Indianapolis Glove Co., Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1967

167 N.L.R.B. 479 (N.L.R.B. 1967)

INDIANAPOLIS GLOVE CO., INC.
Indianapolis Glove Company , Inc. and
Amalgamated Clothing Workers of America,
AFL-CIO . Case 8-CA-4474
September 20, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On June 8, 1967, Trial Examiner Lowell M.
Goerlich issued his Decision in this proceeding,
finding that Respondent had engaged in and was en-
gaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and the
Charging Party filed an answering brief to those ex-
ceptions.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified below. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that Respondent, Indianapolis Glove Com-
pany, Inc., Coshocton, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Delete paragraphs 2(b) and (c) of the Trial Ex-
aminer's Recommended Order, the paragraphs sub-
sequent thereto being consecutively relettered.
2. Delete from paragraph 2(d) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided ...."
3. Delete from the fourth indented paragraph of
the Notice attached to the Trial Examiner's Deci-
sion the last sentence, which begins "However,
such benefits . . . . "
i The Trial Examiner properly ruled that Respondent could not
relitigate matters pertaining to the representation proceeding See, e g ,
479
Carolina Natural Gas Coipoianon, 157 NLRB 647 The Board had al-
ready issued its Decision and Certification of Representative, and on
January 16, 1967, issued an Order denying Respondent's motion for
reconsideration The Trial Examiner's Decision also grants the General
Counsel's motion for summary judgment, to which Respondent excepts
We find no merit in the exception At the hearing, the General Counsel
amended the complaint by deleting paragraph 9(A), which had been de-
nied by Respondent Respondent stipulated to the remaining facts as al-
leged by the General Counsel and reaffirmed its answer to the pleadings
No triable issue to be resolved by the taking of evidence remained, hence
the Trial Examiner acted properly in granting the motion for summary
judgment See Zanes Ewalt Warehouse, Inc, 158 NLRB 708
We do not adopt the Trial Examiner's recommended remedy and order
with respect to the payment by Respondent of sums of money to each em-
ployee In the circumstances of this case, we find it sufficient, in order to
effectuate the policies of the Act, that Respondent be ordered to cease and
desist from refusing to bargain and from making unilateral changes in
wages or working conditions, and that it be ordered to bargain, upon
request, with respect thereto
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceedings
LOWELL GOERLICH, Trial Examiner . Pursuant to a
stipulation for certification upon consent election ap-
proved by the Regional Director for Region 8 on July 25,
1966, an election was conducted on August 4, 1966,
among the employees of the Employer in the following
described unit:
All production and maintenance employees of the
Employer at its Coshocton , Ohio, establishment, ex-
cluding all office clerical employees , professional
employees, guards and supervisors as defined in the
act.
The parties were furnished a tally of ballots which
showed that of approximately 158 eligible voters, 154
cast ballots , of which 73 were for the Petitioner and 68
against the Petitioner . There was I void ballot and 12
challenged ballots. The challenged ballots were sufficient
in number to affect the results of the election . No objec-
tions to the conduct of the election or to conduct affecting
the results of the election were filed . Thereafter , the Re-
gional Director considered the challenges and recom-
mended "that the challenges to the ballots of Turner, Ap-
pis, Riffil, Worthington , Askrens, Chaney , Miller and
Hothem be sustained; that the challenge to the ballot of
Agnes Bechtol be overruled but that her ballot not be
opened and counted ; and that no determination be made
as to the challenges to the ballots of Berlean , Courtright
and Royer " The Regional Director further stated , "Since
the Tally of Ballots shows that the Petitioner has received
a majority of the valid votes cast, I further recommend
that a Certification of Representatives issue." Thereafter
on December 19, 1966, the National Labor Relations
Board issued a Decision and Certification of Representa-
tive overruling the Employer 's exceptions to the Regional
Director's report "requesting that 6 of the 8 sustained
challenges be overruled and that the challenges dot ruled
upon by the Regional Director also be overruled." The
Board adopted the Regional Director 's recommendations
and certified that "Amalgamated Clothing Workers of
America, AFL-CIO, has been designated and selected
by a majority of the employees of Employer in the unit
found appropriate , as their representatives for the pur-
poses of collective bargaining , and that, pursuant to Sec-
tion 9(a) of the Act, the said labor organization is the ex-
167 NLRB No. 61
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clusive representative of all the employees of such unit
for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other con-
ditions of employment."i The Board, in a footnote, stated
"The Employer's exceptions, in our opinion, raise no
material or substantial issues of fact or law which would
warrant reversal of the Regional Director's findings and
recommendations."
The Complaint Case
On January 23, 1967, the Union filed the unfair labor
practice charge involved in the instant case in which it is
alleged that since the certification the Respondent had
refused to bargain with the Union.
On February 10, 1967, the General Counsel by the Re-
gional Director for Region 8 issued a complaint alleging
that the Respondent had committed unfair labor practices
in violation of Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, herein referred to as
the Act, by refusing to bargain with the Union upon
request. The complaint also alleged that on or about
December 8, 1966, the Respondent informed its em-
ployees that effective January 3, 1967, they would
receive a wage increase and increased weekly incentive
bonus benefits, and that on or about January 3, 1967,
Respondent unilaterally changed existing wage rates and
its weekly incentive bonus benefits without notification
to or consultation with the Union.
The Respondent filed a timely answer in which it de-
nied that it had violated Section 8(a)(1) and (5) of the Act.
In its answer Respondent admitted that the Union was
certified by the Board on December 19, 1966, but
"because of the Board's disposition of challenges to elec-
tion ballots," the Respondent denied that the certification
was valid.
The matter was heard on Apnl 17, 1967, at Coshocton,
Ohio. At the hearing each party was afforded full oppor-
tunity to be heard, to call, examine and cross-examine
witnesses, to argue orally upon the record, to submit
proposed findings of fact and conclusions of law, and to
file briefs. All briefs have been reviewed and considered
by the Trial Examiner.
At the hearing the Respondent in support of its defen-
ses proffered testimony of Duell McCarty whose entire
proffered testimony (the Respondent admitted) related to
the above referred to representation case of which the
only newly discovered or unavailable evidence was
represented by the Respondent to be as follows
"Kathryn Miller received gross wages from the Respond-
ent for work performed during the calendar year 1966,
in the amount of $1,821.72."2
The Respondent also proffered the testimony of Mary
Berlean , Laura Courtright, and Florence Royer whose
' In the Board's Decision it is related "The parties stipulated, and we
find, that all production and maintenance employees of the Employer at its
Coshocton, Ohio, establishment, excluding all office clerical employees,
professional employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act
a Counsel for the Respondent stated
The only item that I can think of that would relate to the statement
that Kathryn Miller received gross wages from the Respondent for
work performed during the calendar year 1966, in the amount of
$1,821 72
1 do not believe at the time that the briefs and motions were sub-
mitted to the Regional Director and the Board that this information
was available because, the calendar year 1966 had not been complete,
proffered testimony also referred to the representation
case and which testimony (the Respondent admitted) was
neither newly discovered nor unavailable at the time the
representation case was considered by the Board.
The parties stipulated that.
... on January 3rd, 1967, the Respondent Employer
increased the hourly rate for employees at its
Coshocton , Ohio, plant from $ 1.25 per hour to $1.40
per hour . And, increased other hourly wage rates in
about the same percentage.
Further, that on the same date, Respondent in-
creased its piece work rate by an average of 10-1/4%,
ranging from a minimum of 1 1% to a maximum of
22.1%.
All of the foregoing wage rate increases were
placed into effect without notification to or, consulta-
tion with the Union , the Charging Party here.
No other evidence was offered by the parties.
The Trial Examiner considered the proffered testimony
to be immaterial and rejected the proffer although he al-
lowed the proffered testimony to stand in the record as
the Respondent 's proffer.
At the close of all evidence adduced the General Coun-
sel moved to transfer the case directly to the Board
"without the Trial Examiner's Decision " which motion
was opposed by the Respondent and is hereby denied.;
The General Counsel also moved for a summary
judgment . Since there is no genuine issue as to any
material fact before the Trial Examiner and the General
Counsel is entitled to a finding in his favor as a matter of
law, for the reasons hereinafter stated , the Trial Examiner
grants the General Counsel's motion for summary
judgment See Red-More Corporation d/b/a Disco Fair,
164 NLRB 638.
Upon the entire record4 in this case, the Trial Examiner
makes the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and has been at all times
material herein, a corporation duly organized under and
existing by virtue of the laws of the State of Indiana, with
its principal office located in Indianapolis, Indiana. At its
Coshocton, Ohio, plant, the only facility of Respondent
involved herein, it is engaged in the manufacture, sale,
and distribution of gloves Annually, in the course and
conduct of its business operations in Coshocton, Ohio,
Respondent ships finished products valued in excess of
$50,000 directly to States of the United States other than
the State of Ohio
The Respondent admits and the Trial Examiner finds
that the Respondent is now, and has been at all times
had not ended as yet
To my knowledge, this the factual information contained in our
offer except for that one point, would not be new or startling to the
Board
The Trial Examiner deems the proffered evidence as to Kathryn Miller
immaterial because the question before the Regional Director and the
Board was her status, based upon facts available, on the date of the elec-
tion
i The Trial Examiner found no rule which, over the objection of a party,
authorized the Trial Examiner to grant the motion
J After the conclusion of the hearing the Respondent moved to correct
the transcript in certain particulars No opposition to the motion having
been received, the motion is granted and the record is corrected ac-
cordingly
INDIANAPOLIS GLOVE CO., INC.
material herein , engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION
Amalgamated Clothing Workers of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
First. The following employees of the Respondent con-
stitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act:5
All production and maintenance employees of the
Employer at its Coshocton, Ohio, establishment, ex-
cluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
Second: On or about August 4, 1966, a majority of the
employees of Respondent in the unit described above, by
secret-ballot election conducted under the supervision of
the Regional Director of Region 8 of the National Labor
Relations Board, designated or selected the Union as
their representative for the purpose of collective bargain-
ing with Respondent, and on December 19, 1966, the
Board certified the Union as the exclusive collective-bar-
gaining representative of the employees in said unit.
At all times since on or about August 4, 1966, and con-
tinuing to date, the Union has been the representative for
the purposes of collective bargaining of the employees in
the unit described above and by virture of Section 9(a) of
the Act, has been, and is now, the exclusive representa-
tive of all the employees in the unit described above for
the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment
Commencing on or about December 8, 1966, and con-
tinuing to date, Respondent did refuse, and continues to
refuse, to recognize and/or bargain collectively with the
Union as the exclusive collective-bargaining representa-
tive of all employees in the above-described unit, in that
on or about December 8, 1966, Respondent, by letter
signed by its vice president, George Fisher, Jr., informed
its employees that effective January 3, 1967, they would
receive a wage increase and increased weekly bonus
benefits, and on January 3, 1967, Respondent unilaterally
changed existing wage rates and its weekly incentive
bonus benefits, without notification to or consultation
with the Union.
Commencing on or about January 20, 1967, and con-
tinuing to date, the Union has requested and is requesting
Respondent to bargain collectively with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment, as the exclusive collective-
bargaining representative of all the employees of Respond-
ent in the unit described above.
Commencing on or about January 20, 1967, and
thereafter, the Respondent has refused and continues to
refuse to recognize and/or bargain collectively with the
Union, or to meet, negotiate, and discuss with it matters
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, not-
withstanding that the Union was at the time duly
designated and certified as the exclusive collective-bar-
481
gaining representative of the Respondent 's employees in
said unit. -
As an affirmative defense the Respondent raised the
question of the validity of the Board ' s certification
because of the Board 's disposition of challenges to elec-
tion ballots. However, the Respondent produced no
newly discovered evidence or any material evidence
which was unavailable in the prior related representation
case.
"The Board and Courts have stated numerous times
that in the absence of newly discovered or previously
unavailable evidence , issues which were or could have
been raised in a related representation proceeding may
not be relitigated in an unfair labor practice proceeding."
Follett Corporation , et al., 164 NLRB 378, and cases
cited in footnote 5. The same issues in reference to the
challenges to ballots were before the Board in the
representation case and were decided by the Board. As it
is apparent that the Respondent , as to this aspect of the
case, only seeks to relitigate in this unfair labor practice
proceeding matters already determined in the representa-
tion case, the General Counsel is entitled to a finding in
his favor as a matter of law. Follett Corporation , supra.
By refusing to recognize and bargain with the Union,
the Respondent has refused to bargain collectively in
violation of Section 8(a)(5) of the Act, and has interfered
with, restrained , and coerced its employees in violation of
Section 8(a)(1) of the Act.
In that there is no genuine issue of fact as to the
Respondent ' s unilateral change of wage rates and incen-
tive benefits without notification to or consultation with
the Union , the exclusive bargaining agent of the Respond-
ent's employees , the General Counsel , as to this aspect
of the case, also is entitled to a finding in his favor as a
matter of law. The Respondent ' s unilateral action
breached its statutory obligation to bargain with the
Union and was in violation of Section 8(a)(5) of the Act.
N L.R.B. v. Katz, 369 U.S. 736; Jefferson Wire and
Cable Corp ., 159 NLRB 1384.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce
V. THE RECOMMENDED REMEDY
Having found that the Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act, the Trial Examiner recommends that
it cease and desist therefrom, and, upon request, bargain
collectively with the Union as the exclusive representa-
tive of all employees in the appropriate unit and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
"The power to command affirmative action is remedial,
not punitive, and is to be exercised in aid of the Board's
authority to restrain violations and as a means of remov-
ing or avoiding the consequences of violation where those
' The parties so stipulated and the Board so found in Case 8 -RC-6363
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consequences are of a kind to thwart the purposes of the
Act." Consolidated Edison Co. v. N.L.R.B., 305 U.S.
197, 236. [Emphasis supplied.] Thus the consequences
of the unfair labor practices here committed are a per-
tinent consideration in framing an appropriate affirmative
remedy.
The natural and forseeable consequences" of the
Respondent's refusal to recognize and bargain with the
Union was the deprivation of the fair fruits of collective
bargaining which would have enured to the Respondent's
employees except for the Respondent's misconduct.
The natural and forseeable consequences of the
Respondent Employer's unilateral wage increases was to
reduce the Union's bargaining strength, undermine its ef-
fectiveness as a bargaining agent, imperil its prestige and
demonstrate the futility of its employees' resort to collec-
tive action.' These consequences are clearly of a kind
which thwart the purposes of the Act.
Nor is an employer excused from repairing the con-
sequences of its unfair labor practice because of an er-
roneous view of the law Cf. Old King Cole, Inc., 260
F.2d 530, 531 (C A. 6). In International Union of Elec-
trical, Radio and Machine Workers, Local 613,
AFL-CIO v N L.R.B., 328 F.2d 723, 727 (C A. 3), the
Court opined:
An employer who pursues a course of conduct
later determined to be an unfair labor practice does
so at his peril ... it would be inequitable to require
them [the employees] to absorb pay losses ascrib-
able to the unfair labor practice of the Company
Hence it is inequitable to require employees to absorb
pay losses caused by the unlawful dissipation of the
Union's bargaining strength and the loss of the Union's
effectiveness as a bargaining agent resulting from the em-
ployer's unfair labor practices. It follows, therefore, that
the economic advantage which enures to the employer by
reason of its unfair labor practices under these circum-
stances is in the nature of an unjust enrichment." An ap-
propriate remedy contemplates that the employer shall
not retain the fruits of his unfair labor practices. Beacon
Piece Dying and Finishing Co., Inc., 121 NLRB 953,
963. See also N.L R.B. v. Armco Drainage & Metal
Products, Inc., 220 F.2d 573 (C.A. 6). Piasecki Aircraft
Corporation v. N.L.R B., 280 F.2d 575, 591 (C.A. 3),
cert. denied 364 U.S. 933 As was stated by Justice Har-
lan in a concurring opinion in Local 60, United Brother-
hood of Carpenters v. N.L.R.B., 365 U.S. 651, 657.
The primary purpose of the provision for other
affirmative relief has been held to be to enable the
Board to take measures designed to recreate the
condition and relationship that would have been had
there been no unfair labor practice.
In Jack G. Buncher d/b/a The Buncher Company, 164
NLRB 340, the Board has lately said:
It is Respondent's violation of the Act which
requires the Board to apply a remedy that in its
judgment offers a reasonable basis for remedying the
violation found
In H. W Elson Bottling Company, 155 NLRB 714,
715, the Board said: "the Board must take measures
designed to recreate the conditions and relationships that
would have been had there been no unfair labor practice "
"To recreate the conditions and relationship that would
have been had there been no unfair labor practice" in the
instant case would mean that the status quo must be
restored as of a date immediately preceding the time
when the Respondent Employer first violated its duty to
bargain with the Union . On that date had the Respondent
Employer assumed its obligation to bargain it is reason-
able to believe that collective bargaining would have had
a fair chance to succeed . Had this occurred , the probable
fruits of such bargaining enuring to the employees would
have been the benefits gained by unions in like negotia-
tions. Thus a bare order to bargain will only serve to
acknowledge the formalities of the law while the Respond-
ent Employer retains full possession of the fruits of its
violation . Cf. Montgomery Ward & Co. v. N. L R B , 339
F.2d 889, 894 (C A. 6). Trial Examiner Owsley Vose
was cognizant of this result when, in a well -prepared and
thought -out decision (Case 25-CA-2377, TXD-80-67,
Ex-Cell-O Corporation), he recognized the inadequecy of
a bare order to bargain as a remedy in a case such as the
instant case which " involves simply a technical refusal to
bargain in order to obtain Court review of the Board's
determination in its Decision on Review in the prior
representation case that the Respondent's Objection to
Conduct Affecting the Results of the Election were
without merit , and that the Union should be certified as
the exclusive bargaining representative . in the ap-
propriate unit ." Hence Trial Examiner Vose recom-
mended that each of the employer ' s employees be com-
pensated "for the monetary value of the minimum addi-
tional benefits, if any, including wages, which it is
reasonable to conclude that the Union would have been
able to obtain through collective bargaining with the
Respondent , for the period commencing with the date of
the Respondent 's formal refusal to bargain collectively,
October 25, 1965, and continuing until paid ." Like Trial
Examiner Vose , and for the reasons stated by him, the
Trial Examiner would have recommended the same
remedy in that it effectuates the purposes of the Act for
it deprives the wrongdoer of the fruits of his misconduct
and to some degree restores the Union ' s bargaining
power lost by reason of the respondent employer 's unfair
labor practices . But, here, the Employer has already uni-
laterally granted employees by way of benefits that
"which it is reasonable to conclude that the Union would
have been able to obtain through collective bargaining
with the Respondent."
The Respondent has granted wage increases which ap-
parently exceed that which unions during a like period
6 " a man is held to intend the foreseeable consequences of his
misconduct " Radio Officers' Union v N L R B , 347 U S 17,45
In a comparable case, May Department Stores d/b/a Famous-Barr
Company v N L R B , 326 U S 376, 385, the Supreme Court said
By going ahead with wage adjustments without negotiation with the
bargaining agent , it took a step which justified the conclusion of the
Board as to the violation of §8(a )( I) Such unilateral action minimizes
the influence of organized bargaining It interferes with the right of
self-organization by emphasizing to the employees that there is no
necessity for a collective bargaining agent If successful in securing
approval for the proposed increase of wages, it might well, as the
Board points out, block the bargaining representative in securing
further wage adjustments
" In Herrmann v Gleason, 126 F 2d 936, 940 (C A 6), the court said
A person is enriched if he has received a benefit, and when he has
been unjustly enriched at the expense of another, he is required to
make restitution
INDIANAPOLIS GLOVE CO., INC. 483
have gained through collective bargaining ." It seems
doubtful that the Respondent would have anticipated
Trial Examiner Vose's recommendations, however, it ap-
pears highly probable that as far as wages are concerned,
the employees have received, without the intervention of
a collective -bargaining agent, increases equal to any the
employees would have obtained through collective bar-
gaining. The Employer's unilateral and unlawful grant of
wage increases was a potent demonstration of the use-
lessness of the Union as a collective-bargaining agent and
the futility of selecting the Union as a bargaining
representative. By such a "message of futility" the Em-
ployer interfered with employees' Section 7 rights. Orkin
Exterminating Company of Florida, Inc., 152 NLRB 83,
93. The practicable result of the employer's voluntary
generosity was to cause disaffection among union ad-
herents
By their selection of the Union as their bargaining
agent the Respondent ' s employees sought to equate their
bargaining power with that of their Employer. "Union
was essential to give laborers opportunity to deal on
equality with their employer," American Steel Foundries
v. Tri-City Central Trades Council, 257 U.S. 184, 209.
Recognition of this basic and accepted truth is found writ-
ten in the Findings and Declaration of Policies (Title 29
U.S.C. §151). iii Moreover, the unlawful use of devices to
cause disaffection of union adherents flouts that Act's
purpose to encourage the "practice and procedure of col-
lective bargaining."
In Republic Steel Corporation v. N.L.R.B., 311 U.S.
7, 10, Chief Justice Hughes, speaking for the Court said:
The remedial purposes of the Act are quite clear.
It is aimed , as the Act says (§ 1) at encouraging the
practice and procedures of collective bargaining and
at protecting the exercise by workers of full freedom
of association, of self organization and of negotiating
the terms and conditions of their employment as
other mutual aid or protection through their freely
chosen representative.
The Respondent, by its unfair labor practice has vir-
tually nullified the collective strength generated through
the employees' choice of collective action. The Respond-
ent by its misconduct has dissipated bargaining power of
the collective-bargaining agent which the Act anticipates
will follow as a means of accommodating the "inequality
of bargaining power between employees who do not pos-
sess full freedom of association or actual liberty of con-
tract , and employers who are organized in the corporate
or other forms of ownership associations" when they
select an exclusive collective -bargaining agent . Without
the strength derived from employee support , a collective-
bargaining agent 's attempt to participate in collective bar-
gaining is an exercise in futility, a condition which the em-
ployer herein sought to effect.
On the date the employees selected the Union as their
The Respondent Employer increased hourly rates 15 cents per hour,
or 12%, and piecework rates 10 - 1 /4%, ranging from a minimum of 1 I % to
a maximum of 22 1%n According to preliminary estimates by the Bureau
of Labor Statistics wage increases provided by major collective-bargain-
ing contracts negotiated during the first quarter of 1967 indicate that
The median first-year increase in first-quarter settlements came to
5 0 percent or 14 5 cents an hour
Among settlements in manufacturing, the median first-year in-
crease during the first quarter was 5 8 percent or 15 4 cents an hour
while the median rise provided in non manufacturing agreements
was 5 0 percent or 14 5 cents
bargaining agent, the Union, as did the Employer, pos-
sessed a certain quantum of bargaining power . While an
equilibrium of bargaining power may not have then ex-
isted, the bargaining power of each placed on a balance or
scales would have reflected the counterbargaining power
of each. Free collective bargaining anticipated that each
should exercise that power unhampered by the unlawful
acts of the other. Such would have been the status quo;
but by the Employer's grant of wage increases the status
quo was disturbed and bargaining power was weighted
toward the employer.
The Act forbids that an employer or a collective-bar-
gaining agent shall unlawfully disturb the status of bar-
gaining power as it exists between them at any given time.
For example, a Union may not resort to strike violence to
push the pointer in its favor; nor may an employer grant
unilateral wage increases for the same purpose. Here the
Employer pushed the pointer in its favor by unlawfully
resorting to unilateral action in derogation of the Union's
collective-bargaining rights. To gain the status quo, which
is the remedial objective of the Act, the pointer must be
restored to the position it occupied on January 3, 1967,
when the Employer effectuated its unlawful action. A
perfect remedy would tilt the balance to the same position
it hung when it was weighted in the Employer's favor by
its unfair labor practices. But to accomplish perfection is
not an easy thing. To strive toward perfection is the com-
mand of every remedial hope Thus it seems fair and
equitable in that the Employer has placed wage raises on
one pan of the balance to depress the Union 's bargaining
power that it now place equal wage raises on the other
pan of the balance to increase the Union 's bargaining
power so that the "inequality of bargaining power" which
the Act seeks to eradicate will be less marked and the
statutory objective thereby accommodated. While such
a remedial device may not recreate the identical condi-
tions and relationships as they existed on January 3,
1967, had the unfair labor practices not been committed,
nevertheless such remedy will contribute to the restora-
tion of the bargaining power lost by reason of the Respond-
ent Employer's unfair labor practices.
Thus, it is recommended that there accrue and become
payable by the Respondent to each employee in the ap-
propriate unit above described a sum of money equal to
that which he has received pursuant to the wage raise
granted by the Employer on January 3, 1967, commenc-
ing on January 3, 1967, and continuing until such time as
the Respondent Employer has complied with the recom-
mended order herein , and shall include interest at the rate
of 6 percent per annum , to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Cf. Beverage-A ir Co., 164 NLRB 1127.
In that a purpose of the Recommended Remedy is to
remedy the individual worker's inequality of bargaining
power caused by the Employer's unfair labor practices,
Wage increases during the entire life of the contract also averaged
5 0 percent in the first quarter However, manufacturing agree-
ments alone provided a life-of-contract gain of only 4 I percent
Life-of-contract settlement in nonmanufacturing averaged 5 0 per-
cent (65 LRRM 59, May 22, 1967)
in "The inequality of bargaining power between employees who do not
possess full freedom of association or actual liberty of contract , and em-
ployers who are organized in the corporate or other forms of ownership
association substantially burdens and affects the flow of commerce, and
tends to aggravate recurrent business depressions , by depressing wage
rates and the purchasing power of wage earners in industry and by
preventing the stabilization of competitive wage rates and working condi-
tions within and between industries "
310-541 0 - 70 - 32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is further recommended that the Union be allowed to
utilize the compensation herein provided as an item for
negotitation.
By its unfair labor practices the Respondent Employer
deprived its employees of the means of dealing with their
Employer with a measure of equality, discouraged collec-
tive bargaining and rendered impotent their resort to col-
lective action. This was wrong for "... the avowed and
interrelated purposes of the Act are to encourage collec-
tive bargaining and to remedy the individual worker's in-
equality of bargaining power...." N.L.R.B. v. Hearst
Publications, inc., 322 U.S. 111, 126.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce 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. All production and maintenance employees of the
Employer at its Coshocton, Ohio, establishment, exclud-
ing all office clerical employees, professional employees,
guards and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. On August 4, 1966, and at all times thereafter, the
Union has been and is the exclusive representative of all
employees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. On December 19, 1966, and at all times thereafter,
the Union has been and is the certified and exclusive
representative of all employees in the aforesaid ap-
propriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
6. By refusing on or about January 20, 1967, and at all
times thereafter, to bargain collectively with the Union as
the exclusive bargaining representative of the employees
of Respondent in the appropriate unit , Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
7. By unilaterally granting wage increases on January
3, 1967, the Respondent violated Section 8(a)(5) and (1)
of the Act.
8. The aforesaid labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
it is recommended that the Respondent , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Amalgamated
Clothing Workers of America, AFL-CIO , as the exclu-
sive bargaining representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees of the Em-
ployer at its Coshocton , Ohio, establishment , excluding
all office clerical employees , professional employees,
guards and supervisors as defined in the Act.
(b) Changing unilaterally working conditions of its em-
ployees.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Amalga-
mated Clothing Workers of America, AFL-CIO, as the
exclusive representative of all the employees in the ap-
propriate unit described above with respect to rates of
pay, wages, hours of employment, and other conditions
of employment including wage changes made on January
3, 1967, and thereafter, if any, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Comply fully with the recommendations set forth
in the section of this Decision entitled "The Recom-
mended Remedy" herein.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its Coshocton, Ohio, establishment, copies
of the attached notice marked "Appendix.",, Copies of
said notice, to be furnished by the Regional Director for
Region 8, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.12
it In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
12 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL NOT refuse to bargain collectively with
Amalgamated Clothing Workers of America,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT interfere with the efforts of Amalga-
mated Clothing Workers of America, AFL-CIO, to
negotiate for, or represent as exclusive bargaining
INDIANAPOLIS GLOVE CO., INC. 485
agent of, the employees in the bargaining unit
described below.
WE WILL , upon request , bargain with the above-
named Union as the exclusive bargaining representa-
tive of all the employees in the bargaining unit
described below , with respect to rates of pay , wages,
hours of employment , and other conditions of em-
ployment , and, if an understanding is reached, em-
body such an understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees of
the employer at its Coshocton , Ohio , establish-
ment , excluding all office clerical employees,
professional employees , guards and supervisors
as defined in the Act.
WE WILL NOT unilaterally change the working con-
ditions of our employees and WE WILL bargain col-
lectively with the above -mentioned Union in respect
to the changes which we made in wages and incen-
tive bonuses on January 3, 1967 . However, such
benefits shall not be changed or altered , except upon
the affirmative decision of the affected employees as
expressed - through their collective-bargaining
representative.
WE WILL NOT in any like or related manner inter-
fere with , restrain, or coerce our employees in the ex-
ercise of the rights guaranteed to them by Section 7
of the Act.
Dated By
INDIANAPOLIS GLOVE COM-
PANY, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office , 720 Bulkley
Building , 1501 Euclid Avenue , Cleveland , Ohio 44115,
Telephone 621-4465 , Extension 42.