial ," id. at 267, and stated further
that even assuming that it were a violation , it added so
little that it must be dismissed as insignificant . The same
conclusion is plainly required here where the evidence
presented a case of lesser substance.
c. The unilateral raise of the maintenance employees
The evidence establishes that Respondent announced
and put into immediate effect the raise to the maintenance
employees at a time when its objections to the election
were pending undetermined and when there was thus a
possibility that a further election would be ordered. Such a
situation is one which the Board has considered both
recently, as in Ambox, Incorporated, 146 NLRB 1520,
1521, and Northwest Engineering Company, 148 NLRB
1136, 1145, and Gal Tex Hotel Corporation, 154 NLRB
338, in earlier decisions , as in Paramount Textile
Machinery Co., 97 NLRB 691.
In Paramount the Board concluded that an increase so
timed was calculated to affect the employees ' decision in a
second election if one were held. In Ambox the Board
found that the announcement of benefits was similarly
calculated to influence the employees' choice of a
bargaining representative in the event of a second
election. In Northwest and in Gal Tex , where the
objections were filed by the union , the Board held that the
increases were granted as a reward to employees for
having rejected the union in the election and as a further
inducement to employees to vote against the union in the
event a second election were directed.
In the present case Respondent had known for months
both that the maintenance employees were dissatisfied
with their wage rates and that the University 's rates were
higher. Yet it put off the employees ' repeated complaints
with the explanation that it was checking on the
employees ' survey by making one of its own , and then,
having lost the second election and pending a ruling on its
objections , it put the increase into effect suddenly, without
conferring either with the complaining employees or with
the Union . Furthermore , Respondent based its action on
the specious ground that the University had granted a
"recent " increase though it had known for months that the
University 's rates exceeded its own. Further reflection was
cast on the bona fides of Respondent ' s claim by
Sorenson 's denial during subsequent negotiations that the
increase was given because the employees at the
University had received one and his unsupported assertion
that the increase was made on an individual basis.
Though the loss of personnel which Respondent relies
on was obviously a factor of consequence , it was a
condition which had been chronic for some time and one
which had not seemed of great concern before the
election. Certainly Respondent made no showing that the
situation was of such exigency as to require immediate
action, bypassing both the complaining employees and the
Union and ignoring the Union ' s request to negotiate
concerning the matter.
Furthermore , Respondent ' s unilateral action is also to
be viewed in the light of its earlier conduct as found in
section B , supra, as well as its subsequent conduct after it
entered into negotiations with the Union . So viewed on the
entire record , I conclude and find that Respondent's
action had dual purposes : ( 1) it was calculated to influence
the choice of a bargaining representative in the event the
Regional Director should order a new election , and (2) it
was calculated to bypass , undercut , and undermine the
Union ' s status as the statutory representative of the
employees in the event a certification was issued . By such
conduct Respondent interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
by Section 7 of the Act.
I reject on two bases , however, the Union ' s further
contention that Respondent ' s action constituted a
violation of Section 8(a)(5). In the first place the General
Counsel confined his complaint to charging a violation of
Section 8(a)(1). Acceptance of the Union's argument would
thus amount to permitting a charging party at will to
amend (and thus to control ) the General Counsel's
complaint . But under Section 3 (d) the General Counsel has
sole authority to determine on what charges he will
proceed to litigation . See section i, infra, for a further
discussion of the present point.
In the second place Board precedent precludes a
finding of a refusal to bargain during the period when the
Union 's majority status was unresolved . Thus in Harbor
Chevrolet Company, 93 NLRB 1326, the Board excluded
from a refusal-to-bargain finding the period of time prior to
its affirmance of a Regional Director ' s report which
overruled the company 's objection to the conduct of the
election and certified the union . As research discloses no
.reversal of that decision, I consider it to embody current
Board law and to be dispositive of the Union 's claim on its
merits.
d. Respondent 's interjection of itself into internal union
affairs
Both General Counsel and Union rely on Wooster
Division of Borg-Warner Corporation , 113 NLRB 1288,
1293, et seq ., a case which I find dispositive of the present
issue. There the Board had under consideration a strike-
ballot proposal under which the Union would be prohibited
from calling a strike unless its action in effect had the
approval of a majority of both union and nonunion
members. The Board pointed out that it was customary
under the practice of collective bargaining to leave up to
the majority representative decisions as to the demands to
be made upon the employer and the sanctions to be
resorted to in support of the demands, leaving to internal
procedures of the union the extent to which its decisions
were to be ratified by its membership or by employees
generally. The Board held that while the clause before it
incidentally limited the individual's right to strike, it was
primarily concerned with the mechanics of testing the
union's power to call a strike , a purely internal matter
unrelated to any condition of employment. The Board
continued:
Indeed , the strike -ballot clause is in essence a
procedure designed to force all employees in the unit,
as individuals , to pass upon the Respondent's last
offer. In our opinion, the requirement that employees
be given an opportunity to vote on the Respondent's
last offer ... is simply an attempt to resolve economic
differences at the bargaining table between an
employer and the statutory agent by dealing with the
295-269 0-69-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees as individuals. In principle, there is little,
if any, difference between an employer taking
individual proposals directly to the employees and an
employer requiring that the bargaining representative
obtain approval or disapproval of any economic
proposal as a condition precedent to the
representative's exercise of statutory powers. Either
situation is in derogation of the status of the statutory
representative and thus violates the exclusive
representation concept embodied in the Act.
The Board concluded that an employer could not thus
bypass or undercut the bargaining representative by
attempting to deal directly or indirectly with the
employees.
The Supreme Court (356 U.S. 342, 349-350) upheld the
Board's decision, reversing the Court of Appeals which
had denied enforcement (236 F.2d 898). The Court viewed
the strike-ballot clause as relating only to the procedure to
be followed by the employees among themselves before
their representative might call a strike or refuse a final
offer and as dealing only with relations between the
employees and their union. Thus, the Court held the
clause substantially modified the collective-bargaining
system provided for in the statute by weakening the
independence of the representative chosen by the
employees, and concluded that:
It enables the employer, in effect, to deal with its
employees rather than with their statutory
representative.
There is one obvious factual distinction between the
present case and Borg-Warner, and it is one which
requires that different conclusions to be reached on the
dual allegations that Respondent's conduct breached
Section 8(a)(1) independently as well as Section 8(a)(5).
Thus contrary to Borg-Warner, Respondent here did not
advance its "invitation" as a bargaining proposal or insist
upon it as a condition to reaching a contract. Its conduct
cannot, therefore, be found to constitute a refusal to
bargain.
At the same time, Respondent did not stop with a mere
suggestion to the Union that all employees be permitted to
vote on the issue whether to accept Respondent's proposal
or, in the alternative, to strike, but it carried the matter
directly to the employees, informed them of the suggestion
to the Union, and urgently sought their support on the
issue, thereby intervening directly in the Union's internal
affairs. I therefore conclude and find on the authority of
Borg-Warner that by so intervening in the Union's affairs
and attempting to undercut the Union as the statutory
bargaining representative of the employees, Respondent
interfered with the employees' right, guaranteed by
Section 7, to bargain collectively through the
representative of their choice. Cf. General Electric
Company, 150 NLRB 192, 194-195, footnote 15.
survey which the maintenance employees presented to the
Company.
In subsequent negotiation meetings Respondent made
further references to surveys it had made of wages paid by
other employers in the area and to the fact that it spot
checked the rates from time to time, as Sorenson stated on
March 19, "to see what changes were occurring and what
the trends were." That information so obtained formed
part of the basis upon which Respondent established its
wage structure and determined that its rates were fair was
shown by the negotiation minutes for the meetings of
March 20 and April 16. Indeed, it also influenced the
adjustment of the maintenance department rates in
January, as Sorenson conceded in the October 14-15
meetings.
Respondent promised initially to comply with the
Union's request to furnish it with the information so
compiled, but it thereafter refused to do so, though at the
same time disparaging the results of the Union's survey,
expressing confidence only in its own, and refusing to
agree to a joint survey. Finally, that it was Respondent's
consistent practice to follow community rates was plainly
demonstrated by the unilateral increase given on
November 1, 1965, which it announced as being on the
basis of "upward trends in community wages," and as in
keeping with Respondent's "continued effort to respond to
community wage trends."
It is definitely established that an employer's refusal to
produce such information as the Union here requested is a
violation of Section 8(a)(5) of the Act. See, e.g.,
Westinghouse Electric Supply Company, 96 NLRB 407;
Whitin Machine Works, 108 NLRB 1537; N.L.R.B. v.
Yawman & Erbe Manufacturing Co., 187 F.2d 947 (C.A. 2);
N.L.R.B. v. Northwestern Publishing Company, 343 F.2d
521 (C.A. 7), enfg. 144 NLRB 1069; N.L.R.B. v. Truitt Mfg.
Co., 351 U.S. 149; N.L.R.B. v. Western Wirebound Box Co.,
356 F.2d 88 (C.A. 9).
Of particular significance because of its immediate
bearing on Respondent's position on the wage issue here is
Westinghouse Electric Supply Co., supra, where the Board
was passing on a refusal to furnish the results of a survey
similar to those involved here and where it held that:
As the information disclosed in the survey was clearly
relevant to the salary rate range issue and the
Respondent plainly knew it, the withholding of such
information after the Union's demand deprived the
Union of any possibility of considering the
Respondent's argument and bargaining intelligently
on the matter. Such conduct on the part of the
Respondent does not meet the test of good faith
bargaining. [Emphasis supplied.]
I therefore conclude and find that by refusing on and
after March 24, 1964,' to furnish to the Union the
requested information concerning Respondent's area
wage surveys, Respondent refused to bargain with the
Union within the meaning of Section 8(a)(5) of the Act.
e. Refusal to furnish information regarding the area wage
survey
As early as January 1964, Respondent informed the
employees in announcing the wage increase to the
maintenance employees that the raise was given pursuant
to Respondent's practice of "fairly reflecting community
influences" upon its rates and that it periodically
considered the relationship of its jobs to the community.
That action was taken after company supervisors
represented that they propposed to make a survey of their
own to check on the rates contained in a community could furnish the information probably within "a couple of days "
f. Respondent 's inflexible position on wage increases
The findings made in sections c and e, supra, constitute
an essential part of, as well as an introduction to, the
findings made on the present issue.
The gist of Respondent's position, repeated throughout
the negotiations, was well summarized in Sorenson's
statement at the March 20 meeting that management had
" Sorenson represented at the meeting of March 19 that he
GENERAL ELECTRIC COMPANY 213
established its rate structure after looking into the
community and the area rates and analyzing the jobs and
that it was up to the Union to submit countervailing facts
sufficient to overcome management's judgment that its
wage rates were fair and right. In the same breath,
however, Sorenson stated he did not care what the Union
submitted as its survey, and he repeatedly rejected the
Union's request that the Company produce its own wage
surveys (the only ones in which it had confidence) which
formed at least part of the basis for its position that its
employees were properly paid. And when the Union
endeavored to compare Respondent's rates with the
higher ones shown by its own survey, Respondent insisted
that it had studied the area "very carefully" and that the
Union's showing did not overcome management's
judgment that its rates were fair and right. Thus while
persistently withholding information concerning its own
surveys, Respondent effectively blocked all attempts by
the Union to negotiate intelligently on the wage issue.
"Such conduct on the part of Respondent [did] not meet
the test of good-faith bargaining." Westinghouse Electric
Supply Co., supra.
I conclude and find that it was the adamant
maintenance of that position which led to the impasse on
the wage issue on April 16 (the only other open issues
being arbitration and seniority). Furthermore when
negotiations were briefly resumed in October, Respondent
adhered to that position in the face of Schultz' announced
readiness to surrender on arbitration and seniority if some
increase could be given upon signing the contract. The
Union's final and complete capitulation occurred on
December 1, without any intervening change in
Respondent's position, and with the Union reserving the
right to maintain its charges. Cf. Henry I. Siegel Company,
Inc. v N.L.R.B., 340 F.2d 309, 310 (C.A. 2).
Nor was there any change in Respondent's position
during the 1965 negotiations. On March 31, for example,
Keefe defended Respondent's rates as being higher than
the community average, but when Smith proposed a joint
survey to resolve their conflicting positions, Keefe rejected
the request with the conventional response that
Respondent had its own ways of making wage surveys in
the area.
Indeed, the outcome of the 1965 negotiations seemed a
foregone conclusion, for as the Union correctly surmised
from the earlier negotiations, what Respondent offered
(and put into effect immediately) was the same increase it
had announced to the employees in August 1963.
Furthermore Respondent compounded its derogation of
the Union's status by reminding the employees that the
increase they were receiving was the one which the
Company granted in 1963 ! Moreover, that action was
taken in the teeth of Sorenson's position in the October
meetings that the amount of the April increase would be a
negotiated amount, "since we [were] negotiating." But
there were no real negotiations about wages prior to the
expiration of the contract. The record shows that at the
end of the third meeting on March 30 there was a casual
reference by Smith to the fact that the Union had asked for
a 7-1/2 percent increase and Keefe replied he would have
something the next day. When Keefe presented his rate
schedule the next day, the discussion ended quickly when
Keefe rejected Smith's proposal that they resolve their
conflicting contentions as to the adequacy of the rates in
comparison with community wages by making a joint
survey.
There were no further discussions of wages prior to
Respondent's fait accompli on April 6, when it put into
effect the increase it had announced in 1963.
I conclude and find on the entire record that all times on
and after March 24, 1964, Respondent withheld from the
Union relevant information concerning Respondent's area
or community wage surveys, thereby depriving the Union
of any possibility of bargaining intelligently on the wage
issue. By adhering to that position, Respondent was
thereby enabled to maintain the inflexible position that no
wage increase was justified and that it would not grant
any-save such as it had predetermined long before the
negotiations opened.
g. Conditioning negotiations on the termination of the
strike
Respondent's reply to the Union's request for a
resumption of negotiations during the strike was the
imposing of the flat condition that the Union call off the
strike and remove the pickets. It is settled law that the
existence of a strike does not suspend the obligation on the
part of the employer to bargain and that the employer may
not condition such obligation upon the abandonment of a
strike. N.L.R.B. v. Rutter-Rex Manufacturing Company,
245 F 2d 594, 596 (C.A. 5); N.L.R.B. v. United States Cold
Storage Corporation, 203 F 2d 924, 928 (C.A. 5), N.L.R.B.
v. Pecheur Lozenge Co., Inc., 209 F.2d 393, 403 (C.A. 2).
I therefore conclude and find that by informing the
Union it would consider meeting and negotiating only if the
strike were terminated and the pickets removed,
Respondent refused to bargain within the meaning of
Section 8(a)(5) of the Act.
h. The defeasance clause and related refusals to bargain
All remaining refusal to bargain issues herein are
directly related to and turn on questions concerning the
Union's majority and Respondent's asserted doubt
thereof, beginning with its letter of March 31 in which it
first sought a "no-bar" clause. Preliminarily we note the
Board's rules concerning the continuity of union
representative status, approved by the Supreme Court in
Ray Brooks v. N.L.R.B., 348 U.S. 96-98, including its rule
that a certification must be honored for a reasonable
period, ordinarily 1 year in the absence of unusual
circumstances (and none were shown here), despite any
interim loss of majority. See, e.g., Keller Plastics Eastern,
Inc., 157 NLRB 583. Here the presumption continued by
virtue of the contract and the current negotiations for
renewal down to the eve of the expiration of the contract
term.' o
Though I conclude and find from the evidence that the
Union did not thereafter represent an actual majority of
the employees, the General Counsel and the Union
contend that Respondent may not rely on the Union's loss
of majority for such loss was directly attributable to
Respondent's unfair labor practices. See, for example,
"' Respondent's brief apparently concedes as much, for it
argues that, "The presumptive majority of the union ceased at the
end of the certification year, or certainly by the conclusion of the
first contract It was only after it was conclusively shown to
the Company, through the employee decertification petitions, that
the union did not in fact represent a majority, that recognition was
withdrawn from the union "
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678,
687, where the court held as follows-
Petitioner cannot, as justification for its refusal to
bargain with the Union, set up the defection of union
members which it had induced by unfair labor
practices, even though the result was that the union
no longer had the support of a majority. It cannot
thus, by its own action, disestablish the union as the
bargaining representative of the employees,
previously designated as such of their own free will
[citing cases] Petitioner's refusal to bargain under
those circumstances was but an aggravation of its
unfair labor practice in destroying the majority's
support of the union, and was a violation of §§8(a)(1)
and (5) of the Act.
I find those principles controlling here, for I conclude
and find on the entire evidence that it was Respondent's
refusal to bargain at all times on and after March 24, 1964,
which induced the defection of union members and
resulted in the loss of the Union's majority.
Respondent contends, however, that it was not only
justified in withdrawing recognition after the filing of the
decertification petition and the expiration of the contract
but that it was required to do so under the principles of
International Ladies' Garment Workers' Union (Bernhard-
Altmann) v. N.L.R.B, 366 U.S. 731; Midwest Piping &
Supply Co., Inc., 63 NLRB 1060; and Kenrich
Petrochemicals, Inc., 149 NLRB 910. That contention
requires consideration of an apparent conflict
between-or at least of conflicting implications
of-Bernhard-Altmann, supra, and Franks Bros. Company
v. N.L.R.B., 321 U.S. 702.
In Kenrich Petrochemicals the Board in effect applied
the principle of Bernhard-Altmann, though it did not cite
either that case or Franks Bros., in a situation where the
employer defended the signing of a new contract on the
ground that its own unfair labor practices had caused the
loss of the union's majority. More recently, however, the
Board has squarely faced and decided the issue whether
Franks Bros. or Bernhard-Altmann is controlling in a case
where the Union's loss of majority is attributable to the
employer's unfair labor practices.
Thus in Keller Plastics Eastern, supra, the Board agreed
that Bernhard-Altmann clearly established that neither an
employer's absence of knowledge of a union's lack of
majority status nor a good-faith contrary belief is relevant
in determining whether an employer's recognition of a
minority union constitutes unlawful assistance . But the
Board also pointed to the fact that in Franks Bros. the
Supreme Court held that the Board had properly ordered
an employer to bargain with a union which had lost its
majority status after the employer had wrongfully refused
to bargain. The Board also quoted its language in Poole
Foundry and Machine Company, 95 NLRB 34, 36, enfd.
192 F.2d 740 (C.A. 4), cert. denied 342 U.S. 954, as follows:
It is well settled that after the Board finds that an
employer has failed in his statutory duty to bargain
with a union , and orders the employer to bargain,
such an order must be carried out for a reasonable
time thereafter without regard to whether or not there
are fluctuations in the majority status of the union
during that period. [Emphasis supplied.]
Applying those principles the Board found, under the
circumstances presented in Keller that the union
remained the statutory representative of the employees at
the time of the execution of a contract. Here, however,
Respondent refused to bargain prior to the negotiation of a
contract, relying on a loss of majority which its very
refusal to bargain had induced.
This Respondent could not legally do under the
principle of Franks Bros. I therefore conclude and find
that at all times on and after March 31, 1965, including
specifically April 30, August 18, September 7, and the
granting of a unilateral increase on November 1, 1965,
Respondent refused to bargain within the meaning of
Section 8(a)(5) of the Act.
Respondent's remaining contentions require only brief
consideration. It argues (1) that findings on the Union's
refusal-to-bargain charge must be confined to conduct
which occurred prior to the filing of the charge on April 27,
1964, and (2) that in any event that charge became moot
when the Union signed the contract on December 1. There
is no merit to either of those contentions.
(1) It is settled law that the Board may deal adequately
with unfair labor practices which are related to those
alleged in the charge and which grow out of them while the
proceeding is pending before the Board. N.L.R.B. v. Fant
Milling Company, 360 U.S. 301, 307; National Licorice
Company v. N.L.R.B., 309 U.S. 350, 369. Here the refusal
to bargain which was found to commence before the
charge was filed was found to have continued thenceforth.
Not only was the continuing refusal related to the earlier,
but it consisted of the identical conduct. The remaining
allegations were also related to the course of the
bargaining negotiations and plainly grew out of the charges
pending before the Board. Furthermore, the complaint put
Respondent on notice that its subsequent acts were also
being charged as unfair labor practices, and the
allegations were fully litigated without objection.
(2) As previously found, Respondent's unlawful
conduct effectively blocked all attempts by the Union to
negotiate intelligently on the crucial wage issue, and its
capitulation was forced by Respondent's adament
maintenance of its improper position. Aside from that, at
the very moment of capitulation the Union informed
Respondent it was reserving its right to obtain an
adjudication of its charges. Respondent cites no authority
for its claim of mootness, and I find that the established
law is to the contrary. See, e.g., Henry I. Siegel Co., Inc. V.
N.L.R.B., 340 F.2d 309,311 (C.A. 2).
i. The Union's contentions
The Union seeks by its brief a finding similar to that in
General Electric Company, 150 NLRB 192, that a refusal
to bargain was established by Respondent's overall
approach to bargaining and by the totality of its conduct. It
is to be noted, however, that in General Electric there was
a general allegation of bad-faith bargaining, absent here,
and a finding both by the Trial Examiner (p. 283) and the
Board (pp. 196-197) of bad-faith bargaining based on the
"totality" and the "entire course" of the Company's
conduct.
Here, however, the complaint charged that Respondent
refused to bargain only by engaging in specific acts and
conduct and it omitted any allegation that Respondent's
overall conduct constituted a refusal to bargain. The
General Counsel litigated the case strictly on the
allegations of the complaint, thrice disclaiming on the
record any contention that Respondent's overall approach
or overall bargaining was such as was found in General
Electric, supra, to constitute a refusal to bargain.
Moreover, at one point the General Counsel announced his
flat opposition to any attempt by the Union to litigate the
case on the basis or theory of the "big G. E." case.
GENERAL ELECTRIC COMPANY
It is thus apparent that to lay a proper basis for
consideration of the Union's contention, an amendment to
the complaint would have been necessary in order to
properly frame the issue for litigation. But the General
Counsel, who determined the scope of the complaint,
proceeded on a basis which required no amendment, and
he expressed blunt opposition to injection of a theory
which would have required one.
As the Union refrained from pressing the point with the
General Counsel and made no motion to amend the
complaint, I conclude and find that the issue which the
Union now seeks to raise was neither within the
framework of the pleadings nor of the issues as litigated at
the hearing Moreover, assuming arguendo that the
Union's assertion of its contention amounts in effect to a
motion to amend, I conclude and find that the Charging
Party is without standing to move a complaint amendment
without consent of the General Counsel. Piasecki Aircraft
Corporation, 123 NLRB 348, 366, enfd. 280 F.2d 575
(C.A. 3): International Union of Electrical, Radio &
Machine Workers (Neco Electric Products Corp.) v.
N.L.R.B., 289 F.2d 757, setting aside and remanding 124
NLRB 481. See also Sailor's Union of the Pacific (Moore
Dry Dock), 92 NLRB 547, and Dallas Concrete Company,
102 NLRB 1292
Aside from the foregoing I conclude and find that the
evidence in the present record falls far short of the totality
of the conduct which was found in General Electric, supra,
to establish that the Company had not bargained in good
faith. Cf Stark Ceramics, Inc., 155 NLRB 1258.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1)
2. By discriminating against employees because of their
strike activities, thereby discouraging membership in the
Union, Respondent engaged in unfair labor practices
proscribed by Section 8(a)(3)and (1) of the Act.
3. All production and maintenance employees
employed at Respondent's Gainesville, Florida, plant, but
excluding all other employees, including office clerical
employees, professional employees, technical employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times on and after January 21, 1964, the Union
has been and now is the exclusive bargaining
representative of the employees in the foregoing unit,
within the meaning of Section 9(a) of the Act.
5 By refusing to bargain with the Union in the respects
as found in sections D, 3, e, f, g, and h, supra, Respondent
engaged in and is engaging in unfair labor practices
proscribed by Section 8(a)(5) and (1) of the Act.
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act, I shall recommend that it cease and desist therefrom
and that it take certain affirmative action of the type which
is conventionally ordered in such cases as provided in the
215
Recommended Order below, which I find necessary to
remedy and to remove the effects of the unfair labor
practices and to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this
proceeding, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Respondent General Electric Company, Battery
Products, Capacitator Department, its officers, agents,
successors, and assigns, shall-
1. Cease and desist from:
(a) Prohibiting the distribution of union literature on
Respondent's parking lot by employees on their own time.
(b) Interrogating employees coercively concerning the
union activities, sentiments, and feelings of themselves
and of other employees or concerning the use of their
names on union literature.
(c) Informing employees that they are forbidden to talk
about the Union at any time and conveying the impression
of surveillance of union activities.
(d) Warning employees that engaging in a walkout or
failing to cross a picket line during a lawful strike are
matters which will effect their evaluation for continued
employment.
(e) Suspending and withdrawing promotions from
employees who engage in protected concerted activities on
the mistaken belief that said employees engaged in
misconduct.
(f) Unilaterally announcing and granting wage increases
to employees which are calculated to influence the choice
of a bargaining representative in any future election or to
bypass, undercut, or undermine the Union's status as the
statutory representative of the employees
(g) Interjecting itself into purely internal affairs of the
Union
(h) Discouraging membership in International
Brotherhood of Electrical Workers, AFL-CIO, or in
Local 2156 of said International Union, or in any other
labor organization, by failing to reinstate, upon their
application on termination of a strike, returning strikers
for whom work is available.
(i) Failing and refusing to bargain with International
Brotherhood of Electrical Workers, AFL-CIO, and
Local 2156 of said International Union, as the statutory
bargaining representative of its employees in the unit
herein found to be appropriate, in the following respects:
(1) By failing or refusing to furnish to the Union upon
request information concerning Respondent's wage
surveys or other information necessary to enable the
Union to bargain intelligently on the wage issue and on
other unresolved bargaining issues.
(2) By maintaining an inflexible position that no wage
increase is justified while withholding from the Union
relevant information which is necessary to enable the
Union to bargain intelligently on the wage issue.
(3) By conditioning a resumption of negotiations on the
termination of a lawful strike and on the removal of
pickets.
(4) By insisting that any agreement which may be
reached in negotiations contain a defeasance clause
providing that such agreement will not be considered by
either party as a bar to an election.
(5) By refusing to meet and to negotiate with the Union
upon request.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(6) By announcing and granting unilaterally and without
prior notice and negotiation with the Union wage increases
and grade changes to its employees.
(j) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their right to self-organization, to form labor organizations,
to join or assist International Brotherhood of Electrical
Workers, AFL-CIO, or Local 2156 of said International
Union, or any other labor organization, to bargain
collectively through representatives of their own choosing
and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activity.
2. Take the following affirmative action.
(a) Make whole James Wetherington and William
Mitchell for any loss of pay which each may have suffered
from Respondent's conduct by payment to each of them of
a sum of money equal to that which he would normally
have earned from June 4 through June 8, 1965, less his net
earnings during said period, together with interest thereon
at the rate of 6 percent per annum . Ists Plumbing &
Heating Co., 138 NLRB 716.
(b) Offer to Mary Sherley the promotion for which she
was recommended before the strike and make her whole
for any loss of pay which she may have suffered from her
suspension on June 7, 1965, and from the denial of her said
promotion, by payment to her of a sum of money equal to
that she would have normally earned from June 7 in the
job from which her promotion was withdrawn, less her net
earnings to date of payment, with interest thereon as
provided in the foregoing section.
(c) Upon request furnish to the Union information
concerning Respondent's wage surveys or other
information necessary to enable the Union to bargain
intelligently on unresolved bargaining issues.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order
(e) Post in its offices and plant at Gainesville, Florida,
copies of the attached notice marked "Appendix.""
Copies Of said notice, to be furnished by the Regional
Director for Region 12, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in
conspicuous places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered.
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 12, in
writing, within 20 days from the receipt of this Decision.
what steps Respondent has taken to comply herewith.''
IT IS FURTHER RECOMMENDED that the consolidated
complaint be dismissed insofar as it alleges violations not
found herein.
" In the event that this Recommended Order is adopted by the
Board, the words `a Decision and Order" shall be substituted for
the words ` the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" hall
be substituted for the words "a Decision and Order "
'' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read `Notify the
Regional Director for Region 12 , in writing, within 10 days from
the date of this Order what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order :o effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that.
WE WILL NOT prohibit the distribution of union
literature by employees on our parking lot on their
own time.
WE WILL NOT interrogate employees coercively
concerning the union activities, sentiments, and
feelings of themselves and of other employees or
concerning the use of their names on union literature.
WE WILL NOT inform employees that they are
forbidden to talk about the Union at any time or
convey the impression of surveillance of union
activities.
WE WILL NOT warn employees that engaging in a
walkout or failing to cross a picket line during a lawful
strike are matters that will affect then- evaluation for
continued employment.
WE WILL NOT suspend or withdraw promotions
from employees who engage in protected concerted
activities on the mistaken belief that said employees
engaged in misconduct.
WE WILL NOT unilaterally announce or grant wage
increases to employees which are calculated to
influence the choice of a bargaining representative in
any future election or to bypass, undercut, or
undermine the Union' s status as the statutory
representative of the employees.
WE WILL NOT interject ourselves into purely
internal affairs of the Union.
WE WILL NOT discourage membership in
International Brotherhood of Electrical Workers,
AFL-CIO, or in Local 2156 of said International
Union, or in any other labor organization, by failing to
reinstate, upon their application on termination of a
strike, returning strikers for whom work is available.
WE WILL NOT fail or refuse to bargain with
International Brotherhood of Electrical Workers,
AFL-CIO. and Local 2156 of said International Union
as the statutory bargaining representative of all
employees in the approporiate unit stated below in the
following respects:
(1) By failing or refusing to furnish to the
Union upon request information concerning our
wage surveys or other information necessary to
enable the Union to bargain intelligently on the
wage issue and on other unresolved bargaining
issues.
(2) By maintaining an inflexible position that
no wage increase is justified while withholding
from the Union relevant information which is
necessary to enable the Union to bargain
intelligently on the wage issue.
(3) By conditioning a resumption of
negotiations on the termination of a lawful strike
and on the removal of pickets.
(4) By insisting that any agreement which may
be reached in negotiations contain a defeasance
clause providing that such agreement will not be
considered by either party as a bar to an election.
J.P. STEVENS 217
(5) By refusing to meet and to negotiate with
the Union upon request.
(6) By announcing and granting unilaterally
and without prior notice and negotiations with
the Union wage increases and grade changes to
our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to form
labor organizations, to join or assist International
Brotherhood of Electrical Workers, AFL-CIO, or
Local 2156 of said International Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activity.
WE WILL make whole James Wetherington and
William Mitchell for any loss of pay which they may
have suffered as a result of our discrimination against
them in the manner provided in the Trial Examiner's
Decision.
WE WILL offer Mary Sherley the promotion for
which she was recommended before the strike of
May 24, 1965, and make her whole for any loss of pay
which she may have suffered from her suspension on
June 7, 1965, and from the denial of her said
promotion in the manner provided in the Trial
Examiner's Decision.
The appropriate unit is:
All production and maintenance employees at
our Gainesville, Florida, plant, but excluding all
other employees, including office clerical
employees, professional employees, technical
employees, guards and supervisors as defined in
the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization.
GENERAL ELECTRIC
COMPANY, BATTERY
PRODUCTS, CAPACITATOR
DEPARTMENT
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 706 Federal
Office Building, 500 Zack Street, Tampa, Florida 33602,
Telephone 228-7711, Ext. 257.
proceedings, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in other unfair
labor practices alleged in the complaint and
recommended dismissal of those allegations.
Thereafter, the Respondent, the General Counsel,
and the Charging Party filed exceptions to the
Decision and supporting briefs-'
The National Labor Relations Board has reviewed
the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions, the briefs, and the entire record in
these cases, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, with the modifications noted below.2
The Trial Examiner found that the Respondent
had unlawfully discharged 19 of the employees
named in the complaint, and further discriminated
against another employee in the assignment of
overtime work. He also found numerous instances of
interrogation by the Respondent of employees about
their union activities, threats by the Respondent
concerning unionization and employees' union
affiliation, and other conduct contravening Section
8(a)(1) of the Act. We adopt the Trial Examiner's
conclusions as to all but three of the alleged
discriminatees, and modify his Decision in the
respects hereinafter noted.
8(a)(1) Conduct
The Trial Examiner inadvertently failed to find
specifically that certain conduct of the Respondent,
which he described, violated Section 8(a)(1) of the
Act, although he did make general findings to this
effect in his "Conclusions of Law." In order to
clarify his Decision, we list all the incidents
mentioned in his Dei;ision,3' which, in context, we
find violated Section 8(a)(1).4
The Charging Party's request for oral argument is hereby
denied as the record, the exceptions , and the briefs adequately
present the issues and the positions of the parties
J. P. Stevens and Co., Inc. and Industrial
Union Department , AFL-CIO. Cases
11-CA-2435, 2464, 2484, 2485, 2487, 2496, 2501,
2503, 2525, 2450, 2518, 2519, 2531, 2532, 2534,
2539, 2675, 2549, 2550, 2552, 2564, 2584, 2506,
2720, 2725, and 2703.
March 6, 1967
DECISION AND ORDER
On January 13, 1966, Trial Examiner Horace A.
Ruckle issued his Decision in the above-entitled
163 NLRB No. 24
[Certain inadvertent errors and omissions in the Trial
Examiner's Decision have been corrected by the addition, in
brackets, of the , orrections immediately following the appropri-
ate words or phrases ]
Only those incidents specifically alleged in the complaint to
violate Section 8(a)(I) are discussed herein
[The Board's page and line references to the Trial Examiner's
decision have be-ii iianged to section references in the printed
decision.]