Gray Line, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1974

209 N.L.R.B. 88 (N.L.R.B. 1974)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gray Line, Inc. and Local Division 1138 , Amalgamat-
ed Transit Union , AFL-CIO. Case 5-CA-6144
February 15, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 28, 1973 , Administrative Law Judge
Eugene F . Frey issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act , as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
We share our dissenting colleague 's interest in the
provident expenditure of the taxpayer's money. We
are at a loss nonetheless to understand why that
interest impels our colleague to the position he has
taken in this matter , particularly since it is the party
at fault who has chosen litigation ad nauseam in
preference to speedy compliance . Apparently our
colleague concedes that a violation of our Act has
been made out yet he avoids the necessary conse-
quences of such a finding by characterizing the
violation as "technical " and urging dismissal on the
basis of a case, American Federation of Musicians,
Local 76, AFL-CIO (Jimmy Wakely Show), 202
NLRB 620, which , even if we subscribed to the
principles enumerated there , the Administrative Law
Judge found , correctly we believe, inapposite on the
facts. Furthermore , our colleague inquires as to the
consequences of Respondent ' s conduct on the
employees here involved and on the course of
collective bargaining between these parties. Appar-
ently he thinks there are none or that they are so
minor as to be inconsequential . We disagree, and
would ask our colleague how the Respondent's
unilateral grant of wage increases at a time when the
Union sought to negotiate terms and conditions of
employment including wages could have other than a
serious and adverse affect on the employees' percep-
tion of the relationship between Respondent and the
Union and on the utility of collective bargaining
itself.
ORDER
Pursuant to Section 10(c) of the National Labor
209 NLRB No. 17
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent Gray Line, Inc.,
Washington, D.C., its officers, agents. successors,
and assigns, shall take the action set forth in the said
recommended Order except that the attached notice
is substituted for that of the Administrative Law
Judge.
CHAIRMAN MILLER, dissenting:
How many angels can dance on the head of a pin?
I suppose that several thousand dollars of taxpay-
er's money have been spent on prosecuting and
trying this case. It is difficult for me to imagine a
more useless exercise, and impossible for me to
justify such an improvident use of this Agency's
resources.
Perhaps a technical violation of our Act has been
established . But was any employee substantially
adversely affected here? Did the institution or
process of collective bargaining suffer even one whit
because of the events herein litigated ad nauseam?
And what recognizable facet of Federal labor policy
has been advanced a single millimeter by these
proceedings?'
The complaint , in my view, should never have
issued , and once issued should , long since , have been
summarily dismissed . American Federation of Musi-
cians, Local 76, AFL-CIO (Jimmy, Wakel)y Show), 202
NLRB 620.
i Although the Administrative Law Judge 's recommended Order
provides that no provisions thereof shall in any way be construed as
requiring Respondent to revoke any wage increases theretofore granted to
employees , the recommended notice provides that Respondent will not
revoke any wage raises previously given to unit employees . We have
therefore amended the notice so as to conform it to the recommended
Order
2 My colleagues respond to these questions by the unenlightening device
of asking another, t e , how the acts herein could have other than serious
effects The answer to that inquiry is in the record-in the factual context
here it is plain as a pikestaff that they had no effect whatever either on the
bargaining ( indeed . General Counsel makes no allegation of had-faith
bargaining) nor on any other policy with which this Act is concerned
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has
GRAY LINE, INC
found that we violated the National Labor Relations
Act and has ordered us to post this notice:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights.
WE WILL NOI grant merit raises or cost-of-
living increases in wages to our employees, or
make any other changes in wages or rates of pay,
without prior notice to or consultation with Local
Division 1138, Amalgamated Transit Union,
AFL-CIO, as the exclusive bargaining represent-
ative of our employees in the appropriate bargain-
ing unit described below, or in any like or related
manner refuse to bargain collectively with the
above Union as such bargaining agent: except
that nothing contained herein shall be construed
as requiring us to revoke any wage increase that
we have heretofore granted.
WE WILL NOT by the above conduct in any like
or related manner interfere with, restrain, or
coerce employees in the bargaining unit described
below in the exercise of the rights guaranteed to
them by Section 7 of the Act, including the right
to join, assist, or bargain collectively through the
above-named Union or any other labor organiza-
tion.
WE WILL, upon request, bargain collectively
with the above Union as the exclusive bargaining
representative of our employees in the unit
described below with respect to rates of pay,
wages, hours of employment, and other condi-
tions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The appropriate bargaining unit is:
All of our maintenance employees, including
mechanics and servicemen, but excluding all
office clerical employees, professional em-
ployees, guards, supervisors as defined in the
Act, and all other employees.
GRAY LINE, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not he defaced
by anyone.
89
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.
Any questions cbncerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 1019,
Charles Center, Baltimore, Maryland 21201, Tele-
phone 301-962-2822.
DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Administrative Law Judge: This case
was tried before me on due notice on August 22, 1973, with
all parties represented by counsel or other representative,
after pretrial proceedings in compliance with the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et
seq. (herein called the Act). The issue is whether or not
Respondent Gray Line, Inc., in course of bargaining with
the above-named Union as exclusive bargaining represent-
ative of employees of Respondent in an appropriate unit,
made unilateral grants of wages to employees which
amounted to a refusal to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act.' At close of
the testimony counsel for General Counsel made oral
argument, and both General Counsel and Respondent filed
written briefs which have been carefully considered in
preparation of this Decision which was signed and released
by me on September 27, 1973, for distribution to the
parties in the usual course.
Upon the entire record in the case, observation of
witnesses on the stand, and consideration of the oral and
written arguments of counsel, I make the following:
FINDINGS OF FACT
1. RESPONDENr's BUSINESS AND STATUS OF FHE
UNION
Respondent is a District of Columbia corporation
engaged in the operation of public sightseeing tours in the
greater Washington, D.C.. metropolitan area. In course of
its business in the last 12 months Respondent has had gross
receipts in excess of $500,000, and has also had a direct
inflow of supplies valued in excess of $3,000. Respondent
admits, and I find, that it is and has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Union is and has been a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE 2
In a private election held on January 5, a majority of
I The issue arises on a complaint issued July 31, 1973, by the Board's
Regional Director for Region 5 and amended at the trial , after Board
investigation of a charge filed June 4, 1973, by the Union and answer of
Respondent admitting jurisdiction but denying the commission of any
unfair labor practices
s All dates stated herein arc in 1973, unless otherwise noted.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's maintenance employees in an appropriate
unit3 selected the Union as their collective -bargaining
representative , and since said date the Union has been and
now is the exclusive bargaining agent of all employees in
said unit , within the meaning of Section 9(a) of the Act.4
After due request by the Union for bargaining on
January 8 , the parties engaged in contract negotiations at
meetings held on January 24, March 12 and 30, April 17,
23, and 26, and May 17, 24, and 31. In those negotiations,
the wage issue arose at the outset when the Union
presented its first contract proposal on February 19. The
proposal was actually a list of proposed amendments to the
Union's existing contract covering drivers and stand men
of Respondent , which were designed to include the
maintenance men and make special provision for their
wages and working conditions. The Union first brought the
proposal up for discussion on March 12 , when there was
discussion of the wage demands but no agreement.
Respondent submitted a counterproposal on March 22, but
nothing on wages, indicating it would submit a wage
proposal later . However, the Union 's wage demand was
discussed , again without agreement.
On March 11, Respondent gave employee Lewis Jackson
a wage raise of 50 cents an hour, retroactive to January 7.
On March 31, it gave six unit employees cost -of-living
(herein called COL) raises which were based on the COL
indices issued quarterly by the United States Department
of Labor. The total amounts paid reflected changes in the
cost of living as far back as the August 15, 1972, official
release, with employees receiving varying amounts depend-
ing upon whether they were hired before or after that date
and the date of later quarterly releases. Four other unit
employees received nothing, having been hired after
February 15, and another employee of long service
received nothing since he was classed as a supervisor.
Explanation of the raises was given to each employee in a
letter issued at the time he received his current paycheck
which stated
As a result of our annual independent audit, it has been
brought to my attention that we have overlooked an
increase in your wage rate for the cost of living
adjustment.
You will note in your present paycheck a retroactive
payment of $2/m. The new increase will reflect in your
future paychecks.
All of these raises were given without prior notice to or
discussion with the Union . Its president, driver James L.
Tuthill, learned of them in discussion with one employee
on April 17. At the negotiation session of that date, the
Union raised the point , protesting the raises as an unfair
interference with the contract negotiations. In discussing,
3 All of Respondent 's maintenance employees , including mechanics and
servicemen, excluding all office clerical employees , professional employees,
guards , supervisors as defined in the Act , and all other employees , constitute
a unit appropriate for the purpose of collective bargaining within the
meaning of Sec. 9 (b) of the Act.
4 Prior to the election, the Union had been operating as bargaining agent
for Respondent 's drivers and stand men, under a contract signed with
Respondent in May 1972. The 1973 election , which was requested by
at that session , its wage counterproposal previously given
to the Union , Vice President Jack E . Brown of Respon-
dents explained the existing wages of mechanics and the
fact that they included the COL raises , giving the reason
stated in the above letter as the explanation for the March
31 raises. At the same time the Union was also given an
explanation of the extra 50-cent raise given to Jackson.
Wages and other issues were discussed in that and later
meetings , but no agreement had been reached through the
May 31 meeting , the last held between the parties. At the
May 24 meeting , the Union submitted an oral counterpro-
posal on wages at the end of the session through a Federal
mediator . At the final meeting of May 31, Respondent
presented a detailed counterproposal on that and other
subjects through the mediator , which was discussed by
each party with the mediator. No agreement was reached
on this issue , but the Union reluctantly agreed to take the
company counterproposal back to the membership for
their decision . The counterproposal was apparently not
accepted by the unit employees .6
Contentions of the Parties and Conclusions
General Counsel relies mainly on the fundamental
principle stated in N.L.R.B. v. Katz, 369 U.S. 736, 743
(1962) that any unilateral change by an employer in
conditions of employment which are under negotiation is a
basic violation of Section 8(a)(5), for it is a circumvention
of the employer's duty to negotiate which frustrates the
collective-bargaining principle just as much as a flat refusal
to negotiate . Applying the rule to merit raises given
unilaterally , the Supreme Court noted that such raises were
under negotiation at the time the employer granted a large
number, varying in size, and found they were also violative
of Section 8(a)(5) "unless the fact that they were in line
with the company's long-standing practice of granting
quarterly or semi-annual merit reviews-in effect were a
mere continuation of the status quo--differentiates them
from the wage increases and the changes in the sick-leave
plan." The Court held it did not, saying
Whatever might be the case as to so-called "merit
raises" which are in fact simply automatic increases to
which the employer has already committed himself, the
raises here in question were in no sense automatic, but
were informed by a large measure of discretion."
In conclusion the Court said "While we do not foreclose
the possibility that there might be circumstances which the
Board could or should accept as excusing or justifying
unilateral action, no such case is presented here."
The Jackson Raise
Respondent argues that special circumstances here show
Respondent . enabled the maintenance employees to vote to be covered by
the terms of the drivers ' contract.
5 As executive vice president and general manager of Respondent,
Brown has final responsibility for establishing wage policies and changing
wage rates.
s The above facts are found from a composite of credited testimony of
Tuthill, Brown , stipulated facts, and documentary proof.
GRAY LINE, INC.
the legality of the Jackson raise, because he received it
pursuant to an agreement made with him when hired,
which was consistent with its normal practice of grant of
such raises based on prehire agreements. In support of this
claim, Brown testified without contradiction, and I find,
that when Jackson was hired on July 7, 1972, as a
mechanic at $3.75 an hour, he had no diesel maintenance
experience. The maintenance supervisor promised him that
when he had acquired 6 months' satisfactory experience in
servicing diesel buses, he would get an automatic raise of
50 cents an hour. Although the 6 months expired on
January 7, 1973, Brown says Jackson did not get the raise
because of the "union atmosphere" then existing, that
Respondent did not want to affect the election or its
results. After the election, Jackson continually pressed
Brown for the raise every time he met him in the shop, so
Brown finally gave it to him March 11, retroactive to
January 7. The promise to Jackson was not unusual, for
Respondent had hired two experienced diesel mechanics 7
in April and May 1972, at $4 an hour. with a promise of a
50-cent raise at the end of 90 days, and they received the
raise at the end of that time. The only reason Jackson had
to wait 6 months for a similar raise was his lack of diesel
experience when hired. These facts tend to support the
claim that the Jackson unilateral raise was not illegal
because made in accordance with a past pattern of prehire
agreements. In Architectural Fiberglass-Division of Archi-
tectural Pottery, 165 NLRB 238, the Board refused to find
violations of Section 8(a)(5) as to six unilateral raises to
individual workers where the evidence supported the
defense that they were given strictly in fulfillment of
prehire promises to those employees. However, it did find
that other unilateral raises violated Section 8(a)(5) where
the times and amounts of such raises varied substantially
and did not conform to the pattern of prehire agreements
stated in testimony by company officials. The Board's
decision as to the six raises which conformed to past
practice would seem to require a finding that the Jackson
raise did not violate the Act, except for one circumstance:
Respondent offers no business reason why it could not
have given the raise automatically on January 7, which
would have conformed exactly to past practice. Brown
explained that the raise was not given then because of the
"union atmosphere," that the raise might "hurt" the
election and the "subsequent results of the election." When
Jackson asked about the raise, Brown told him it was
"touchy" at this time. As Brown testified Respondent was
acting on advice of counsel before and after the election
and during negotiations with the Union, it is inferable that
it probably received advice to avoid grant of any benefits
to employees pending and after the election and during
negotiation which could be charged as violative of the Act.
However, the delay in fulfilling the promise for this reason
r Edward White and Willie Thomas
8 The delay in giving the raise for the reasons stated by Brown shows
that Respondent was actmg at variance with its usual practice , that such
delayed action would not have been taken but for the presence of the
Union, and that theie were no economic or other reasons wholly unrelated
to the election or tile presence of the Union Hence, the grant in such
circumstances violated the Act See Dorn's 7ransporration Compunv, Inc ,
168 NLRB 457, Marshal! Durbin & Company o_f Jasper, Inc, 179 N1.RB
1027, 1028
9 Cf United Aircraft Corporation. Hamilton Standard Dnuron (Boron
91
was clearly an act of independent judgment by Respondent
which negated any inference of "automatic" action based
on a prior commitment such as would have been justified
if the raise had been given January 7, notwithstanding the
outcome of the election and before the Union's demand
for bargaining, under the Board's reasoning in the
Architectural Fiberglass case , supra, and the limiting caveat
of the Supreme Court in the Katz case, supra.s Since the
Katz decision, the Board has held that where an employer
proposes or promises to grant a raise, so that the employees
involved can reasonably expect that the promise will be
fulfilled, the promise and actual grant become a "condition
of employment," such that when the employer withdraws
the raise after certification of a union, and it appears that
the raise would have been given but for that certification,
the withdrawal without consulting with the union or giving
it a chance to negotiate on that change of a condition of
employment violated Section 8(a)(5) of the Act. Liberty
Telephone & Communications, Inc., and Century Telephone
Enterprises, Inc., 204 NLRB No. 54. The Board there
rejected the argument that any other course of action after
the certification would have subjected the employer to an
unfair practice finding, because the employer could have in
good faith consulted with the Union before taking that
action. Under this reasoning, the grant of the promised
raise to Jackson on the date promised, regardless of the
outcome of the election, would have been a continuance or
fulfillment of that "condition of employment" which could
hardly be said to have a tendency to adversely affect the
Union or its bargaining rights, whereas the deliberate
change of that "condition" by unilaterally withholding and
later granting it during negotiations, without the existence
of any impasse on wages, was a change in Jackson's
working conditions which required prior notice to or
consultation with the Union .9 Hence, I am constrained to
conclude that the actual unilateral grant of the raise long
after it was due under the prior agreement and practice
and during actual negotiations with the Union violated
Section 8(a)(5) of the Act and also interfered with the
employees' rights to have their representative consulted
about any change in their working conditions, in violation
of Section 8(a)(1) of the Act.
The COL Raises
Respondent argues that the general COL raises were part
of a past pattern of automatic raises which in effect
continued existing conditions of employment and thus
justified its unilateral action. On this point Brown testified
that since 1962 Respondent has followed the practice of
giving periodic automatic COL increases in base wage
rates to its drivers under terms of contracts with the Union.
Such raises are triggered by the quarterly announcement of
Filament Plant/, 199 NLRB 658, where the unilateral withholding during
negotiations of a raise which had been promised long before, for the
purpose of using that increase as an item in bargaining , was held to have
violated Section 8(a)(5) of the Act, while the later institution of the raise was
held not to violate the Act because under the peculiar facts of that case the
later raise did not have any tendency to obstruct bargaining, the union did
not protest the raise or request bargaining about it but had previously
requested that the raise he granted under a practice created under a poor
bargaining contract
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes in the COL index by the U.S. Department of
Labor. Since 1966, Respondent has given similar raises to
its maintenance men at the same time as, and in amounts
proportionate to, those given the drivers. Respondent
discontinued the program as to maintenance men about
May 15, 1972, because from late 1969 up to June 1972 that
department had been having a large turnover of personnel
with four retirements of experienced workers in an 18-
month period between 1969 and 1972; though new
employees were hired as probationers, many left after a
short stay because most of the service work was nightwork,
so that Respondent was having great difficulty in hiring
and keeping maintenance workers who gave indication
they intended to become permanent employees.10 Respon-
dent's past practice had been to give COL raises only to
permanent employees, but since the maintenance work-
force consisted of all new workers in early 1972, and
Respondent had no reason then to believe it was stable, it
discontinued that program, pending acquisition of a more
stable maintenance crew.11
It appeared to Respondent in late 1972 that new
maintenance workers hired early in the year gave indica-
tions they would remain as permanent workers, as few of
them left, some were buying their own toolkits, and all
were getting diesel maintenance experience.12 When the
evidence of stability accumulated with the continued
employment of mechanics B. Jordan (hired October 23,
1972) and F. Tester (hired February 12, 1973), Respondent
concluded early in 1973 that the workforce had become
stable, so that by February 12, when one Tester was hired,
conditions were favorable for resumption of the COL
increases. However, nothing was done until late in March
1973, when according to Brown, management learned it
had "made a mistake" in not resuming the COL raises
sooner, since their suspension was in fact penalizing the
two oldest employees.13 So management decided to resume
the program, but to make the payments retroactive to
August 1972, mainly in order to bring senior employees
Summers and Jordan up to date without penalty. Thus, the
exact retroactive amounts given the maintenance crew
varied according to their date of hire: those employed
before August 15, 1972 (three mechanics and one service-
man), got three COL raises based on the Department of
Labor indices of August 15 and November 15, 1972, and
February 15, 1973; mechanic Jordan received two raises,
based on a hire date of October 23, 1972, and mechanic
Tester received one raise, as he was hired 3 days before the
February 15, 1973, COL index release. Four servicemen
hired after the last date received nothing. Brown testified
that none of these raises were ever announced to or
discussed with the Union, because they were considered as
10 Of five mechanics hired in 1972, three have remained at work. Ten
servicemen were hired in the same year, but eight quit before the year
ended, and the other two left early in 1973.
-11 In the maintenance department , according to Brown, Respondent had
always considered the grant of COL increases as a form of reward to
employees who stayed with Respondent and indicated their intention of
becoming permanent employees.
12 Besides three mechanics hired in 1972 who remained at work in 1973,
three more hired in 1973 were still at work at time of trial. Seven new
servicemen were hired in 1973, and six were still employed at time of trial.
13 Mechanic J.C. Streeter (hired February 1960) and serviceman A.
Summers (hired August 1960).
owing to the employees under the existing COL raise
practice, and the contract negotiations included only "new
matters." 14
As in the case of Jackson, the issue here is whether the
circumstances of the COL raises denote merely a continua-
tion of the 1972 pattern of automatic periodic raises to
which Respondent had committed itself and which
employees had a right to expect, or whether they were
discretionary action by Respondent in the exercise of a
judgment based on other factors.
If the chain of quarterly COL raises had continued
unbroken throughout 1972 and in 1973 through the period
of the election and negotiations with the Union, there
would be merit to Respondent's contention, as strict
adherence to past practice would have afforded persuasive
proof of the automation feature which might have
exempted the raises from coercive inferences under the
caveat of the Katz case and the failure to find violations in
similar situations in the Architectural Fiberglass case.15
However, the voluntary suspension of the automatic
feature of the raises in August 1972, based on Respon-
dent's informed judgment as to the instability of the
maintenance crew, without any proven announcement of
that reason to the employees or promise of resumption of
the raises when the situation changed, and the resumption
of the raises, with retroactive features, in 1973 after
Respondent had reached a decision that the disabling
uncertainty of the workforce had substantially disap-
peared, strongly indicates the exercise of a deliberate
judgment after consideration of many factors in the
composition and operation of the maintenance crew, as
opposed to pure automatic action based on a government
release . I have also noted that Brown testified, and
Respondent admitted in its brief, that it has used these
increases over the years as an inducement to hold
mechanics, and that their reinstatement in 1973 after the
short suspension came "when the prospect of holding the
new mechanics became a realistic one." It is obvious that
determination of the reality of such prospect involved an
appraisal of various aspects of the work of employees, and
the grant or denial of a "reward" on that basis is patently
the result of a judgment by the donor on the existence or
nonexistence of factors governing the right to such reward.
Hence, I must conclude that both the suspension of the
COL raises in 1972 and their resumption in 1973 involved
the exercise by Respondent of a large measure of business
judgment and discretion, which prevents any finding of a
continuation of the pure "automation" which may have
existed in the pattern of COL raises prior to suspension of
the practice in 1972.16 The absence of this factor in 1973,
plus Brown's admission that the explanation to employees,
14 The above facts are found from uncontradicted testimony of Brown
and documentary proof.
15 See also State Farm Mutual Automobile Insurance Co., 195 NLRB 871,
where the Board found no illegality in COL increments given under a
longstanding program where the issuance of the raises came in routine
fashion upon information gleaned from the periodic BLS indices. The
Board in effect held that such raises were of "totally automatic nature."
16 Brown 's testimony also contains an admission that the past COL
raises were never fully "automatic ," in the sense that he made the decision
to grant each raise on review of the current BLS index . Respondent argues
that this only indicates a negligible exercise of discretion over a period of
grant of regular raises in 26 consecutive quarters from 1966 to 1972. The
GRAY LINE, INC.
that the retroactive payment of the missed COL increases
was an "oversight" recently revealed by an audit of
company books, was a deliberate but "innocuous" expla-
nation designed to prevent any appearance of interference
with the pending negotiations or undercutting of the
Union, clearly shows that Respondent was acting from
ulterior motives based in large part on the presence of the
Union, in resuming the COL raises in the negotiation
penod.17 Hence I must conclude that the unilateral grant
of the retroactive COL raises during the negotiations was
the type of conduct which falls within the principle and
prohibition of the Katz decision and later Board cases, and
violated Section 8(a)(5) of the Act.18
III. THE EFNL•CI OF THE UNFAIR LABOR PRACTICi•S
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.19 Nothing herein
contained shall be construed as requiring Respondent to
revoke any wage increases heretofore granted.
Although Respondent has not been charged with or
found guilty of overall bad-faith bargaining, and it appears
that negotiations are still pending and Respondent is
willing to resume bargaining when requested, I will still
recommend a pro forma bargaining order. Benne Katz,
salient factor, however, is that Respondent exercised substantial judgment
in suspending the regularity of this pattern of raises in August 1972 and in
resuming it in April, -973.
it The fact that Respondent felt It necessary. as it admits, to use the
pretext of "clerical error" in its explanation to the employees "so as not to
undermine or reflect discredit on the Union in any manner" and to
"reinforce the concept of its past practice in the minds of the employees,"
further strengthens the conclusion that the grant of raises during
negotiations was well calculated to affect the bargaining process and to
lessen employees' confidence in the Union as their bargaining agent
is i have carefully considered other authorities cited by Respondent in
its brief and conciude that they are either not inconsistent with the
authorities cited above, or not controlling on the facts
is Respondent has argued that no remedial order should issue, claiming
that the unilateral raises are "de mimmis," because General Counsel does
not claim that Respondent engaged in bad-faith bargaining with the Union.
and Respondent's wage offer to the Lmon on May 31 for all classifications
of maintenance workers started from a base of current wage rates, which
included all the raises here in question, hence the grant of those raises did
not hinder the Umon in the actual negotiations. which are still pending.
This argument is without merit because the Supreme Court in the Katz
case held that such raises were a serious obstacle to collective bargaining.
saying (369 U S at 747)•
Unilateral action by an employer without prior discussion with the
union does amount to a refusal to negotiate about the affected
93
Alfred Finkel and Murray Katz, d/b/a Williamsburg Steel
Products Company, 126 NLRB 288 , 290, affd . 369 U.S. at
747.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
the above-named Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. All of Respondent's maintenance employees, includ-
ing mechanics and servicemen, but excluding all office
clerical employees, professional employees, guards, super-
visors as defined in the Act, and all other employees,
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
3. Since January 5, 1973, the Union has been the
exclusive bargaining agent of all employees in said unit
within the meaning of Section 9(a) of the Act.
4. By granting unilateral merit raises and cost-of-living
increases in wages to individual employees and groups of
employees in said unit, Respondent has failed and refused
to bargain collectively with the Union as exclusive
bargaining agent of employees in said unit, and also
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed to them by Section 7 of the
Act, including the right to join, assist , or bargain
collectively through a labor organization of their choosing,
thereby engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(5) and (1)
and 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
conditions of employment under negotiation. and must of necessity
obstruct bargaining, contrary to the congressional policy -it will rarely
be justified by any reason of substance it follows that the Board may
hold such unilateral action to be an unfair labor practice in violation of
Section 8 ( a)(5), without also finding the employer guilty of overall
subjective had faith
See also , Boot-Ster Manufacturing Co. Inc, 165 NLRB 318, 322
Applying this principle here, and considering that the COL raises were
given to all employees who were in the appropriate unit on February 15,
1973, the presumptive effect on unit employees and detriment to the Union
in the ensuing bargaining was far more than minor , technical or de rnrntmrs,
notwithstanding that Respondent has apparently had amicable relations
with the same Union in administration of a contract covering drivers
Hence , I cannot consider this a case of minor import such as to warrant the
Board in staying its remedial hand Cf. Bob Morgan Motor Company, Inc,
106 NLRB 334, Pittsburgh Reflector Company d/h/a National Wood Products
Company and National Store Fixture and Equipment Company, 177 NLRB
812. 1 also consider American Federation of Musicians, 202 NLRB 620, as
inapposite on the facts.
I do not consider the 1973 raises as isolated, per se violations of the Act,
but have reached the conclusion of violation only after consideration of the
record as a whole, including all past and current events, as required by the
defense raised by Respondent See N LR B. v Cone Mills Corp. 373 F 2d
595, 599 (C A. 4. 1967)
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER20
Respondent , Gray Line, Inc., of Washington , D.C., its
officers, agents. successors , and assigns , shall:
1. Cease and desist from:
(a) Unilaterally granting merit raises or cost-of-living
increases in wages to employees in the appropriate
bargaining unit found above , or making any other
unilateral changes in wages or rates of pay, or in any like or
related manner refusing to bargain collectively with Local
Division 1138, Amalgamated Transit Union , AFL-CIO, as
the exclusive bargaining agent of its employees in the
appropriate bargaining unit consisting of all Respondent's
maintenance employees , including mechanics and service-
men, but excluding all office clerical employees , profes-
sional employees , guards, supervisors as defined in the Act,
and all other employees.
(b) By the above conduct or in any like or related
manner interfering with , restraining, or coercing its
employees in the exercise of rights guaranteed to them by
Section 7 of the Act, including the right to join, assist, or
bargain collectively through the above -named Union or
any other labor organization.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations . be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes
(a) Upon request, bargain collectively with the above-
named Union as the exclusive bargaining representative of
all its employees in the unit described above concerning
rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment However, no provisions of this Order shall in any
way he construed as requiring Respondent to revoke any
wage increases heretofore granted to employees in the unit
aforesaid.
(b) Post at its plant and place of business in Washington,
D.C., copies of the notice attached hereto and marked
"Appendix." 21 Copies of said notice, on forms provided by
the Regional Director for Region 5. after being duly signed
by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and shall be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
Si In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "