Hall Tank Co.

National Labor Relations Board - Board Decisions

Nov 15, 1974

214 N.L.R.B. 995 (N.L.R.B. 1974)

HALL TANK COMPANY
Hall Tank Company and Aluminum Workers Inter-
national Union, AFL-CIO, Local No. 232. Case
26-CA-5019
995
Lion number 46 however, it appears that the correction
should read "care" rather than "core." Accordingly, with
this modification, the motion is hereby granted.
November 15, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On July 29, 1974, Administrative Law Judge Peter
E. Donnelly issued the attached Decision in this pro-
ceeding. 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Hall Tank Company, North
Little Rock, Arkansas, its officers, agent, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge herein was filed by Aluminum Workers Interna-
tional Union, AFL-CIO, Local No. 232, herein called
Charging Party or Union, on March 4, 1974, and a com-
plaint was issued by the General Counsel of the National
Labor Relations Board on April 10, 1974. The complaint
alleges that Hall Tank Company, herein called Respondent
or Employer, violated Section 8(a)(1) and (5) of the Act by
refusing to bargain in good faith with the Union as collec-
tive-bargaining representative of its employees. An answer
thereafter was timely filed by Respondent and pursuant to
notice, a hearing was held before me at Little Rock, Arkan-
sas, on May 22, 1974. Beefs have been timely filed by Re-
spondent and General Counsel, which have been duly con-
sidered. General Counsel also filed a "Motion to Correct
Transcript" (ALJ Exh. 1) which has been duly considered.
No opposition has been filed to this motion. As to correc-
FINDINGS OF FACT
1. EMPLOYER 'S BUSINESS
Employer is a corporation doing business in the State of
Arkansas, with an office and place of business located in
North Little Rock, Arkansas, where it is engaged in the
manufacture of steel tanks. During the past 12 months,
Employer, in the course and conduct of its business opera-
tions, purchased and received at its North Little Rock, Ar-
kansas, location, products valued in excess of $50,000 di-
rectly from points located outside the State of Arkansas.
During the same period of time Employer sold and shipped
from its North Little Rock, Arkansas, location, products
valued in excess of $50,000 directly to points located out-
side the State of Arkansas. The complaint alleges, the an-
swer admits, and I find that the Employer is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent in its answer admits,
and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by insisting, as a condition to
the execution of the collective-bargaining agreement con-
taining grievance and arbitration procedures, that the
Union and the International Union with which it is affiliat-
ed agree to hold the Respondent harmless for all damages
incurred by the Respondent as a result of any breach of a
no-strike provision, unauthorized or otherwise, by individ-
ual members of either the Union or the International
Union with which it is affiliated and/or other unit employ-
ees.
A. The Facts
There is no substantial dispute as to the relevant facts.
The Union was certified on September 17, 1973, as the
collective-bargaining representative of certain employees
of the Respondent.'
Thereafter the parties met at a total of nine negotiating
sessions on the following dates, November 5, 14, 21, and
27; December 4, 11, 17, all in 1973; and January 10 and
February 19, 1974.
1 The unit, as set forth and admitted in the complaint and answer is
All production employees, maintenance employees, leadmen and
truck drivers employed at Respondent 's North Little Rock , Arkansas
plant , but excluding office clerical employees, guards and supervisors
as defined in the Act
214 NLRB No. 154
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was stipulated between the parties that Oscar E. Da-
vis, Jr ., Employer's attorney , and Richard D. Hall,
Employer's president , were present for Respondent. The
Union was represented by Dave Monroe , International
Representative of the Aluminum Workers International
Union, AFL-CIO , and plant employees Jimmy Moody
and Carroll Lewis. These individuals attended all nine ne-
gotiating sessions.
Davis generally acted as spokesman for the Respondent
and Monroe as spokesman for the Union.
At the first session on November 5, the Union submitted
a written "No Strike-No Lockout" proposal (G.C. Exh. 3)
which reads as follows:
Section 1:
The Union agrees that for the full term of this
Agreement and any renewal or extension thereof, it
will at all times cooperate fully with the Company in
maintaining full production.
The Union agrees not to call, authorize, condone, or
support any strike at the Company's plant covered by
this Agreement during the life of this Agreement and
agrees not to authorize, condone, or support any pick-
eting of the Company's Plant except as expressly pro-
vided in the Agreement.
The Company agrees that there shall be no lockouts
of employees during the life of this Agreement.
Section 2
In the event that any employee engages in a strike at
the Company's Plant, the Union agrees that upon no-
tification of the existence of such strike being given by
letter or telegram to the Union's International Presi-
dent that it will issue a written statement directed to
its members advising them that the stoppage is illegal,
and directing to return to work.
Section 3:
The Company agrees that in consideration of the
performance by the Union of the undertakings as-
sumed by it in this Article, that no liability by suit for
damages shall attach to the Union or its officers or its
agents for unauthorized breach of this Article by indi-
vidual members of the Union.
Davis and Hall disagreed with the content of section 3,
and voiced their expectation that the Union was to be res-
ponsible for any damages incurred by the Respondent in
the event of a violation of the no-strike agreement. No
agreement was reached on the Union's proposal at this
session.
At the November 14 meeting the Employer offered a
written "Work Stoppage" proposal (G.C. Exh. 4) as fol-
lows:
Section 1. Neither the International and Local
Unions nor their members , agents, representatives,
employees or persons acting in concert with them,
shall incite, encourage, or participate in any strike,
walkout, slow down, or other work stoppage of any
nature whatsoever during the life of this Agreement.
In the event of any strike, walkout, slow down or work
stoppage or threat thereof, the International and Local
Unions and their officers will do everything within
their power to end or avert the same including, but not
limited to, advising in person and/or in writing their
members and other unit employees that the work stop-
page is illegal and directing them to return to work
immediately.
Section 2 Neither the International and Local
Unions nor their members, agents , representatives,
employees or any person acting in concert with them,
will engage in any form of economic pressure by pub-
lications, advertisements, picketing, handbilling, or
otherwise, directed against the Employer, its owners or
managers, or the products or services of the Employer.
Section 3. The International and Local Unions fully
acknowledge that the primary purpose of the griev-
ance and arbitration procedures agreed to herein in
Articles X and XI is to insure industrial peace
throughout the period of this Agreement. In consider-
ation for the Employer's agreement to include these
procedures for the amicable resolution of all disputes
not specifically excluded herein which concern the in-
terpretation of this Agreement, the International and
Local Unions hereby agree to hold the Employer ab-
solutely harmless for all damages incurred by the Em-
ployer due to a breach of this Article, unauthorized or
otherwise, by individual members of either the Inter-
national or Local Unions and/or other unit employ-
ees.
Section 4. An employee authorizing , engaging in,
encouraging, sanctioning, recognizing or assisting any
strike, slow down, picketing or other concerted inter-
ference in violation of this Article, or who refuses to
perform services duly assigned to him in violation of
this Article, shall be subject to immediate dismissal
without recourse to the grievance and arbitration pro-
visions set forth in Articles X and XI. Whether an
employee did in fact authorize, engage in, encourage,
sanction, recognize or assist any strike, slow down,
picketing or other concerted interference in violation
of this Article, or refused to perform services duly as-
signed to him in violation of this Article, shall be sub-
ject to Articles X and XI, with the burden of proof
resting with the employee rather than the Employer.
Furthermore, allowing employees to work or return to
work shall not be considered condonation of their ac-
tivity in violation of this Article. Condonation shall be
effective only if given in writing to the employee or
employees involved or the International and Local
Unions.
Section 5. The Employer shall not cause or engage
in any lockout of its employees during the term of this
Agreement. The term "lockout" is hereby defined so
as not to include the discharge , suspension , termina-
tion, layoff, failure to recall or failure to return to
work of employees or subcontracting by the Employer
in the exercise of its rights as set forth in any provi-
sions of the Agreement.
Section 6 In the event of a violation of this Article
by any party because of a grievance or a dispute which
HALL TANK COMPANY 997
would otherwise properly be subject to resolution by
submission to the procedures set forth in Articles X
and XI, then that party shall be deemed to have
waived its right to process the grievance or dispute to
arbitration and the grievance or dispute shall be
deemed as having been finally settled in accordance
with the other party's last stated position with respect
thereto.
Section 7. The parties expressly agree that in the
event of a breach of the no-strike or no-lockout claus-
es that the injured party or parties may file suit in any
court of competent jurisdiction in the United States
and the defendant party or parties agree to submit to
the jurisdiction of the said court and will comply with
all requirements necessary to give such court jurisdic-
tion and all matters arising thereunder shall be de-
termined in accordance with the law and practice of
such court.
Section 4:
It is agreed that neither the Union or its officers will
be held liable or responsible for any unauthorized
picketing, boycotts, cessation of work, slow downs,
strikes, interference with the business of the Employer,
or other disruptive activities by any individual or
groups of individuals, provided that the Union or its
officers in no way instigated, authorized or ratified
such or participated therein, and provided that the
Union or its officers have complied with Section 3,
above.
Davis, in this short meeting, told the Union that the pro-
posal would not cover what the Company was insisting on.
At the next meeting on November 27, Respondent sub-
mitted another work stoppage proposal (Resp. Exh. 2) 2
which reads as follows:
Thereafter the parties discussed the sections of this arti-
cle in order. There was discussion without agreement on
sections 1 and 2, and the Union voiced its objections to
section 3. Davis explained that the quid pro quo for griev-
ance and arbitration provisions in the contract would be
the acceptance by the Union of the Company's work stop-
page proposal, including section 3. Davis also stated that
the Employer would not enter into any contract providing
for the resolution of disputes by arbitration unless the
Union accepted the Company "Work Stoppage" provision
including section 3.
At the November 21 meeting, the Union modified its
original "No strike-No lockout" proposal (G.C. Exh. 5)
by submitting a written "Work Stoppage" proposal as fol-
lows:
Section 1:
The parties hereto, recognizing that continuity of
production is for the mutual benefit of both parties,
that industrial conflict only results in injury to all par-
ties concerned and to the public welfare, and that the
provisions of this Agreement and the peaceful proce-
dures of the law, administrative bodies and the courts
make adequate provision and provide adequate reme-
dies for all purposes, agree that there shall be no lock-
out by the Employer or picketing, boycotts, cessation
of work, slow downs, strikes, interference with the
business of the Employer or other disruptive activities
by the employees or the Union during the life of this
Agreement for any reason whatsoever.
Section 2:
Any employee violating the provisions of Section 1
above shall be subject to discipline or discharge.
Section 3:
In the event of any action by employees in violation
of Section 1, above, the Union upon receiving notice
thereof, shall immediately notify the offending em-
ployees disavowing such action and issue orders in-
structing them to return to work and shall do or say
nothing inconsistent with such instruction.
EMPLOYER'S COUNTER PROPOSAL
(As indicated previously, Section 3 of Article XII or
other language accomplishing protection sought by
the Employer, is proposed in conjunction with the
Employer's willingness to agree to some form of griev-
ance and arbitration procedure. In other words, the
Employer does not insist upon its original Section 3,
Article XII language or the modification proposed
verbally on November 21, 1973, before it will enter
into a contract, but rather such language under a no-
strike clause is the quid pro quo for the inclusion of a
mandatory grievance and arbitration procedure and
no-lockout clause.)
ARTICLE XII. WORK STOPPAGE
Section 1. Neither the International and Local
Unions nor their members, agents, representatives,
employees or persons acting in concert with them,
shall incite, encourage, or participate in any strike,
walkout, slow down, or other work stoppage of any
nature whatsoever during the life of this Agreement.
In the event of any strike, walkout, slow down or work
stoppage or threat thereof, the International and Local
Unions and their officers will do everything within
their power to end or avert the same including, but not
limited to, advising in person and/or in writing their
members and other unit employees that the work stop-
page is illegal and directing them to return to work
immediately.
Section 2 Neither the International and Local
Unions nor their members, agents, representatives,
employees or any person acting in concert with them,
2 Davis testified affirmatively to submitting this document to the Union
at the November 27 session, and this testimony is supported by contempo-
raneously made notes While Monroe testifies he does not "recall" the docu-
ment being submitted , he does not deny it In these circumstances I credit
Davis that the document was submitted at the November 27 meeting
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will engage in any form of economic pressure by pub-
lications, advertisements, picketing, handbilling, or
otherwise, directed against the Employer, its owners or
managers, or the products or services of the Employer.
Section 3. Either
"The International and Local Unions fully ac-
knowledge that the primary purpose of the grievance
and arbitration procedures agreed to herein in Articles
X and XI is to insure industrial peace throughout the
period of this Agreement. In consideration for the
Employer's agreement to include these procedures for
the amicable resolution of all disputes not specifically
excluded herein which concern the interpretation of
this Agreement, the International and Local Unions
hereby agree to hold the Employer absolutely harm-
less for all damages incurred by the Employer due to a
breach of this Article, unauthorized or otherwise, by
individual members of either the International or Lo-
cal Unions and/or other unit employees."
or
"The International and Local Unions agree to be res-
ponsible, jointly and severally, for the actions of the
Employer's unit employees as defined in Art. I herein
and/or individual members of either union, regardless
of whether such actions are authorized by either the
International or Local Unions. The failure of the
Employer's unit employees and/or individual mem-
bers of either Union to abide by the provisions of this
Article shall constitute a violation by both the Interna-
tional and Local Unions of this contract."
Section 4. An employee authorizing, engaging in,
encouraging, sanctioning, recognizing or assisting any
strike, slow down, picketing or other concerted inter-
ference in violation of this Article, or who refuses to
perform services duly assigned to him in violation of
this Article shall be subject to immediate dismissal
without recourse to the grievance and arbitration pro-
visions set forth in Articles X and XI. Whether an
employee did in fact authorize , engage in , encourage,
sanction, recognize or assist any strike, slow down,
picketing or other concerted interference in violation
of this Article, or refused to perform services duly as-
signed to him in violation of this Article, shall be sub-
ject to Articles X and XI, with the burden of proof
resting with the employee rather than the Employer.
Furthermore, allowing employees to work or return to
work shall not be considered condonation of their ac-
tivity in violation of this Article. Condonation shall be
effective only if given in writing to the employee or
employees involved or the International and Local
Unions.
Section 5 The Employer shall not cause or engage
in any lockout of its employees during the term of this
Agreement. The term "lockout" is hereby defined so
as not to include the discharge, suspension, termina-
tion, layoff, failure to recall or failure to return to
work of employees or subcontracting by the Employer
in the exercise of its rights as set forth in any provision
of the Agreement.
Section 6. In the event of a violation of this Article
by any party because of a grievance or a dispute which
would otherwise properly be subject to resolution by
submission to the procedures set forth in Articles X
and XI, then that party shall be deemed to have
waived its right to process the grievance or dispute to
arbitration and the grievance or dispute shall be
deemed as having been finally settled in accordance
with the other party's last stated position with respect
thereto.
Section 7. The parties expressly agree that in the
event of a breach of the no-strike or no-lockout claus-
es that the injured party or parties may file suit for
damages in any court of competent jurisdiction in the
United States, and the defendant party or parties
agree to submit to the jurisdiction of the said court
and will comply with all requirements necessary to
give such court jurisdiction, and all matters arising
thereunder shall be determined in accordance with the
law and practice of such court.
There was little discussion of the work stoppage issue at
either the December 4, 11, or December 17 sessions, apart
from explanations made to the Federal Mediator in atten-
dance to bring him abreast of the negotiations with respect
to the work stoppage issue . The basic positions of the par-
ties on the work stoppage issue remained unchanged.
At the January 10, 1974 session , Davis asked Monroe if
the Union would be willing to consider a whole harmless
clause in the proposed no strike clause limiting the Union's
liability to $10,000. Mr. Monroe responded that the Union
would not agree even if the amount were $1. The matter of
impasse was raised at this meeting when Davis suggested in
a general way that an impasse had been reached by the
parties. Also at this meeting Monroe requested Davis to
submit the Respondent's final proposals with respect to
work stoppage which were submitted in writing to the
Union on February 4 (General Counsel Exhibit 7) and
read as follows:
ARTICLE XII. WORK STOPPAGE
Section 1. Neither the International and Local
Unions nor their members, agents, representatives,
employees, or persons acting in concert with them,
shall incite, encourage, or participate in any strike,
walkout, slow down, or other work stoppage of any
nature whatsoever during the life of this Agreement.
In the event of any strike, walkout, slow down, or
work stoppage or threat thereof, the International and
Local Unions and their officers will do everything
within their power to end or avert the same including,
but not limited to, advising in person and/or in writ-
ing their members and other unit employees that the
work stoppage is illegal and directing them to return
to work immediately.
Section 2 Neither the International and Local
Unions nor their members, agents, representatives,
employees, or any person acting in concert with them,
will engage in any form of economic pressure by pub-
HALL TANK COMPANY
lications, advertisements, picketing, handbilling, or
otherwise, directed against the Employer, its owners or
managers, or the products or services of the Employer.
Section 3. Either
"The International and Local Unions fully ac-
knowledge that the primary purpose of the grievance
and arbitration procedures agreed to herein in Articles
X and XI is to insure industrial peace throughout the
period of this Agreement. In consideration for the
Employer's agreement to include these procedures for
the amicable resolution of all disputes not specifically
excluded herein which concern the interpretation of
this Agreement, the International and Local Unions
hereby agree to hold the Employer absolutely harm-
less for all damages, but not exceeding Seventy-five
Thousand Dollars ($75,000), incurred by the Employ-
er due to a breach of Sections 1 or 2 of this Article,
unauthorized or otherwise, by either individual mem-
bers of the International or Local Unions or by other
unit employees as defined in Article I herein."
or
"The International and Local Unions agree to be res-
ponsible, jointly and severally, for the actions of the
Employer's unit employees as defined in Article I
herein and/or individual members of either union, re-
gardless of whether such actions are authorized by
either the International or Local Unions. The failure
of the Employer's unit employees and/or individual
members of either Union to abide by the provisions of
this Article shall constitute a violation by both the
International and Local Unions of this contract. How-
ever, it is understood that the International and Local
Unions' monetary liability under this provision shall
be limited to an amount not to exceed Seventy-five
Thousand Dollars ($75,000)."
Section 4. An employee authorizing, engaging in,
encouraging, sanctioning, recognizing or assisting any
strike, slow down, picketing or other concerted inter-
ference in violation of this Article, or who refuses to
perform services duly assigned to him in violation of
this Article shall be subject to immediate dismissal
without recourse to the grievance and arbitration pro-
visions set forth in Articles X and XI except to the
extent hereinafter provided. Whether an employee did
in fact authorize, engage in, encourage, sanction, rec-
ognize or assist any strike, slow down, picketing or
other concerted interference in violation of this Arti-
cle, or refused to perform services duly assigned to
him in violation of this Article, shall be subject to Ar-
ticles X and XI, with the burden of proof resting with
the employee rather than the Employer. Furthermore,
allowing employees to work or return to work shall
not be considered condonation of their activity in vio-
lation of this Article. Condonation shall be effective
only if given in writing to the employee or employees
involved or the International and Local Unions.
Section 5. The Employer shall not cause or engage
in any lockout of its employees during the term of this
Agreement. The term "lockout" is hereby defined so
999
as not to include the discharge, suspension, termina-
tion, layoff, failure to recall or failure to return to
work of employees or subcontracting by the Employer
in the exercise of its rights as set forth in any provision
of the Agreement.
Section 6. In the event of a violation of this Article
by any party because of a grievance or a dispute which
would otherwise properly be subject to resolution by
submission to the procedures set forth in Articles X
and XI, then that party shall be deemed to have
waived its right to process the grievance or dispute to
arbitration and the grievance or dispute shall be
deemed as having been finally settled in accordance
with the other party's last stated position with respect
thereto.
Section 7. The parties expressly agree that in the
event of a breach of the no-strike or no-lockout claus-
es that the injured party or parties may file suit for
damages in any court of competent jurisdiction in the
United States, and the defendant party or parties
agree to submit to the jurisdiction of the said court
and will comply with all requirements necessary to
give such court jurisdiction, and all matters arising
thereunder shall be determined in accordance with the
law and practice of such court. (As indicated previous-
ly, Section 3 of Article XII, or other language accom-
plishing protection sought by the Employer, is pro-
posed in conjunction with the Employer's willingness
to agree to some form of grievance and arbitration
procedure. In other words, the Employer does not in-
sist upon its original Section 3, Article XII language or
the modified language also included herein, before it
will enter into a contract, but rather such language
under a no-strike clause is the quid pro quo for the
inclusion of a mandatory grievance and arbitration
procedure and no-lockout clause.)
Pursuant to a telephone conversation sometime thereaf-
ter, the parties agreed to meet on February 19. Davis also
testified that during this conversation he asked Monroe if
he would be willing to consider a whole harmless clause
limiting union liability for the actions of union members
rather than for all unit employees and Monroe said he
would not be willing to consider it. Monroe testified he
only recalls this matter being discussed at the February 19
meeting and that he took the position that he would not
accept any proposal which required any "indemnity" from
the Union.
At the February 19 meeting, the Union reiterated that it
was opposed to union liability in any amount and, as noted
above, told the Company that any such proposal was unac-
ceptable even if union liability were limited in amount and
further limited to misconduct by union members. Davis
restated the Respondent's position that the quid pro quo for
grievance and arbitration machinery was the proposed
work stoppage clause. At the end of this session Monroe
expressed his intention to take the matter to the National
Labor Relations Board.
Thereafter, on October 22, 1974, after the complaint
herein had issued, Monroe wrote to Davis suggesting fur-
ther negotiations if the Employer had changed its position
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(G.C. Exh. 8). Monroe responded by letter dated April 24,
1974 (G.C. Exh. 9), stating, inter alia, "However, if you are
only willing to meet if the Company will withdraw its pro-
posal regarding Section 3 of the Work Stoppage Article, we
are not prepared at this time to withdraw our proposal.
Nevertheless we are quite willing to meet and discuss any
reasonable alternatives to any of our proposals. According-
ly, please contact me as soon as possible regarding a date
you would be available for the resumption of negotia-
tions." The letter also states, "Notwithstanding the conten-
tion that one of the clauses in our work stoppage proposal
consists of a non-mandatory subject for bargaining, we
have not-as you state in your letter-conditioned accep-
tance of such clauses `before collective bargaining agree-
ment could be reached'. To the contrary we have stated on
numerous occasions, and our written proposal so reflects,
that we are willing to enter into an agreement that does not
contain a work stoppage article if the quid pro quo for such
an article is likewise deleted, namely mandatory arbitration
procedures."
B. Discussion and Analysis
It is clear from those undisputed facts set forth above
that the Employer takes the position that it has the right to
insist on the union liability provisions (sec. 3) of its work
stoppage proposals. The theory of Respondent's position is
that the work stoppage provisions, including the union lia-
bility sections, are mandatory bargaining subjects.
Respondent is quite correct in its assertion that work
stoppage provisions are, in general, mandatory bargaining
subjects. This is true since obviously the matter of work
stoppages are clearly encompassed within the meaning of
the language "other terms and conditions of employment"
under the provisions of Section 8(d). However, the issue in
the instant case is more specific. The issue to be decided
herein is whether or not the various union liability provi-
sions contained within the work stoppage proposals are
mandatory or permissive bargaining subjects. I conclude
that none of the union liability provisions in the instant
case are mandatory bargaining subjects.
A review of available precedent in this area makes it
clear that terms and conditions of employment within the
meaning of Section 8(d) are those matters which relate pri-
marily to the working relationship between the employer
and its employees. Indemnity provisions, performance
bonds, "save harmless" clauses, whether limited or abso-
lute, and union liability provisions do not address them-
selves to this relationship, but rather concern themselves
with the relationship between union and employer. More
precisely, they spell out the procedures for legal redress
available to an employer for any breach of the no-strike
provisions of a contract. Accordingly, I conclude that the
union liability provisions in the instant case are unrelated
to any term or condition of employment of Respondent's
employees and hence are permissive rather than mandato-
ry bargaining subjects. N.L.R.B. v. Wooster Division of
Borg-Warner Corporation, 356 U.S. 342, (1958); Radiator
Specialty Company, 143 NLRB 350, (1963); Arlington As-
phalt Company, 136 NLRB 742, (1962).
Respondent also argues that, even assuming that the
union liability provisions are nonmandatory bargaining
subjects, Respondent is not insisting upon such provisions
as a condition to the execution of an agreement . To sup-
port this argument, Respondent asserts that its insistence
upon a union liability provision is simply the quid pro quo
for any grievance and arbitration provisions in the contract
and that it was willing to enter into a contract without any
work stoppage provision if the contract also excluded
grievance and arbitration provisions. In evaluating this ar-
gument , we must proceed from the premise, previously
concluded, that the union liability provisions are nonman-
datory bargaining subjects. Further, it is my view, support-
ed by authority and conceded by Respondent in its brief,
that grievance and arbitration provisions are mandatory
bargaining subjects inasmuch as they deal with employees'
conditions of employment. See Crown Coach Corporation,
155 NLRB 625, 631, (1965). The Respondent's avowed
willingness to enter into a contract excluding both the
mandatory and nonmandatory subjects is not compelling
since it does not absolve the Respondent of its misconduct
herein, to wit, insisting on a permissive bargaining subject,
the union liability clause of the work stoppage provision, as
the quid pro quo for a provision providing for the grievance
and arbitrations. The Respondent's violation herein is
unaffected by its willingness to enter into a contract on
those terms.
With respect to the matter of impasse, it is clear that
impasse has not been reached as to all of the outstanding
contract items. There remain several unresolved issues, in-
cluding wages. The 8(a)(5) violation herein, however, is not
predicated upon any impasse theory. The violation herein
consists of Respondent' s insisting , during bargaining, upon
the inclusion in the contract of a nonmandatory bargaining
provision (union liability) as a condition precedent to sign-
ing any contract containing mandatory contract provisions
(grievance and arbitration provisions).
Respondent further contends that the Union initially
raised the matter of union liability by proposing limitations
on the Union's liability for unauthorized violations of the
work stoppage provisions of the contract. It is true that the
Union did make such an initial proposal at the first session
on November 5, 1973, and later modified this proposal on
November 21, 1973, in response to the Respondent's pro-
posal. However, unlike Respondent, the evidence does not
show that the Union was insisting upon the inclusion of
such a permissive contract provision as a condition to the
execution of a contract.; The Respondent, on the other
hand, did so insist by taking the position that it would not
execute any contract containing grievance and arbitration
provisions unless the contract also contained a union liabil-
ity provision. This, as concluded above, is the 8(a)(5) mis-
conduct engaged in by Respondent.
3 No comparable unfair labor practice charges have been filed against the
Union based on its insistence on any nonmandatory union liability provi-
sion in the contract
HALL TANK COMPANY
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
which I find necessary to effectuate the policies of the Act.
Having found that Respondent has refused to bargain
collectively with the Union, as required by the Act, by in-
sisting, as a condition to entering into an agreement con-
taining provisions for employee grievance and arbitration,
that the Union agree to a financial liability provision for
violations of the no-strike provisions of the contract, I shall
recommend that Respondent, upon request, bargain collec-
tively with the Union, and, if an understanding is reached,
embody such understanding in a signed agreement. I shall
further recommend that Respondent cease and desist from
insisting on any of the union liability provisions as set forth
above.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production employees, maintenance employees,
leadmen and truckdrivers employed at Respondent's
North Little Rock, Arkansas plant, but excluding office
clerical employees, guards and supervisors as defined in
the Act, constitute an appropriate unit of the Respondent's
employees for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The Union at all times material herein has been and
now is the exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing on and after November 14, 1973, to bar-
gain collectively with the Union as the exclusive represen-
tative of the employees in the aforesaid unit, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, I hereby
issue the following recommended:
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
ORDER4
1001
Respondent, Hall Tank Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Aluminum
Workers International Union, AFL-CIO, Local No. 232,
as the exclusive representative of all the Employees in the
appropriate unit by insisting as a condition to the execu-
tion of a collective-bargaining agreement containing griev-
ance and arbitration provisions, and/or other mandatory
bargaining subjects, that the Union and/or its Internation-
al affiliate agree to any union financial liability provision
designed to reimburse Employer for violations of the no-
strike provisions of the contract.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization to form, join, or assist the above-named
Union or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection or
to refrain from any or all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Aluminum
Workers International Union, AFL-CIO, Local No. 232,
as the exclusive representative of all employees in the ap-
propriate unit and, if an understanding is reached, embody
such understanding in a signed agreement. The appropriate
bargaining unit is:
All production employees, maintenance employees,
leadmen and truckdrivers employed at Respondent's
North Little Rock, Arkansas plant, but excluding of-
fice clerical employees, guards and supervisors as de-
fined in the Act.
(b) Post at its plant in North Little Rock, Arkansas, cop-
ies of the attached notice marked "Appendix." 5 Copies of
said notice, on forms to be provided by the Regional Di-
rector for Region 26, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 26, in writ-
ing, within 20 days from the date of receipt of this Order,
what steps have been taken to comply herewith.
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
5In 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request , bargain with Aluminum
Workers International Union, AFL-CIO, Local No.
232, as the exclusive representative of all our employ-
ees in the bargaining unit described below with respect
to rates of pay, wages , hours of employment, and
other terms and conditions of employment and, if an
understanding is reached , embody such understanding
in a signed agreement. The bargaining unit is:
Employer's North Little Rock, Arkansas plant, but
excluding office clerical employees, guards and su-
pervisors as defined in the Act
WE WILL NOT refuse to bargain collectively with the
above-named Union if requested , by insisting, as a
condition to reaching an agreement , that the above-
named Union agree to a union financial liability pro-
vision as reimbursement for any breach of a contrac-
tual no-strike provision by the above-named Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization to form, loin, or assist
the above-named Union or any other labor organiza-
tion, to bargain collectively through representatives of
their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any
or all such activities.
All production employees, maintenance employees,
leadmen and truckdrivers employed at the HALL TANK COMPANY