Hickinbotham Bros., Ltd.

National Labor Relations Board - Board Decisions

Jan 13, 1981

254 N.L.R.B. 96 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hickinbotham Bros. Ltd. and General Teamsters
Local No. 439, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 32-
CA-2438
January 13, 1981
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 17, 1980, Administrative Law
Judge Earldean V. S. Robbins issued the attached
Decision in this proceeding. Thereafter, the Gener-
al Counsel filed exceptions and a supporting brief,
and Respondent filed a brief in answer to the Gen-
eral Counsel's exceptions.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her 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 the complaint be, and it hereby
is, dismissed in its entirety.
I In adopting the findings herein, Member Jenkins does not rely on
Times-Herald. Inc., 249 NLRB 13 (1980), cited in the Administrative Law
Judge's Decision in par. 4 of the section entitled "Conclusions," in which
he concurred.
The General Counsel has implicitly excepted to certain credibility find-
ings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing her findings.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was tried before me in Stockton, California, on
May 29, and 30, 1980. The original charge was filed by
General Teamsters Local No 439, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, herein called the Union,
and served on Hickinbotham Bros., Ltd., herein called
Respondent, the Company, or the Employer, on January
28, 1980. The first amended charge was filed by the
254 NLRB No. 22
Union and served on Respondent on March 6, 1980. A
complaint issued on March 11, 1980. An amended com-
plaint, which issued on May 14, 1980, alleges that Re-
spondent violated Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, herein called the Act.
The principal issues herein are whether by certain bar-
gaining proposals Respondent refused to bargain in good
faith with the Union, and whether such conduct pro-
longed a strike by Respondent's employees.
Upon the entire record, including my observation of
the witnesses and after due consideration of the briefs
filed by the parties, I make the following:
FINDINGS OF FACT
I. COMMERCE
Respondent, a California corporation with an office
and place of business in Stockton, California, is engaged
in the manufacture of various fabricated steel products.
In the course and conduct of its business operations
during the 12-month period preceding the issuance of the
complaint herein, Respondent sold and shipped goods
and services valued in excess of $50,000 directly to cus-
tomers located outside the State of California, and pur-
chased and received goods and services valued in excess
of $50,000 directly from suppliers located outside the
State of California.
The complaint alleges, Respondent admits, and I find
that Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. I.ABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Negotiations and Related Events
Respondent has plants in Stockton, Fresno, Sacramen-
to, and Santa Rosa and a small branch in Modesto. The
employees in the Stockton, Fresno, and Sacramento
plants are represented by various locals of the Teamsters
Union. The plant involved herein is the Stockton plant.
Respondent and the Union have been parties to succes-
sive collective-bargaining agreements for 20 or 25 years
covering a unit of machine operators, machine operators
helpers, shipping and receiving clerks, warehouse per-
sons, truckdrivers, and utility persons at the Stockton
plant. The last such agreement expired on September 30,
1979.1 The first session of the current negotiation was
held on September 10. Union Business Representative R.
B. Trammell was chief spokesman for the Union and Lee
Brewer labor consultant, and Donald Hickinbotham, Re-
spondent's vice president, were chief spokesman for Re-
spondent.
All dates herein will be in 1979 unless otherwise indicated.
96
HICKINBOTHAM BROS. LTD.
At this meeting, the Union submitted its proposal,
which sought to modify the existing agreement in several
respects of significance herein:
1. To change the "Seniority and Layoff' clause from
one requiring layoff by seniority only if the Employer
determines ability and efficiency to be relatively equal to
one requiring layoff by seniority; and to delete the sen-
tence reading, " In an arbitration, the arbitrator shall not
substitute his judgment for that of the Employer"; and to
change from a provision requiring 90 consecutive days of
unemployment/failure to report for work within 36
hours after a recall notification to break seniority to one
requiring 6 months and 72 hours, respectively.
2. To change the "Job Bidding" clause to delete the
exclusion from bidding of employees with less than I
year of seniority and of those who have successfully bid
on a job within the preceding 12 months and further to
delete the provision that "any bidder who is awarded a
job but fails to qualify during his trial period shall be
deemed a successful bidder."
3. To increase Respondent's pensions contribution by
14 cents per hour per year for the term of the agreement.
4. To delete the no-strike, no-lockout clause.
5. To change the grievance procedure from one
where, in the event informal resolutions were not
achieved, an adjustment board (apparently ad hoc) will
be convened and if no majority resolution were achieved
by the adjustment board, then the matter could be taken
to arbitration to one requiring that matters not informally
resolved would be submitted to an arbitration board (ap-
parently permanent for the life of the agreement) and, if
no majority resolution is achieved, then a fifth neutral ar-
bitrator would be called in. 2
6. To add to the union-security clause a provision re-
quiring Respondent to give the Union notification of
new hires within 5 days.
7. To grant a wage increase of $1 per hour per year
for the term of the agreement; to establish an "open end"
cost-of-living allowance; to increase the wage differential
between certain classifications; and add a new provision
that "no member will suffer a reduction in pay through
the signing of this Agreement."
The Union's proposals were noted under "Terms of
Agreement," subject to negotiations, and under wages
that it will later submit proposed modifications as to job
classifications, and ended with the following statement:
The Union reserves the right to make any additions,
amendments, corrections or deletions to the forego-
ing proposals during the course of negotiations as it
may deem necessary.
At this first negotiation session the Union explained its
proposal item by item. Brewer's response was directed
primarily at the pension plan. The existing agreement
provided for contributions to the Western Conference of
Teamsters Pension Fund. Brewer questioned the financial
status of the fund and requested certain documents relat-
ed thereto. It was agreed that all agreements on individ-
2 Both the adjustment board and the arbitration board were to be con-
stituted of two members appointed by the Union and two members ap-
pointed by Respondent.
ual provisions would be tentative until an entire collec-
tive-bargaining agreement was reached and that there
would be no agreement unless agreement was reached on
all provisions. A second meeting was scheduled for Oc-
tober 4.
On October 4, Respondent submitted its proposal for a
3-year agreement.s Items of significance herein included:
1. The seniority and layoff clause was the same as the
recently expired agreement except the probationary
period was increased from 30 to 45 days.
2. The "Job Bidding" clause was the same as the re-
cently expired agreement except (a) the word "sole" was
inserted before "judgment" in that portion providing, "If
in the judgment of the Employer, the qualification[s] and
dependability of the bidders and applicants are relatively
equal [seniority will prevail]"; and (b) the only exclusion
from eligibility for job bidding read, "no employee[s]
shall be eligible to bid until they have attained regular
status [in] their current classification. 4 However, the Em-
ployer may move or promote employees as necessary
without regard to this exception."
3. Substitution of the pension and savings and health
and welfare plan then in effect at other of Respondent's
facilities for the Western Conference of Teamsters plan
was provided for in the recently expired agreement.
4. Added was a provision that the Union will be joint-
ly responsible for any actions of the job steward beyond
those set forth in the agreement (the investigation and
presentation of grievances, and the transmission of mes-
sages and information authorized by the Union which do
not involve work stoppages or other interference with
Respondent's business).
5. There was substitution of a provision leaving union
membership to the discretion of the individual employee
for the one in the recently expired agreement requiring
union membership after 31 days of employment.
6. There was a provision for a grievance committee of
the same size and to be chosen in the same manner as the
arbitration board of the old agreement, but, in the event
the grievance was not resolved by the committee, the
matter would be referred to an impartial arbitrator;
whereas in the old agreement the four members of the
arbitration board selected a fifth member and resolution
required a decision by a majority of the five.
7. A subsection was added to the grievance's section
limiting the authority of the arbitrator, which reads:
H. Arbitrator's Authority: The Arbitrator shall be
empowered except as his powers are limited below
or by the submission agreement, only to make a de-
cision in cases of alleged violation of rights express-
ly accorded by the Agreement, or written supple-
ments thereto, if any.
The limitation of the power and discretion of the
Arbitrator shall be as follows:
3 The expiration date was September 30. 1982. The beginning date was
left blank.
4 The meaning of this phrase is unclear. Apparently it was intended as
a compromise since the Union had proposed deleting all exclusions.
97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. He shall have no power to add to, or substract
from or modify any of the provisions of this, or
supplemental agreements, if any.
2. He shall have no power to establish wage
scales or change any existing wage rates except in
the case of new classification.
3. He shall have no power to substitute his dis-
cretion for that of the Employer or the Union
where either party has expressed retained discretion
or is given discretion by the specific terms of this
Agreement; except that where he finds a disciplin-
ary layoff or discharge results from a manifestly ar-
bitrary exercise he may make appropriate modifica-
tions consistent with the terms of this Agreement.
4. He shall have no power to decide any ques-
tion, which, under this Agreement, is within the
right of the Employer or the Union to decide. In
rendering decisions, the Arbitrator shall have due
regard for the responsibilities and the reserved
rights of the parties and shall so construe this
Agreement so that there will be no interference
with the exercise of such rights and responsibilities,
except as those rights are expressly conditioned or
limited by specific terms of this Agreement.
5. All awards of back wages shall be limited to
the amount of wages the employee would otherwise
have earned from his employment with the Em-
ployer less any unemployment or other compensa-
tion f6r work.
The proposal also provided for an expedited arbitra-
tion procedure (a hearing within 24 hours and bench de-
cision or, if arbitrator desires, a decision no later than 24
hours following a hearing) where it is alleged that there
is a sympathy strike or slowdown in violation of the no-
strike clause.
Respondent's proposal also added a management-rights
clause which reads:5
Section XVIII. Management Rights
This Agreement is not intended to interfere with,
bridge, or limit the right of the Company to manage
its business and direct its employees in their em-
ployment.
The Company reserves and retains the sole and
exclusive right to; the management of the business
and the direction of the working forces, including
but not limited to the right to plan and direct oper-
ations, schedule hours of work, subcontract any or
all work to outside firms whether on or off the
premises, control volume of production; to add or
drop product lines; to establish or continue policies,
practices, or procedures; for the conduct of the
business; and from time to time to change or abolish
such policies, practices, or procedures; to determine
the number, location or relocation, method and
types of its operation of plants or to discontinue
their performance by employees of the Company; to
hire, suspend, layoff, discharge for proper cause,
s This is the management-rights clause which is contained in the col-
lective-bargaining agreements covering the Fresno and Sacramento
plants.
transfer or release from duty because of lack of
work on other legitimate reasons; to study or intro-
duce new approved production methods or facilities
to establish or maintain rules and regulations cover-
ing employees and retain all of the rights not spe-
cifically limited by this Agreement that are custom-
arily considered management functions.
The no-strike, no-lockout clause was changed from
one which merely provided that "during the term of this
Agreement there shall be no strike by the union or lock-
out by the Employer" to one which reads:
Section XII. No Strike-No Lockout
1. During the period of the Agreement there
shall be no strikes, work stoppages, slowdowns,
picketing or other interference with the operations
of the Company.
2. There shall be no lockouts during the term of
this Agreement. Temporary shutdowns for econom-
ic reasons shall not be considered lockouts.
3. No officer or representative of the Union shall
authorize, instigate, aid or condone any strikes, and
no employee shall participate in any such strikes,
work stoppages, slowdowns, picketing or similar in-
terference during the time of this Agreement. The
Union must use every possible means to prevent its
members from engaging in such activities.
At the October 4 meeting, Brewer, who had died in
the interval, was replaced by Walter Plumb as Respon-
dent's cospokesman. Both the Union's and Respondent's
proposals were discussed item by item at the October 4
and 5 meetings, as to the right of Respondent to deter-
mine relative ability and efficiency and that seniority be
considered only when ability and efficiency are equal.
Hickinbotham said Respondent had taken a 15-week
strike in 1964 to preserve that right and felt very strong-
ly that it would not relinquish it.
According to Hickinbotham, the rationale behind its
open-shop proposal arose out of an incident during the
previous year when Respondent required certain lead
employees who were in the bargaining unit to discipline
an employee for reporting to work late or intoxicated.
The Union took the position that, if its members exer-
cised this responsibility, they would be subject to fines.
Hickinbotham took the position that these employees
were not supervisors but were essentially workmen who
were properly included in the unit. He explained that the
open-shop proposal was intended to give an individual
the opportunity to not belong to the Union and to thus
avoid the possibility of being fined.
Although some agreement had been reached and and a
number of issues remained unresolved at the end of the
October 5 session, it was apparent that the principal
issues were seniority and layoff, job bidding, and a pen-
sion plan. These have remained the principal issues
throughout negotiations along with job classifications,
which became a major issue on October 12 when Re-
spondent made its economic proposal. According to
Trammell, the Company's proposal could start an em-
98
HICKINBOTHAM BROS. LTD.
ployee at the bottom of the classification and it would
take several years, or never, to draw top pay.
At the October 12 negotiation session, Hickinbotham
explained in some detail why Respondent proposed
changing to its own pension plan. He stated that the ac-
tuarial report of the Teamsters pension plan revealed
many shortcomings. He showed the report to the Union
and Respondent analyzed it in some detail. The Hickin-
botham plan has been in effect for a number of years for
certain of Respondent's employees. Hickinbotham said
that, although Respondent's plan was a few cents
cheaper as to contributions, it was actually sounder than
the Teamsters plan and the benefits were fairer since
contributions were determined by gross earnings and the
benefits varied according to earnings. Further, Respon-
dent's plan includes a profit-sharing plan.
Hickinbotham stated that for several years employees
have disagreed as to the desired allocation of available
fringe benefit dollars, some wanting more allocated to
pensions and others wanting it allocated to wages. Thus,
Hickinbotham said, Respondent felt that an equitable so-
lution would be the additional benefit of a profit-sharing
plan whereby an employee could chose whether he
wanted to contribute to such a plan with his contribution
being matched by Respondent. Hickinbotham said he felt
that there would be better unity during future negotia-
tions if an employee could make his own determination
as to how much went into the fund.
Respondent submitted its economic package on Octo-
ber 12. Hickinbotham and Plumb gave comparisons of
Respondent's proposal with the wage scale of its major
competitors and stated that Respondent's wage scales
was comparable to or substantially ahead of those of its
competitors. This session lasted from about 10 a.m. on
October 12 to 1:30 a.m. on October 13 in an effort to
conclude an agreement. Respondent made several signifi-
cant concessions.
Trammell reviewed the Union's position, stating that
seniority, job bidding, pension plan, and job classification
were items on which there would have to be some
movement before a contract could be concluded. At the
conclusion of the meeting, Trammell said that the con-
tract was totally unacceptable, that he could not recom-
mend it to the membership, and that there probably
would be a strike. Respondent promised to provide later
in the day a written proposal reflecting the agreements
reached that day and constituting Respondent's "best
offer."
Respondent's October 13 proposal differed from its
October 4 proposal in that it provided for a term retro-
active to October 1, contained a provision requiring
membership in the Union after 31 days with 5 days noti-
fication to the Union of new hires, reduced the proba-
tionary period from 45 to 20 days, increased from 90 to
180 the number of consecutive days of unemployment re-
quired to break seniority, changed the exclusion for eligi-
bility to bid on jobs from "no employee shall be eligible
to bid until they have attained regular status in their cur-
rent classification" to "no employee shall be eligible to
bid until they have attained regular status [apparently
this means completed the probationary period] and have
completed forty-five (45) working days in their current
classification."
The grievance procedure was worded differently but
substantively is about the same. The limitation of the au-
thority of the arbitrator was changed to read:
D. The arbitrator has no authority to modify, de-
tract from or alter the provisions of this contract,
nor to substitute his discretion for managements' de-
cisions. This shall not, however, prevent the arbitra-
tor from determining whether or not the Employer
has justifiable cause for any discharge or disciplin-
ary action which may be protested under this sec-
tion.
The expedited arbitration clause was dropped.
Respondent's October 13 proposal also contained in
the no-strike, no-lockout clause, the following protec-
tion-of-rights clause which had earlier been proposed by
the Union:
3. It shall not be a violation of this Agreement,
and it shall not be cause for discharge or disciplin-
ary action in the event any employee refuses to
enter upon any real property involved in a lawful
primary labor dispute, or refuses to go through or
work behind any lawful primary picket line of the
Union party of this Agreement, and including pri-
mary picket lines at the Employer's place of busi-
ness, approved by Local No. 439 and Joint Council
of Teamsters No. 38.
Respondent's-management rights proposal was
changed to read:
Section XIII-Management Rights
The Employer retains the exclusive right to
manage the business, direct, control, and schedule
its operation and work force and to make any and
all decisions affecting the business, whether r not
specifically mentioned herein and whether or not
heretofore, exercised, and in all respects carry out
the ordinary and customary functions of manage-
ment, except as specifically altered or modified by
the express terms of this Agreement.
Also, the following new provision was added:
Section XIV-Rate Adjustment
Where new types of equipment and/or operations
for which rates of pay are not established by this
Agreement are put into use during the life of this
Agreement, rates governing such operations shall be
the subject of negotiations between the parties.
Rates agreed upon will be effective as of the date of
such new equipment or operations are put into use.
The proposed wage increase ranged at the top of each
classification from 45 to 54 cents an hour, except that the
utility person rate was substantially lower than in the re-
cently expired agreement. However, the proposal con-
tained a new provision which reads: "No member shall
99
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffer a reduction in pay as a result of the signing of this
Agreement." A new provision, initially proposed by the
Union, was included which provides that "non-bargain-
ing unit supervisors may perform bargaining unit work
only in emergency or training situations."
On October 14, the union membership rejected Re-
spondent's "best" offer. Although Trammell recommend-
ed against it, the membership also voted to strike. The
strike commenced on October 14 or 15. All of the ap-
proximately 63 unit employees went out on strike. Short-
ly thereafter, Respondent resumed operations. About 2
weeks after the strike commenced, Respondent began
hiring replacements. By November 14, 6 strikers had re-
turned to work and 26 replacements had been hired. As
of this time, by using management and supervisory per-
sonnel and the reduced complement of employees, and
with subcontracting, Respondent had achieved almost
full production.
The first negotiation session after the strike com-
menced was on October 16. The Union's position
changed somewhat as to job bidding and wages. Princi-
pally, the change was that training for an upgraded job
would be by seniority and that the wage increase would
be 70 cents the first year and 50 cents for each of the
seoond and third years and a 12-cent cap on cost of
living. No agreement was reached and the principal
issues remained the same. Both the Union and Respon-
dent agreed that they reached an impasse at this meeting.
The next meeting was October 29. The meeting was con-
ducted by a Federal mediator. The Union altered its po-
sition somewhat but no agreement was reached.
The next meeting was on November 14. Respondent
submitted a new proposal. In this proposal Respondent
reverted to its original proposal that the matter of union
membership shall be left to the sole and unfettered
choice of each individual employee. The term of the
agreement was changed from 3 years to 1 year. The 5-
day notification to the Union of new hires was deleted.
Also deleted was the provision that no employee would
suffer a reduction in wages. Also the provision permit-
ting supervisors to perform bargaining unit work was
changed from one restricting such work only in emer-
gency and training situations to one without restrictions.
Respondent's seniority and layoff proposal increased
the probationary period to 60 days and reduced back to
90 days the number of consecutive days of unemploy-
ment required to break seniority. Also included were the
sympathy strike expedited arbitration procedure and the
limitation on the arbitrator's authority provisions which
were the same as those contained in Respondent's Octo-
ber 4 proposal but dropped from its October 13 proposal.
The provision regarding the employees' right to honor
primary picket lines was also dropped as was the rate-of-
adjustment provision. Respondent also returned to its
October 4 management-rights proposal.
According to Hickinbotham, the management-rights
clause merely spells out the rights traditionally exercised
by Respondent. However, also according to Hickin-
botham, the Union had been giving Respondent some
difficulty in this regard, one of Trammell's frequent
statements being, "if you don't see it you ain't got it." It
was therefore important to Respondent that these rights
be spelled out. Respondent was particularly concerned
about subcontracting. 6 It had always subcontracted fre-
quently but had primarily done so when machinery was
required with a capacity significantly different from that
of Respondent's. However, during the strike, additional
work was subcontracted and Respondent found that
some of its preproduction and production processes
could be done cheaper by subcontractors.
Another reason Respondent was interested in a de-
tailed management-rights clause was that it wanted the
freedom to institute certain changes. In August, Respon-
dent employed a team of consultants to help Respondent
streamline its operations in the management of material
flow, operations, sequencing, and paper flow. In Novem-
ber, the consultants made various recommendations
which included the alteration of work flow, operational
production matters, paper flow, and operations schedul-
ing. Respondent was concerned with its ability to imple-
ment these recommendations as to altering jobs and de-
veloping new jobs since its freedom to do so had been
challenged by the Union in the past. As to the open-shop
clause, some of the replacements had begun to express
their desire that they not be required to join the Union.
However, Respondent's representative did state during
the negotiations that it was willing to accept something
closer to a maintenance-of-membership clause. As to the
I-year term, this was intended to dispose of the cost-of-
living increase issue.
On November 19, the Union submitted a proposal in
which it agreed to the Employer's October 13 proposal
in its entirety with two exceptions. The Union continued
to propose the Teamsters pension plan but reduced the
increase in the Employer's contribution from 14 to 7
cents; and a revised wage proposal was to be submitted
through the Federal mediator. Respondent continued to
adhere to its November 14 proposal.
There was no substantial progress made at this meeting
as to the major items separating the parties. They did
discuss whether, if the strikers were to return to work
and agreement were reached, allegations of misconduct
would be dropped. Plumb said he was concerned about
the replacements and that Respondent would not remove
them in favor of returning strikers; thus the strikers
would be placed on a preferential hiring list, even if they
concluded a contract.
Around December 3, according to Hickinbotham and
Plumb, the two of them discussed with Respondent's
president, Ralph Hickinbotham, their concern that, even
though the management-rights proposal would reserve to
Respondent certain needed prerogatives, they still
needed to have imput from employees as to the effect of
changes in its operations. Consequently, they decided
that in addition to the grievance procedure they should
institute a complaint procedure whereby employees
could grieve as to actions taken by Respondent on mat-
ters reserved to it by the management-rights clause.
I The management-rights clause proposal reserved to Respondent the
right to subcontract any or all work.
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HICKINBOTHAM BROS. LTD.
On December 5, Plumb presented the following pro-
posal to the Union as an addition to: "SECTION X-
GRIEVANCES" 7 of its November 14 proposal:
Section X-Resolution of Disputes
Employee Complaints or disputes will be settled
under the provisions of (1) the Company Complaint
procedure set forth herein, or where the employee
and the Supervisor determine in step 1. that the dis-
pute is one of interpretation or application of specif-
ic provisions of the Collective Bargaining Agree-
ment, then the matter may be submitted under the
Grievance and Arbitration procedure set forth
herein as (2) GRIEVANCES AND ARBITRA-
TION.
Complaint Procedure
STEP 1: When an individual has a problem with
his job, dispute with his supervisor or a co-worker,
or a problem with interpretation or application of
Company policy, the complainant should first dis-
cuss the matter with his supervisor as soon as possi-
ble after the problem arises.
STEP 2: If the complainant cannot obtain imme-
diate satisfaction from his supervisor, he should, as
soon as possible, review the matter with his supervi-
sor's immediate superior. The complainant may
expect a thorough review of the complaint and
written justification of the action being taken con-
cerning the complaint may be requested.
STEP 3: If the complainant is not satisfied with
the decision or the actions taken by the supervisor's
superior, he/she may take the matter directly to the
Personnel Department. The Personnel Department
may be reached by telephone at the Stockton office.
This action must be taken within five working days
of the incident causing the complaint or the Person-
nel Department may interpret the complaint as non-
current, and therefore, not applicable to this com-
plaint procedure. A member of the Personnel De-
partment or an individual representing the Person-
nel Department will meet with the complainant
within five working days of receiving the com-
plaint. The Personnel Department will explain
Company policy concerning the complaint and pre-
vious decisions concerning the policies involved in
the complaint. Complainant must request the Per-
sonnel representative to assist him in reducing the
complaint in written form if he/she wants to pro-
ceed any further with the complaint procedure. In
addition, the complainant must state the desired
remedy he/she seeks.
STEP 4: The Personnel Department or its repre-
sentative will, within the next five days, form a
committee of three consisting of a Personnel De-
partment representative, the Manager responsible
for the profits of the division in which the com-
plainant works and a co-worker of the complainant.
The co-worker of the complainant shall be the
This section contains the grievance procedure and the arbitration
procedure.
mutual choice of the other two committee members
and shall be of appproximately the same salary
grade and position of the complainant. The co-
worker should have substantial knowledge of the
complainant's duties, job requirements and working
conditions and shall not be the complainant's imme-
diate supervisor. The committee shall review the
written complaint which was produced by the Per-
sonnel Department representative, listen to testimo-
ny of the complainant and any other individual in-
volved in the complaint and review of the condi-
tions surrounding the complaint.
The committee shall come to a unanimous deci-
sion as to the proper solution to the complaint. The
responsibility of the Personnel Department repre-
sentative is to insure that the resolution of the com-
plaint is in keeping with Company policy and con-
sistent with the resolution of other complaints simi-
lar to the one being reviewed. The responsibility of
the Manager is to see that the complaint is solved
with the best interests of the Company in mind. The
responsibility of the co-worker of the complainant is
to make sure that the decision is a fair one consider-
ing the working conditions and safety of the com-
plainant. Also, the co-worker should consider the
application of the decision to the individual as the
individual relates to all people in similar positions
and circumstances. This unanimous decision will be
rendered in written form within five working days
of having received the complaint from the Person-
nel Department. Copies of the decision will be
placed in the Personnel record of the complainant
and also given to the complainant.
STEP 5: In the event that the committee cannot
reach a unanimous decision, the viewpoints of each
individual will be documented. The documentation
will show which individual is in disagreement with
the other two and which specific policy or policy
interpretation the individual is in disagreement or
unclear about. This report will be immediately sub-
mitted to one or more of the corporate officers re-
sponsible for making, changing or deviating from
Company policy. The corporate officers reviewing
the case will meet with the committee, the com-
plainant and anyone else that the officer feels neces-
sary to consult. Within five working days of having
received the complaint, the corporate officer will
make a written decision concerning the complaint
which will be final.
Copies of the decision will be distributed as fol-
lows:
1. The first copy will be a permanent part of
the Personnel Department's policy interpretation
file.
2. The second copy will be a permanent part
of the Manager's Personnel record.
3. The third copy will become a permanent
part of the co-workers' Personnel record.
4. The fourth copy will become a permanent
part of the complainant's Personnel record.
101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The fifth copy will be given to the com-
plainant.
Plumb testified that he gave a copy of the proposal to
each member of the union negotiating committee and
said it was an additional procedure intended hopefully to
address some of the anticipated problems with employees
in dealing with the rights reserved to management in Re-
spondent's management-rights proposal, and that it ad-
dressed areas excluded from the grievance and arbitra-
tion procedure. Hickinbotham and Plumb testified that
Trammell read through at least a portion of the proposal,
tore it up, threw it on the floor, and said there was no
way the Union would ever accept this and in vulgar lan-
guage indicated what Respondent could do with the pro-
posal. Union President Ace Hatten said the Union would
not consider the proposal.
Trammell admits that he threw the proposal on the
floor and said there was no way the Union would ever
accept it. He does not deny the statement attributed to
Hatten. Hatten did not testify. Hickinbotham testified
that Plumb did not review the contents and purpose of
the proposal before physically handing it to the union
negotiators. According to him, Plumb said Respondent
would like to have the proposal taken under consider-
ation so that it could be discussed. They then sat quietly
by while the union committee was reading. Trammell
admits that there was some discussion of the proposal as
he read it, however, he did not testify as to what the dis-
cussion was, and, given his generally poor memory as to
what was said during negotiations, I strongly suspect he
does not recall what, if anything, was said.
Hickinbotham testified that he drafted the complaint
procedure proposal and that it was not intended to ex-
clude the Union. According to Hickinbotham and
Plumb, Trammell's response left them no opportunity to
explain the proposal. The question of whether the Union
was excluded was never raised. Hickinbotham testified
that, historically, the Union had discussed informally
with Respondent various complaints of employees with-
out any issue as to whether the complaint was a grieva-
ble one, and it was never Respondent's intent to exclude
the Union from doing so.8 After a caucus, the Union
proposed a 7-cent increase in pension contributions and
wage increases of 60 cents the first year and 50 cents in
each of the second and third years. No agreement was
reached.
The next negotiation session was on December 13.
Plumb said Respondent's November 14 and December 5
proposals were still on the table. Trammell said the
Union would accept Respondent's October 13 proposal
with a couple of modifications as to wages and classifica-
tions. According to Trammell, he thinks there was some
mention of a modification in pension plan, but he does
not recall exactly what it was. Plumb rejected the
Union's proposal in its entirety, stating that Respondent
had another proposal on the table.
s This meeting was conducted by the mediator as was all of the negoti-
ating meetings after October 16. During the course of any meeting, there
were some joint sessions, some caucuses, and each side would at limes
meet separately with the mediator.
Plumb proposed substituting a full-day holiday on
Christmas Eve instead of the half-day holidays on New
Year's Eve and Christmas Eve and that employees
would work a full day on New Year's Eve.
According to Plumb, the rationale given by him was
that it was also inventory time and Respondent wanted
employees to work New Year's Eve as was done at the
Sacramento plant. After a caucus, the Union said they
would agree in return for a concession in some other
area. Plumb does not recall what the specific concession
was. Plumb's response was that this was a critical area to
Respondent because of the inventory problem and that
they would be at impasse over this issue.
They went into separate caucuses. Thereafter the me-
diator came to Respondent's caucus and said the Union
had agreed that they were at an impasse. The mediator
said they were obviously at total odds and there was no
purpose in meeting further. He said that any future meet-
ings would be scheduled only upon request. Plumb said
that Respondent was willing to meet at any time. There
have been no further negotiating meetings.
B. Conclusions
The complaint alleges that, by making certain propos-
als on and after November 14, Respondent failed and re-
fused to bargain in good faith with the Union. As to the
allegation that Respondent has violated Section 8(a)(5) of
the Act by making regressive bargaining proposals, Re-
spondent and the Union agreed at the first negotiating
session that agreement on individual provisions were not
binding until agreement had been reached on a collec-
tive-bargaining agreement as a whole. In fact, the
Union's initial proposal specifically reserves to it the
right to make any additions, amendments, corrections, or
deletions to its proposals during the course of negotia-
tions as it may deem necessary.
Here, Respondent had made a number of concessions
on October 12 and 13 in order to avoid a strike. It was
unsuccessful in this regard and a strike commenced. Nev-
ertheless, these prestrike proposals remained outstanding
for a month after the strike commenced. By November
14, it was apparent to Respondent that it could weather
the strike. With this realization of its economic strength,
it dropped some of the proposals it had made in an effort
to avoid a strike. It is not illegal for an employer who
has weathered a strike to capitalize upon its new found
strength to secure contract terms it desires. O'Malley
Lumber Company, 234 NLRB 1171 (1978); World Pub-
lishing Company, 220 NLRB 1065 (1975). A strike is a
two-edged sword. Depending upon how it affects the
employer's operations, the strikers may gain concessions
or they may lose concessions previously obtained.
Here, in addition to the flexing of its economic muscle,
Respondent had specific reasons for its reversion to an
earlier proposal, some of which are directly attributable
to circumstances changed by the strike such as the re-
placement's expressed desire not to have to join a union
and the savings realized by subcontracting certain pro-
cesses which had never been subcontracted before. Other
reasons were the same as those advanced when the pro-
visions were intitially proposed. It is immaterial whether
102
HICKINBOTHAM BROS. LTD.
the Union, the General Counsel, or I find these reasons
totally persuasive. What is important, and I so find, is
that these reasons are not so illogical as to warrant an
inference that by reverting to these proposals Respon-
dent has evinced an intent not to reach agreement and to
produce a stalemate in order to frustrate bargaining.
In the circumstances herein, I find that Respondent did
not violate Section 8(a)(5) and (1) of the Act by making
regressive bargaining proposals concerning management
rights, sympathy striker protection, union security, and
notification to the Union of new hires. Times-Herald,
Inc., 249 NLRB 13 (1980); Olin Corporation, 248 NLRB
1137 (1980); O'Malley Lumber Company, supra; World
Publishing Company, supra.
The complaint also alleges that the management-rights
clause proposed by Respondent is overly broad and re-
strictive. It is well established that it is not illegal per se
for an employer to propose and bargain concerning a
broad management-rights clause. N.L.R.B. v. American
National Insurance Company, 343 U.S. 395 (1952). Rather
it is the rigid and inflexible insistence on the inclusion in
a contract of a sweeping management-rights clause
which may, under some circumstances, constitute evi-
dence of bad-faith bargaining. Preterm, Inc., 240 NLRB
654 (1979).
In the circumstances revealed by the record herein, it
cannot be said that Respondent was rigid and inflexible
in its insistence on the management rights clause pro-
posed by it. Certainly it did not evince an intransigent at-
titude prior to the strike, for on October 13 it proposed a
much less sweeping provision. At no time, insofar as the
record reveals, was any particular aspect of the clause
discussed other than subcontracting. After the strike, Re-
spondent certainly had a good reason for desiring a sub-
contracting clause, for it had discovered that it could
effect certain savings by subcontracting.
Another significant reason for Respondent's desiring
such a clause was Trammell's insistence that, if a right
were not specifically reserved in the agreement, Respon-
dent did not have it. Trammell's reaction to the subcon-
tracting provision was that the Union would not, under
any circumstances, agree that Respondent have complete
freedom to subcontract. The Union never suggested any
more limiting language as to subcontracting. The Union
never pointed out what other specific language it found
objectionable in the management-rights proposal nor at-
tempted to negotiate in any way as to any specific right
reserved to management by this proposal. Furthermore,
there is no evidence that the management-rights proposal
ever became a sticking point during negotiation. In these
circumstances, I cannot conclude that Respondent adopt-
ed a rigid and inflexible position as to management rights
which indicated a desire to frustrate bargaining and to
avoid the reaching of an agreement. Preterm, Inc., supra.
Cf. San Isable Electric Services, Inc., 225 NLRB 1073
(1976); Gulf State Canners, Inc., 224 NLRB 1566 (1976).
However, the Board has consistently found bad-faith
bargaining where the employer has insisted on a broad
management-rights clause and a no-strike clause, while at
the same time refusing to agree to an effective grievance
and arbitration procedure. San Isable Electric Services,
Inc., supra, fn. 7; Seattle-First National Bank, 241 NLRB
753 (1979). Thus, the allegation as to management rights
is intertwined with the allegations that Respondent re-
fused to bargain by proposing an employee complaint
procedure that bars union participation in the adjustment
of grievances and by proposing a no-strike provision
without a complementary grievance/arbitration proce-
dure. Therefore, the proposal, made by Respondent on
December 5 supplementing its earlier grievance and arbi-
tration proposal, is critical to all three allegations.
The General Counsel contends that the combined
grievance and employee complaint procedure clearly re-
quired the consent of the supervisor for an employee to
have access to the grievance procedure. The complaint
alleges that the complaint procedure bars union partici-
pation in the adjustment of grievances. The complaint
procedure does not spell out any role for the Union. On
the other hand, it does not specifically preclude union
participation. I credit Plumb that he stated in negotia-
tions that the complaint procedure was intended to apply
to employee complaints that involved those rights that
Respondent proposed be reserved to management. If the
management rights clause were agreed to, these com-
plaints would not be subject to the grievance and arbitra-
tion procedure. However, nothing in the proposal pre-
cludes the Union from grieving and arbitrating Respon-
dent's interpretation as to the scope of the management-
rights section.
Further, according to Hickinbotham's uncontradicted
testimony, in the past Respondent and the Union have
informally discussed employee complaints that arguably
did not fall within the scope of the grievance and arbitra-
tion procedure and, by proposing the complaint proce-
dure, Respondent did not intend to bar such union in-
volvement in the future. Rather, it was intended to give
employees a formal avenue for resolving problems that
would not be covered by the grievance and arbitration
procedure.
As to the allegation that Respondent proposed a no-
strike provision without a complementary grievance/ar-
bitration procedure, Respondent's proposal does contain
a grievance and arbitration provision which, if consid-
ered alone, does not appear ineffective. The General
Counsel contends that the proposed grievance and arbi-
tration procedure is rendered ineffective by the De-
cemher 5 proposal of an introductory paragraph for the
resolution-of-dispute section which encompasses both the
complaint procedure and the grievance and arbitration
procedure. The problem, contends the General Counsel,
is that the proposal requires the agreement of the super-
visor before an employee can file a grievance under the
grievance provision of the contract.
Respondent argues that this language only reflects the
reality of a situation, most common in grievance proce-
dures, where the employee first discusses his or her com-
plaint with the immediate supervisor. It is at this point,
Respondent contends, that, in the ordinary course of
things, a determination would be made as to which of
the procedures would be appropriate. I note that Hickin-
botham drafted the complaint procedure to apply to situ-
ations "when an individual has a problem with his job,
dispute with his supervisor or a co-worker, or a problem
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the interpretation or application of company
policy." The introduction which raises the question
herein of consent of supervisor to the filing of a griev-
ance was written by Plumb in an effort to incorporate
the two procedures into one section covering the resolu-
tion of disputes.
Respondent, in essence, is arguing that, at worst, the
language is inartfully phrased. This is a plausible argu-
ment. It is not unusual for nonlawyer negotiators to draft
contract proposals in inartful language. I hesitate to as-
cribe sinister motives from a reliance solely on the words
used when those words could arguably have been intend-
ed to mean something else, where, as here, we are not
dealing with standard contract language. In this regard, I
am well aware that Respondent could actually have had
the intent ascribed to it by the General Counsel. Howev-
er, Hickinbotham denied this and the Union by its con-
duct foreclosed any testing of Respondent's intent.
During negotiations, the Union never articulated the
reason for its hostility toward the proposal. It never
argued that the complaint procedure precluded union
participation. Nor did the Union raise the issue that the
language of the proposal appeared to require the agree-
ment of a supervisor before an employee could have re-
course to the grievance and arbitration procedure.
Rather, the Union summarily rejected the proposal and
stated that it would not discuss it, and, insofar as the
record reveals, it was never discussed. Thus, we have no
way of knowing how flexible or inflexible Respondent
would have been as to this proposal.
What appears to be the situation here is that Respon-
dent made certain proposals which were summarily re-
jected by the Union and immediately shoved aside with
that group of proposals on which no agreement had been
reached. In these circumstances, I find that the General
Counsel has failed to establish that Respondent by its
proposal of management-rights, no-strike and resolutions
of dispute clauses was motivated by a bad-faith intent not
to reach an agreement and to produce a stalemate in
order to frustrate bargaining. Accordingly, I find that
Respondent did not propose (1) an employee complaint
procedure that bars union participation in the adjustment
of grievances; (2) a no-strike provision without a comple-
mentery grievance/arbitration procedure; and (3) an
overly broad and restrictive management rights clause in
violation of Section 8(a)(1) and (5) of the Act.
Since Respondent has not engaged in the unfair labor
practices alleged in the amended complaint, the strike
which commenced on October 14 cannot be found to
have been prolonged by those alleged unfair labor prac-
tices. Accordingly, I conclude that a preponderance of
the evidence does not establish the allegations set forth
in subparagraph 12(a) of the amended complaint.
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 mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices which are alleged in the amended complaint in
this proceeding for the reasons which have been set forth
above.
Upon the foregoing findings of fact, and conclusions of
law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER9
It is ordered that the complaint herein be, and the
same hereby is, dismissed in its entirety.
I 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 find-
ings, 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.
104