Insurance Agents' International Union

National Labor Relations Board - Board Decisions

Dec 13, 1957

119 N.L.R.B. 768 (N.L.R.B. 1957)

7138 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAw
1. Traders OR Company of Houston, Respondent herein, is an Employer within
the meaning of Section 2 (2) of the Act, and is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Local 4-227, Oil, Chemical and Atomic Workers International Union, AFL-
CIO, is a labor organization within the meaning of Section 2 (5) of the Act.
3. Employee Committee is a labor organization within the meaning of Section 2
(5) of the Act.
4. All production and maintenance employees employed by the Respondent at its
Mumble, Texas, lease, exclusive of office clerical, guards, and supervisors as defined
in the Act constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
5. On or before April 29, 1956, and at all times thereafter, the Respondent re-
fused, and continues to refuse to bargain collectively with Local ,4-227,', Oily Chem-
ical and Atomic Workers International Union, AFL-CIO, as the exclusive representa-
tive of all its employees in the bargaining unit described in the paragraph numbered
4, above, in contravention of Section 8 (a) (5) and (1) of the Act.
6. The agreement or contract made and executed between Employee Committee,
consisting of certain employees of the Respondent and the Respondent on May 15,
1956, is not a bona fide collective bargaining agreement, was entered into contrary
to the purposes of the Act, and is a nullity under the Act.
7. The Respondent, by interrogating its employees interfered with their rights to
concerted activity as guaranteed under Section 7 of the Act, in contravention of
Section 8 (a) (1) of the Act.
8. These unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Insurance Agents' International Union , AFL-CIO and The Pru-
dential Insurance Company of America . Case No. 22-CB-4
(formerly 2-CB-1726). December 13, 1957
DECISION AND ORDER
On December 7, 1956, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint, and recommended that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Company and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs. The Respondent also filed a statement in support of the Inter-
mediate Report and a brief.'
The Board 2 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
I The requests of the Respondent and the Company for oral argument are hereby denied
as the record, exceptions, and briefs adequately present the issues and positions of the
parties.
2Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member. panel
[Chairman Leedom and Members Murdock and Jenkins].
119 NLRB No. 103.
INSURANCE AGENTS' INTERNATIONAL UNION 769
this case, and-finds merit in the exceptions to the Intermediate Report
for the reasons discussed below. Accordingly, the Board adopts only
those findings and conclusions of the Trial Examiner which are con-
sistent with the findings and conclusions hereinafter made.
1. The Trial Examiner found that the Respondent did not refuse
to bargain in good faith within the meaning of Section 8 (b) (3)
of the Act by engaging in certain conduct, characterized by him as
"slowdowns," during the course of contract negotiations. We do not
agree.
The-1-facts are not in dispute and may be summarized as follows :
For a number of years, the Respondent has been in contractual rela-
tions with, Prudential, the Charging Party, as the exclusive bargain-
ing representative of Prudential's district agents in an appropriate
unit described in the Intermediate Report. On January 16, 1956,
about 2 months before the expiration date of their then current con-
tract, the parties began negotiations for a new agreement. Appar-
ently dissatisfied with the progress of negotiations, the Respondent on
February 28 alerted local union officials that it contemplated taking
"emergency" measures, if a satisfactory agreement was not reached
by the time their current contract expired on March 19. No agree-
ment having been reached as the contract expiration date approached,
.the Respondent accordingly adopted a "Work Without Contract"
program which.concededly, as the Trial Examiner found, was de-
signed to force the Company to yield to its bargaining demands.
This plan was put into effect through a series of directives issued
during the course of negotiations to local union officials and member
district agents, at least once a week until the following July when
a new agreement was concluded? These directives required the
district agents at various times, while negotiations were going on, to
engage in specified harassing activities in the course of their employ-
ment and in utter disregard of their assigned duties and normal
routines.
As fully set forth in the record, the district agents, pursuant to the
directives, refused to write new business; reported late to their re-
spective offices at 10 o'clock in the morning instead of 8: 30, as they
were required to do; engaged in "sit-in mornings" whereby the agents
remained in the office until noon "doing what comes naturally" and
refused to perform any work after 4: 30 p. in., contrary to what they
3 This agreement was concluded on July 17 , 1956 , during a recess in the hearings herein.
For this reason , among others , the Respondent moves to dismiss the complaint on the
ground that the case has become moot . It is well established that the discontinuance of
unfair labor practices does not render moot the charges based thereon . Moreover, we find
that the order hereinafter directed is necessary as an assurance against the recurrence
of the violations found in this case . Accordingly , we deny the Respondent 's motion to dis-
miss . International Longshoremen's Association, Independent, et. at. , ( New York Ship-
ping Association , Inc., et al .), 118 NLRB 1481 ; Southern Saddlery Company , 90 NLRB
1205 , 1208 : cf. N. L. R. B. v. Mexia Textiles Mills , Inc., 339 U. S . 563, 567.
476321-58-vol. 119-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily did; picketed, demonstrated, and distributed leaflets in
front of the home, district, and detached offices on specified days; dis-
tributed leaflets each day to policyholders and others on the agent's
debit; secured policyholders' signatures on petitions directed to the
Company on the Respondent's behalf; engaged in an "all-go-or-no-
go" program whereby agents refused to attend special business con-
ferences on the Company's invitation; presented signed policyholders'
petitions to the Company at its home offices while simultaneously en-
gaging in mass demonstrations; when, upon Respondent's direction,
the agents resumed writing new business, they refused, contrary to
company instructions, to make any report of such business to staff
managers or to permit them to read the reports or to see any insurance
applications which were deposited directly in the "chute"; and re-
ported to and left the office in a group. In addition, during the pe-
riod from May 21 to June 22, district agents refused to participate in
the Company's "May Policyholders Month" campaign and instead
participated in the Respondent's "May Policyholders Month" cam=
paign. As a result, the agents would not accept any material for
the Company's campaign, work extra hours, put forth special effort,
work with a staff manager, perform duties after 4: 30 p. m., show
any interest, or take part in management meetings. It cannot be
questioned that the foregoing activities were intended and could have
no effect other than to disrupt and curtail the Company's business,
and thereby to compel the Company to accede to the Respondent's
contract demands.
In our opinion, the harassing tactics to which the Respondent
resorted while purporting to negotiate its differences with the Com-
pany do not reflect the good-faith bargaining contemplated by the
Act 4 Collective bargaining in good faith, as the Board and the
courts have so often held, presupposes that both the employer and the
union "enter into discussion with an open and fair mind, and a sincere
purpose to find a basis of agreement touching wages and hours and
conditions of labor." 5 It requires "cooperation in the give and take
of personal conferences with a willingness to let ultimate decision
follow a fair opportunity for the presentation of pertinent facts and
arguments." 9
In the present case, the Respondent's reliance upon harassing tactics
during the course of negotiations for the avowed purpose of com-
pelling the Company to capitulate to its terms is the antithesis of rea-
soned discussion it was duty-bound to follow. Indeed, it clearly re-
4 Section 8 (d) defines the duty to bargain as " the performance of the mutual obligation
of the employer and the representative of the employees to meet at reasonable times and
confer in good faith with respect to- wages, hours , and other terms and conditions of
employment."
Globe Cotton Mills v. N. L. R . B., 103 F. 2d 91 , 94 (C. A. 5).
N. L. R . B. v. Jacobs Manufacturing Company, 196 F. 2d 680 , 683 (C. A. 2).
INSURANCE AGENTS' INTERNATIONAL UNION 771
vealed- an unwillingness to submit its demands,to the consideration of
the bargaining table where argument, persuasion, and the free inter-
change of views could take place.' In such circumstances, the fact
that the Respondent continued to confer with the Company and was
desirous of concluding an agreement does not alone establish that it
fulfilled its obligation to bargain in good faith, as the Respondent
argues and the Trial Examiner believes. At most, it demonstrates
that the Respondent was prepared to go through the motions of bar-
gaining while relying upon a campaign of harassing tactics to disrupt
the Company's business to achieve acceptance of its contractual de-
mands. If an employer in the course of negotiations threatens to
shut down his plant or to cut hours of work or to stop overtime, in
order to force a union to accede to his proposals and abandon its own
demands there can be no doubt, under established Board-law. as en-
forced by the courts, that the employer thereby is not engaging in
the genuine good-faith bargaining required by the Act. ' Similarly,
here, the Respondent's conduct does not evidence an open and fair
mind to reach agreement on the basis of free exchange of ideas which
is essential to good-faith bargaining. By. the same token, it is un-
necessary to show, as the Respondent urges, that this conduct actually
affected the negotiations or the Company's business.' It is sufficient
that this conduct reflected an attitude not to engage in the free give-
.and-take of good-faith bargaining.9
Although admitting that its activities in-question fall within the
category of a "concerted slowdown," the Respondent, nevertheless,
contends that this conduct is no different from a strike and is entitled
to the same statutory protection. Therefore, it argues if no inference
of bad faith could be drawn had it engaged in a strike contemporane-
ously .with the negotiations, no such inference could be drawn from
the conduct in which it had actually engaged. ' It is clear, however,
as the Trial Examiner found, that, unlike a strike, "concerted slow-
downs," and the Respondent's harassing activities. in particular, are
.not protected by Section 7 or Section 13 of the Act.10 Consequently,
whether or not an inference of bad faith is permissible where a union
engages in a protected strike to enforce its demands, there is nothing
unreasonable in drawing such an inference where, as here, the union's
a Indeed, the Respondent bluntly informed its membership by one of its directives that
"a satisfactory contract will be won in the field and not at the bargaining table."
' $However , we note that in one of the directives to the membership , the Respondent in-
formed them that the "program of `work without a contract ' is now operating in high gear.
It 'is having a decided effect upon management and its success has been the subject of dis-
cussions at the bargaining table."
9 Contrary to the Respondent 's contention , we rely on the harassing tactics solely as evi-
dence of the Respondent 's bad-faith dealings with the Company and not as independently
constituting unfair labor practices.
io See, for example, International Union, U. A . W. v. Wisconsin Employment : Relations
Board, 336 U . S. 245; Phelps Dodge Copper Products Corporation , 101 NLRB 360, 367-
368.
772 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
conduct is not sanctioned by the Act." Harassing activities are.
plainly "irreconcilable with the Act's requirement of reasoned discus=
sion in a background of balanced bargaining relations upon which
good-faith bargaining must rest," 12 and "impair[ed] the process of
collective bargaining that Congress intended not only to encourage-
but to protect." 13
Moreover, unlike the complete cessation of work and pay involved
in a strike, the Respondent's resort to harassing tactics was designed
to enable the employees unilaterally to dictate the terms of their-
employment and . accept compensation from their employer without
giving a regular return of work done," and thus to circumvent the-
orderly and peaceful procedures of collective bargaining. Such con-
duct, as the Supreme Court has recognized with respect to an
employer's unilateral action, is "manifestly inconsistent with the prin-
ciple of collective bargaining." 15 To permit these unprotected activi-
ties to be used to undermine free collective bargaining would, in our
opinion frustrate the very purpose of the Act to secure industrial
peace through the process of collective bargaining.
In view of all the facts and circumstances in this case, and in accord-
ance with the Board's decision in Textile Workers Union of America,.
CIO, and Local 1172, et at. (Personal Products Corporation), (108
NLRB 743), we find that the Respondent, by engaging in harassing
conduct during the course of the negotiations, failed to bargain in
good faith and thereby violated Section 8 (b) (3) of the Act.16
2. In dismissing the complaint herein, the Trial Examiner was:
under the erroneous impression that he was not bound by the Board's
decision in the Textile Workers Union case , supra, because the Court.
of Appeals for the District of Columbia refused to enforce the portion
of the Board's order in that case relevant to the issues here involved..
The Trial Examiner in support of his assumption that he was not.
"required to conform his findings, conclusions and recommendations
to the principles enunciated in the Board's decision in Personal Prod-
11 We respectfully disagree with the contrary opinion of the majority of the court in
Textile Workers Union of America, CIO, and Local 1172, et al . v. N. L. R. B. (Personal'
Products Corp.), 227 F. 2d 409 (C. A., D. C.) and agree with the dissent of Judge Danaher
in that case.
12 Phelps Dodge Copper Products Corporation, supra, at p. 368.
11 Textile Workers Union of America, CIO, and Local 1172 , et al. ( Persona-1 Products
Corp.), 108 NLRB 743, 747.
14 Indeed, in one of the directives to the district agents, the Respondent pointed out "You:
know that the Company is unhappy because our membership are able to draw their salaries
while continuing the program."
151V. L. H. B. v. Crompton-Highland Mills, Inc., 337 U. S. 217, 225, see also dissenting
opinion in Textile Workers Union of America, CIO, and Local 1172, et al. v. N. L. R. B.
(Personal Products Corp), supra , at p. 412.
11 See International Union, United Mine Workers of America, et at . (Boone County Coal
Corporation), 117 NLRB 1095. In view of our decision herein, we deny the Respondent's
motion to dismiss the complaint.
INSURANCE AGENTS' INTERNATIONAL UNION 773
ucts" erroneously relies upon the Board's decision in Blue Flash
Express Inc. (109 NLRB 591, 593) where the Board specifically over-
ruled previous principles established by the Board with which certain
court decisions were in conflict. The Board in that .case ..reevalulated
its previous decisions on the principles involved therein and itself
chose to establish a new policy citing in support of such policy, the
decisions of the courts alluded to by the Trial Examiner. It has been
the Board's consistent policy for itself to determine whether to
acquiesce in the contrary views of a circuit court of appeals or whether,
with due deference to the court's opinion, to adhere to its previous
holding until the Supreme Court of the United States has ruled other-
wise . But it is not for a Trial Examiner to speculate as to what course
the Board should follow where a circuit court has expressed disagree-
ment with its views. On the contrary, it remains the Trial Examiner's
duty to apply established Board precedent which the Board or the
Supreme Court has not reversed. Only by such recognition of the
legal authority of Board precedent, will a uniform and orderly admin-
istration of a national act, such as the National Labor Relations Act,
be achieved.17
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, which have been
found to constitute unfair labor practices occurring in connection
with the operations of the Company, described in the Intermediate
Report, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from this and like
and related conduct, and to take certain affirmative action designed to
effectuate the policies of the Act.
n Member Murdock is in full agreement with the views just stated as to the obligation
of Trial Examiners to follow Board precedent despite conflicting court precedent , it being
the sole prerogative of the Board to decide when to reverse its own precedents and to
adopt and apply contrary court decisions. He further notes that he has previously stated
such a view in his dissent in American Tool Works , 116 NLRB 1681, 1686, where, how-
ever, he was alone in doing so. Neither in that case nor in other cases (e. g., Crystal
Palace Market, 116 NLRB 856, 868; Shepherd Machinery Company, 119 NLRB 320;
Alloy Manufacturing Company, 119 NLRB 307), where Trial Examiners successfully antic-
ipated reversals of Board precedents by ignoring Board precedents, has the Board criticized
the Trial Examiners' actions in not following and applying Board precedent. In Member
Murdock's view the obligation of Trial Examiners to follow Board precedent is uniform and
the Board should be no less critical of a Trial Examiner's refusal to follow Board precedent
in cases where the Board affirms the result reached by a Trial Examiner who has disre-
garded Board precedent.
774 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Prudential Insurance Company of America, a New Jersey
corporation, is engaged in commerce within the meaning of the Act.
2. Insurance Agents' International Union, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. Insurance Agents' International Union, AFL-CIO, is, and at all
times material herein has been, the exclusive representative of the
Company's employees in an appropriate unit described in section III,
A, of the Intermediate Report for the purpose of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively in good faith with the Com-
pany, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (3) of the Act.
5. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Insurance Agents'
International Union, AFL-CIO, its officers, representatives, agents,
successors, and assigns shall :
1. Cease and desist from refusing to bargain collectively in good
faith with The Prudential Insurance Company of America, as the
exclusive representative of the Company's district agents in the ap-
propriate unit described in the Intermediate Report, with respect
to rates of pay, wages, hours of employment, and other terms and
conditions of employment, by authorizing, directing, supporting, in-
ducing or encouraging the Company's employees to engage in slow-
downs, harassing activities or other unprotected conduct, in the course
of their employment and in disregard of their duties and customary
routines, for the purpose of forcing the Company to accept its bar-
gaining demands, or from engaging in any like or related conduct in
derogation of its statutory duty to bargain, provided the Respondent
remains the representative of the employees in the appropriate unit
as prescribed in Section 9 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business offices and meeting halls, and at the business
offices and meeting halls of its local unions which administer its con-
tlact with The Prudential Insurance Company of America, copies of
INSURANCE AGENTS' INTERNATIONAL UNION 775
the notice attached hereto as an appendix.18 Copies of said notice, to
he furnished by the Regional Director for the Twenty-second Region,
shall, after being duly signed by an official representative of the
Respondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Furnish to the Regional Director for the Twenty-second Re-
gion signed copies of the notice attached hereto and marked "Ap-
pendix," for posting, the Company willing, at the home office, district
offices, and detached offices of The Prudential Insurance Company
of America which are herein involved, in places where notices to
employees are customarily posted. The notice shall be maintained
there for a period of sixty (60) consecutive days thereafter. Copies
of said notice, to be furnished by the Regional Director for the
Twenty-second Region, shall, after being duly signed by an official
representative of the Respondent as provided in paragraph 2 (a)
of this Order, be forthwith returned to the Regional Director for such
posting.
(c) Notify the Regional Director for the Twenty-second Region
in writing, within ten (10) days from the date of this Order, as to
what steps the Respondent has taken to comply herewith.
i8 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals , the notice shall be amended by substituting for the words "Pursuant to a Decision
and Order," the words "Pursuant to a Decree of the United States Court of Appeals, En-
forcing an Order."
APPENDIX
NOTICE TO MEMBERS AND ALL EMPLOYEES
Pursuant to a. Decision and Order 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 members and em-
ployees of The Prudential Insurance Company of America that :
WE WILL N oT refuse to bargain collectively in good faith with
The Prudential Insurance Company of America, as the exclusive
representative of the Company's district agents in the appro-
priate unit described in the Intermediate Report, with respect
to rates of pay, wages, hours of employment, and other terms
and conditions of employment, by authorizing, directing, sup-
porting, inducing or encouraging the Company's employees to
engage in slowdowns, harassing activities or other unprotected
conduct, in the course of their employment and in disregard of
their duties and customary routines, for the purpose of forcing
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company to accept its bargaining demands, and we will not
engage in any like or related conduct in derogation of our statu-
tory duty to bargain, provided we remain the representative of
the employees in the: appropriate unit, as prescribed in Section"9
of the Act.
INSURANCE AGENTS' INTERNATIONAL
UNION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been duly filed and served , a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board , and an answer having been filed by the above-named
Respondent , a hearing involving allegations of unfair labor practices in violation
of Section 8 (b) (3) of the National Labor Relations Act, as amended , 61 Stat. 136,
herein called the Act, was held in New York, New York, on various dates between
June 27 and September 11, 1956, before the duly designated Trial Examiner.
As to the unfair labor practices , in substance the complaint alleges and the answer
denies ( both having been amended , in minor respects , early in the hearing): that
by directing its members to engage in certain concerted "slowdown" activities during
a period when it was negotiating , as the legal bargaining representative of employees
in an appropriate unit, with the Charging Employer for a new contract , the Respond-
ent Union refused to bargain collectively within the meaning of Section 8 (b) (3)
of the Act.
At the hearing all parties were represented , were afforded full opportunity to be
heard, to examine and cross -examine witnesses , to introduce evidence pertinent.-to
the issues , to argue orally upon the record , to file briefs , and proposed findings of
fact and conclusions of law. Arguments at the conclusion of the hearing were
waived. Briefs have been received from the Employer and the Union ; both have
been carefully considered.
After the close of the hearing , the Trial Examiner received a written stipulation,
of eight pages , covering certain matters discussed on the record the final day of
the hearing . It had then been agreed , by all counsel and the Trial Examiner, that
if a stipulation could be reached , it would be forwarded and made a part of the
record. It is hereby ordered that said stipulation be made a part of the record in
this case as Respondent 's Exhibit No. 1-UUU.
Also after the close of the hearing the Trial Examiner received from General
Counsel a letter dated September 19, 1956, indicating upon its face that copies had
been forwarded to other counsel in the case , requesting the renumbering of certain
exhibits placed in evidence by counsel for the Respondent . This request was
occasioned by the fact that when substitution , agreed upon in advance by counsel,
was made for some 16 volumes of negotiating transcripts received in evidence, it
turned out that because of difference in binding there are in fact 72 volumes.
General Counsel's request for renumbering of Respondent 's Exhibit No. 1, as
explicitly set out in the aforesaid letter , is hereby granted. The letter referred to
is also hereby made a part of the record , and is to be marked General Counsel's
Exhibit No. 1-U.
Upon the entire record in the case, and from his observation of the one witness,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Prudential Insurance Company of America is a New Jersey corporation,
having its principal office and place of business in Newark, New Jersey, with branch
INSURANCE AGENTS' INTERNATIONAL UNION 777
offices and places of business in 46 States of the United States and in the District
of Columbia. It is engaged in the business of selling and issuing life insurance,
,group•.insurance,,and annuity contracts.
During the year ending December 31, 1955, Prudential received as premiums on
insurance contracts a sum of more than one billion dollars, and paid out on claims
under such contracts a sum of more than one-half billion dollars.
Prudential, the Charging Employer, is engaged in commerce within the meaning
of the Act.
II, THE LABOR ORGANIZATION INVOLVED
Insurance Agents' International Union , AFL-CIO, is a labor organization admit-
ting to its membership employees of the Charging Employer.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and issues
This case stems from a charge filed by Prudential in April 1956, during the
period of its bargaining for a new contract with the Respondent Union. Based
upon the charge, General Counsel's complaint, issued in June (also during the
negotiating period), alleges that while negotiating the Union directed Prudential's
employees to engage in certain concerted activities, described generally as "slow-
downs,". and that by.,initiatiag and encouraging such- conduct the Respondent "evinced
its failure or refusal to bargain in good faith with Prudential," thus violating Section
8 (b) (3) of the Act.'
In its answer, motions, objections, and brief the Respondent opposes-not the
major facts alleged-but the legal conclusions and theory involved. In substance,
it may be said that the Respondent denies that slowdowns during the course of
negotiations, per se, establish bad-faith bargaining or a refusal to bargain.
. Having noted the nature of the combat, the Trial Examiner turns to a brief
description of the arena, the opponents, and the material events. As to all factual
matters the evidence is not in dispute, but appears in the record as admissions,
concessions, or stipulations.
All parties agree that the Respondent is now, and for some time has been,
the exclusive bargaining representative, within the provisions of Section 9 (a) of
the Act, of Prudential's district agents in an appropriate unit covering 34 States, the
District of Columbia, and the cities of Toledo and Bryan, Ohio .2
Until about March 18, 1956, the parties had been operating under a 2-year
contract which, by an appropriate exchange of letters and notices, was opened in
January 1956, for negotiation of a new agreement. Negotiations began about
January 16 and were concluded with the execution of a new contract on July 17,
i This section reads : "It shall be an unfair labor practice for a labor organization or its
agents-"to refuse to bargain collectively with an employer, provided it is the representa-
tive of his employees subject to the provisions of Section 9 (a)" ; the term "bargain col-
lectively" is thus defined in Section 8 (d) : "For the purposes of this section, to bargain
collectively is the performance of the mutual obligation of the employer and the repre-
sentative of the employees to meet at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of employment, or the negotiation of an
agreement, or any question arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either party, but such obligation
does not compel either party to agree to a proposal or require the making of a conces-
sion : . . .
2 The specific allegations of the complaint on this unit point, admitted by the answer, read
as follows : "During the period from about January 16, 1956, to about April 23, 1956, all
District Agents employed by Prudential in the States of Alabama, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, 'Maine, Massachusetts. Michigan, Missouri, Nebraska, New Hampshire, New
Jersey, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South
Carolina; Tennessee, Utah, Vermont, Virginia, Washington and West Virginia, the District
of Columbia, and the cities of Toledo and Bryan, Ohio, exclusive of managers, staff
managers, agencies service representatives, office supervisors, assistant office supervisors,
clerks, and all supervisors as defined in Section 2 (11) of the Act constituted a unit ap-
propriate for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act. During the period since about April 23, 1956, all District Agents employed by
Prudential . . . [in all States and cities above-named plus the State of Maryland] ex-
clusive of . . . [all excluded categories heretofore cited] constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of the Act."
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1956, during a recess in these proceedings-a recess specifically requested. by the
Respondent to permit the reaching of an agreement.
By the latter part of February the Respondent apparently became disturbed
about the progress of negotiations and the approach of the contract's expiration
date. On February 28 its president, George L. Russ, sent to the heads of all locals
a long letter in which, while admitting "some progress" toward "a satisfactoy
contract," he expressed concern regarding "the attitude of the Company in view of
their many proposed changes in the working conditions" and urged such union
officials to prepare (1) for "any emergency action which will take place on March
20" and (2) to carry out "whatever directive is forth coming (sic) from the Inter-
national Union."
On March 13 Russ directed all officials and members: (1) to take a "strike vote"
at a special meeting on March 18; and (2) to carry out the following program
for the week beginning March 19 unless by then a satisfactory agreement with
Prudential had been reached:
(1) Write no further business until a satisfactory agreement has been
reached.
(2) Take part in the demonstration in front of your district or detached
office on March 21, 1956, between the hours of 12 and 1:00 p. in.
(3) You are to take part in the demonstration at the various home-offices
of the Prudential on Friday, March 23, 1956.
The same directive stated: "During this period the Union shall continue its negotia-
tions with the Company and make every effort to reach a satisfactory agreement.
. Your participation is necessary to the success of this effort."
For the next several weeks similar instructions were issued by the Respondent
and its agents which, in addition to the above-noted action on the part of members,
called for late reporting at the office, for "sit-ins"--during certain' periods, remain-
ing in the office instead of visiting prospective or actual policyholders, for soliciting
signatures upon petitions from policyholders, and for refusal to attend business
conferences called by Prudential.
Members of the Respondent Union throughout the areas of the country covered
by its jurisdiction, and to a greater or lesser degree of participation, carried out
the instructions and directives issued by the Respondent.
These concerted activities, brought about by the Respondent's responsible action,
are the conduct which is the nub of this case. There is no dispute that these
activities were engaged in, that the Respondent is accountable for them, and that
they were designed to influence the progress of negotiations for a new contract.
B. Is the question open?
A point raised by counsel for Prudential in his brief to the Trial Examiner should
be disposed of. Counsel strenuously urges that the Trial Examiner has no choice
but to follow, in his findings, conclusions, and recommendations, the Board's deter-
mination of the same issues in its "Personal Products" Decision and Order. (Textile
Workers Union of America, et at. (Personal Products Corporation), 108 NLRB
743.)
The history of that case, in substance, is as follows: The Board's decision issued
May 5, 1954; on October 27, 1955, the essential features of the Board's conclusions
and order were reversed by the Court of Appeals for the District of, Columbia
Circuit, Textile Workers Union of America, et al. (Personal Products Corp.) v.
N. L. R. B., 227 F. 2d 409; the Board sought review by the Supreme Court; a writ
of certiorari was granted April 2, 1956, 350 U. S. 1004; on October 15, 1956-
after the close of the hearing in this case-the Supreme Court withdrew its grant
of certiorari, without comment, 352 U. S. 864.
So far as the Trial Examiner is aware, both from research and from claims of
'counsel, the Personal Products case is the only one yet decided by the Board involv-
ing the question posed here.
In his well-prepared brief, counsel for Prudential contends that the Supreme
Court withdrew its grant of certiorari "because the NLRB filed a supplemental
memorandum indicating that in this particular case the question may have become
moot." He adds, "the prior action of the Supreme Court indicates that certiorari
would probably be granted in a proper case." By "prior action," it is assumed
that counsel means the prior grant of certiorari, since withdrawn.
As to the supplemental memorandum of the Board, referred to by counsel, the
Trial Examiner has that document before him. Its final sentence reads:
Accordingly, in our view the instant case has not become moot . [Emphasis
supplied.]
INSURANCE AGENTS' INTERNATIONAL UNION 779
it appears clear that in the Board's opinion the case was not moot, and that this
-opinion was voiced clearly to the Supreme Court.
Furthermore, the Trial Examiner hesitates to read meaning into the Supreme
Court's withdrawal of its previous grant-a mere withdrawal without explanation,
and such hesitancy is suggested by a comment made by Gerard D. Reilly, a former
member of the Board, an authority on labor law, and one not unfamiliar with the
drafting of the Taft-Hartley amendments to the Act:
Of course a denial of certiorari is not necessarily conclusive of the views of the
Supreme Court... 3
The plain fact remains: at this moment the Trial Examiner, as an agent of the
Board, is not in a position to cite as legal authority the Board's decision in Personal
Products, since that decision has been reversed by the Circuit Court of Appeals.
Nor does the Trial Examiner believe that he is required, as counsel for Prudential
urges in his brief, to conform his findings, conclusions, and recommendations to the
principles enunciated in the Board's decision in Personal Products. In support of
his contention, counsel cites a number of cases in which the Board has said, in effect,
that it need not acquiesce in any court decision until such time as the question
involved may have been passed upon by the Supreme Court .4 The Trial Examiner
believes that counsel has overlooked the Board's majority decision in Blue Flash
.Express, Inc., 109 NLRB 591, 593, where the Board specifically overruled principles
previously adhered to and followed decisions of courts of appeals.
The Trial Examiner finds in the history of the administration of the Act no
existence of a rigid Board policy never to reconsider its interpretation of the law
until so required by the Supreme Court. Board policy, if such there is on this point,
'seems to be one of discretion and judgment under the circumstances.
In short, the Trial Examiner is persuaded by the factors above noted that the
major question in Personal Products is still an open one. And as to the evidence
and issues herein involved, which differ both in detail and degree from those
apparent in Personal Products, the Trial Examiner believes that the Board will wish
to have before it, in the event the case comes to it for review, his findings and
conclusions reached by independent judgment and not by an effort of clairvoyance
it intuitive anticipation.
C. "Unprotected" vs. "Unlawful"
Were the terms "unprotected" and "unlawful" of equal legal connotation, the
Trial Examiner's task in this case would be measurably simplified. In many cases
the Board has found slowdowns to be unprotected. In Phelps Dodge Copper
Products Corporation, 101 NLRB 360, 368, the Board said, citing other cases:
"It is well established that a slowdown is a form of concerted activity unprotected
by the Act." In that case the Board also said that the employer, "under established
Board and court precedents" would have had a right to discharge employees partici-
pating in the slowdown, and further found that the employer was under no legal
obligation to bargain, during the period of the slowdown, with the labor organiza-
tion responsible for the slowdown.
In no case coming to the Trial Examiner's attention, however=except in Personal
Products, which has been reversed by the Court-has the Board held, in effect,
that a slowdown, being unprotected activities, is per se violative of the Act. Thus,
there exists no Board or court precedent permitting the Trial Examiner to conclude,
forthwith, that because the Respondent caused its members to engage in the unpro-
tected activities of a slowdown it therefore violated the Act.
While there can be no reasonable doubt that unlawful concerted activities (those
specifically prohibited by the Act) are, per se, unprotected activities, the Trial
Examiner discerns no mandate in reason requiring the reverse to be considered
as true. The words are not synonymous.
There appears to be a real distinction between a determination that by certain
conduct employees have lost protection otherwise accorded them by the Act and a
conclusion that by causing such conduct a labor organization has violated the Act,
absent some expressed or clearly implied prohibition in the Act itself. Indeed, level-
ing of the two propositions would seem to be cautioned against by the language of
the Act:
8 Clark Bros. Co., Inc., 70 NLRB 802, 811.
4 Counsel cites : The Harvester War Depot, Inc., 63 NLRB 249, 251 ; Westinghouse Elec-
tric Corporation, 72 NLRB 60, 61'; Bethlehem Steel Company, 89 NLRB 1476, 1477.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SEC. 13. Nothing in this Act, except as specifically provided for herein, shall
be construed so as either to interfere with or impede or diminish in any way
the right to strike, or to affect the limitations or qualifications on that right.
SEC. 501. When used in this Act-
The term "strike" includes any strike or other concerted stoppage of
work by employees (including a stoppage by reason of the expiration of a
collective-bargaining agreement) and any concerted slow-down or other con-
certed interruption of operations by employees.
And the U. S. Supreme Court, in International Rice Milling Co., Inc. v. N. L. R. B.,
341 U. S. 665, 673, voiced this warning:
By § 13, Congress has made it clear that . all . parts of the Act which
otherwise might be read so as to interfere with, impede or diminish the union's
traditional right to strike, may be so read only if such interference, impediment
or diminution is "specifically provided for" in the Act.
In the same case the Supreme Court cited the following from its own previous opinion
(International Union, U. A. W. A., A. F. of L., Local 232 v. Wisconsin Employment
Relations Board, 336 U. S. 245, 253).
While the Federal Board is empowered to forbid, a strike, when, and because its
purpose is one that the Federal Act made illegal, it has been given no power to
forbid one because its method is illegal--even if the illegality were to consist of
actual or threatened violence to persons or destruction of property.
Nor does General Counsel venture to urge that the slowdown during negotia-
tions, being unprotected activities, was per se a refusal to bargain, violative of the
Act, and subject to a Board cease and desist order and court decree. In his several
statements of position during the hearing he voiced, as bridging the gap between
the slowdown facts established and the refusal to bargain conclusion he sought, the
following claims, among others:
(1) the Union's expressed intent and purpose to bring pressure upon Pruden-
tial at the bargaining table;
(2) by the slowdown creating "an atmosphere" which was not of a proper
"give-and-take" nature, and was not "conducive to good faith bargaining";
(3) failing to bargain in good faith; and therefore
(4) refusing to bargain.
Since General Counsel assumed the burden of proving his case, the points raised
by him will first be considered, together with relevant points stressed by counsel for
Prudential in his brief.
D. Consideration of General Counsel's case
1. Pressure and atmosphere
There can be no doubt, in view of the multitude of facts and documents stipulated
in evidence, that the Respondent at all times made it perfectly clear to Prudential
that its program of a concerted slowdown, morally characterized by General Coun-
sel as "harassing tactics," was designed, intended, and carried out for the purpose of
bringing pressure upon Prudential at the bargaining table. It seems unnecessary to
burden this report with supporting quotations from the scores of documents and
thousands of pages of transcript of the negotiations. In his letter to local presidents,
quoted heretofore, Russ made it known on February 28-shortly before expiration
of the contract-that "emergency action" might be necessary if agreement was not
reached on a satisfactory new contract. On March 23, after the slowdown had begun,
a union negotiator said to Prudential's representatives at the negotiating meeting that
day-in response to some apparent criticism from the employer of union members
participating in the program:
Far from feeling that it demeans me, far from feeling that my policyholders
don't understand what I'm doing, I consider it a mark of honor and a privilege
to act as a union man; and let the record show that I say this day the one who has
lost dignity has been the company, to allow this present wordage of this con-
tract to go as long as it has so that the men at last have to take militant action to
help us negotiate. (Page 3703, transcript of negotiations of March 23, 1956.)
The open, announced purpose of the Respondent's action was to bring pressure
upon the employer at the bargaining table, and the plain object of the pressure was
to obtain a contract satisfactory to it.
INSURANCE AGENTS' INTERNATIONAL UNION 781
Was the object of the pressure illegal? Clearly not: The reaching of collective-
bargaining agreements satisfactory to the parties is , and has been since 1935, a major
goal of the Act.
Was the bringing of pressure upon the employer at the bargaining table by action
of employees in the field illegal? General Counsel does not so claim . In effect
he concedes that such pressure , if brought by a full strike, would be permissible and
that action causing it would be fully protected by the Act.
The general proposition of bringing ecomomic pressure upon an employer to gain
economic advantages was passed upon many years ago by Chief Justice Taft, in
American Foundries v. Tri-City Council, 257 U. S. 184, wherein he said:
Union was essential to give laborers opportunity to deal on equality with their
employer. They united to exert influence upon him and to leave him in a body
in order by this inconvenience to induce him to make better terms with them.
They were withholding their labor of economic value to make him pay what
they thought it was worth . The right to combine for such a lawful purpose has
in many years not been denied by any court . The strike became a lawful in-
strument in a lawful economic struggle or competition between employer and
employees as to the share or division between them of the joint product of
labor and capital.
When the foregoing was quoted to him on the floor of the Senate on April 29, 1947,
during debate upon certain amendments to the Act , of which he was coauthor, the
late Senator Taft replied: 5
I fully subscribe to every word said there; and there is nothing in the bill which
in any way operates against what is there stated.
The legal aspects of its object, of the pressure itself, and of the complete strike
method of bringing pressure having been thus disposed of, the Trial Examiner turns
to the apparent theory of General Counsel that half a strike is greater than the whole
strike and, when indulged in during negotiations , must be presumed to exert such
unique pressure upon the employer that the Board should find it illegal and subject
to a cease and desist order.
First , it should be noted that neither General Counsel, nor counsel for Prudential
offered any evidence , oral or by document , objective or subjective , to indicate that the
"harassing tactics" of a slowdown had any effect upon negotiations or upon the bar-
gaining faculties of the employer 's negotiators . Both counsel , although agreeing that
the Respondent 's exhibit containing the entire record of negotiations might be re-
ceived in evidence , specifically reserved the right to object to its materiality. And
General Counsel, at the conclusion of his case-in-chief when opposing the Respond-
ent's motion to dismiss for failure to prove that negotiations had in any way been in-
terfered with , declared:
We are not here concerned with the effectiveness or the failure of the activities
of the Respondent . . . Whether they achieved the result they sought to achieve
is not in any way conclusive or indicative of the bad faith bargaining of the Re-
spondent herein.
Elsewhere General Counsel said:
Whether or not Prudential was affected to the extent or degree which the
Respondent hoped its activities would be effective , is not for us to decide... .
It is clear that they were designed to affect negotiations . . . It is the conten-
tion of General Counsel that . . . these activities were designed for that pur-
pose .; that these activities are illegal, under the circumstances , regardless
of whether or not they proved effective.
He added:
Just as a strike has an impact upon the operations of the company , or the collec-
tive bargaining negotiations , so do these activities have an impact , and the nature
of the impact is one which the Board can objectively evaluate by the nature of
the activities itself.
General Counsel agreed that his position was analogous to that observed in the trying
of an 8 (a) (1) case ( interference , restraint, and coercion ) wherein it was necessary
only to prove the statement and not its effect. It may well be that the Board will
be able to "objectively evaluate" the "impact" of activities upon "collective - bargain-
ing negotiations " from the mere "nature of the activities ," but the Trial Examiner is
5 Cong. Ree. 4322, April 29, 1947.
782 . DECISIONS OR . NATIONAL . LABOR RELATIONS BOARD
reluctant even to attempt this feat of mental pole vaulting with only presumption as:
a pole." The analogy of, coercive statements seems not in point. A threat is a threat,.
and forbidden by law. A slowdown, whether designed to effect collective bargaining:
or not, is not forbidden by law. On the contrary, appraising a slowdown as a partial'
strike or a "method" of striking, as noted in the preceding section, the Supreme Court
has pointed out that the Board is empowered to "forbid, a strike" or "its method
only "when and because its purpose is one that the Federal Act made illegal."
In the absence of any evidence of effect of the slowdown upon negotiations, the
Trial Examiner cannot find that such concerted activity in any degree adversely-
affected or impaired the process or progress of collective bargaining nor that, because
of any possible effect upon bargaining, any distinction may be drawn between this.
slowdown and a statutory strike. Such a finding, moreover, would run counter to,
General Counsel's concession during the hearing:
On its face the bargaining engaged in by the Respondent and Prudential at the
bargaining table might seem to be a free and good faith give-and-take type of-
bargaining.
Turning to the intent of the Union in directing the slowdown, intent being a point.
repeatedly stressed by General Counsel. The Respondent has conceded that its:
intent was to influence the progress of negotiations, and the point may quickly be dis-
posed of. Precisely the same intent would have been involved in a full strike.. A
full strike would have been lawful, as General Counsel admits. Under such cir-
cumstance, the Trial Examiner believes it would be a painful torture of logic to.
reason that intent alone is sufficient to taint with illegality the method chosen to-
carry it out.
Now to the slowdown itself. Did it possess any feature, or assemblage of features,
so distinguishing it from a full, legal strike, that circumstantial evidence is provided"
from which can be inferred, a "motive or state of mind" establishing "bad-faith"'
bargaining? 6
First, as to what. the slowdown was not. As counsel for' the Respondent points.
out in his able brief:
Here, there obviously was no violation of contract. Cf. N. L. R. B. v. Sands
Mfg. Co., 306 U. S. 332 (1939) There was no violence or other violation of-
law in the manner in which the activities were administered. Cf. Southern
Steamship Company v. N. L. R. B., 316 U. S. 31 (1942); Allen-Bradley Local'
No. 1111, etc. v. Wisconsin Employment Relations Board, 315 U. S. 740 (1942);:
N. L. R. B. v. Fansteel Metallurgical Corporation, 306 U. S. 240 (1939):
Nor can it be found here, as was found by the Board in the previously cited Per-
sonal Products case, that:
These unprotected tactics interfered with production and put strong economic
pressure on the Employer who was thereby disabled from making any depend-
able production plans or delivery commitments. Moreover, the Employer was;
not informed of any specific demands which these tactics were designed to,
enforce nor what concessions it could make to avoid them. (p. 746.)
On the contrary, General Counsel not only offered no evidence to prove loss of
business but said, unequivocally:
I am not here attempting to establish the nature of the losses sustained by the
company as a result of the activity. . I don't feel . . . that it is the proper
province of this trial to establish any loss, the nature of the loss or the extent of
the loss.
And the record is replete with documentary evidence, including thousands of pages
of the bargaining record, proving that the employer was at all times well informed'
as to the "specific demands which these tactics were designed to enforce" and "what
concessions it could make to avoid them."
Both General Counsel and counsel for Prudential conceded that the employer was
aware of all directives of the Union, concerning planned and prospective activities,
before their effective date. In no respect may it be found that the employer here-
was "harassed" by the element of surprise, depriving it of opportunity to take appro-
priate countermeasures. Furthermore, long before the Respondent openly-
announced that what it considered to be Prudential's unfair demands might necessi-
6 The quotation "motive or state of mind" comes from N. L. R. B. v. Reed h Prince Mfg:
Co., 205 F. 2d 131, 140 (C. A. 1), cert. denied 346 U. S. 887. The full sentence will be
quoted later in this report.
INSURANCE AGENTS'. INTERNATIONAL UNION 784
tate action py- its. members, Prudential had good. reason to suspect, both the nature
and; the; possibility of'the action. For in the 1954-56 contract between the parties
there had been this provision:
During the period of .this Agreement the Union will not cause or permit its
member to cause, nor will any member of the Union take part in,any strike,
stoppage, mass late reporting, mass blank production weeks, or slow down of
duties •or' production, or picket any of the Employer's offices, for any reasons
whatsoever; nor will the Union or its members engage or participate in any
demonstration, display, publication, or advertisement, tending to incite sym-
pathy, or protests concerning the relations between the Employer and the Union
and the Agents. The term "strike" shall include a strike of any nature, includ-
ing such as are termed "sympathetic," as well as any cessation or reduction of
normal business activities, or efforts by a group of Agents for the purpose of
coercing the Employer.
The record contains no evidence to support any implied bearing on this case of
the claim made by counsel for Prudential in his brief:
Where the employees continue as employees and accept their regular compen-
sation from the company while refusing to perform the services required by
the employer, then an imbalance of power has been created which is fatal to
bargaining in good faith.
The employees here involved are insurance agents, not factory production workers.
Their general duties are to sell and service insurance policies. No particular time
or place for such employee services are required by the employer.? There is no
evidence. in the record to show that the servicing of existing policyholders was in
the. slightest degree affected-as presumably would have been the case in a full
strike. And as for the writing of new business-for which the agent receives a
commission-it is plain that he was not paid for what he did not write .8
There is one feature of. the activity which appears not to have been an element
in cases above cited. Although General Counsel 'accorded it only casual attention
in his oral arguments, counsel for Prudential stresses in his brief the 'claim that by
"demonstrating" in front of company offices and by ' soliciting signatures upon
petitions from policyholders, activities which were included; in the Union's program,
the participating agents violated their individual agreements with Prudential.
Even if the claim of violation of the employer-employee individual contracts were
valid (and the history of proposed amendments to the Act' makes it clear that
Congress declined to empower the Board to decide such questions)9 it is difficult
to perceive how any "imbalance of bargaining power" was thereby created between
the employer and the .Union. Testimony of the Prudential official .is to the effect
that punitive power was readily available to the employer. It could have fined or
"docked" the participating agents. That it chose not to do so was its own re-
sponsibility, not the Union's.
In conclusion on the point raised, the Trial Examiner finds no feature, or com-
bination of features, of the concerted activities involved so distinguishing them
from the full, statutory strike, as to provide circumstantial evidence warranting the
inference of a motive establishing bad faith bargaining.
The foregoing conclusion, of course, in nowise disturbs the fact that the Trial
Examiner considers himself bound by Board decisions to find that the activities
a Vice President Rosner, the one live witness at the hearing said that "The very
nature of the job precludes setting a number of hours," and "the job of an agent is utterly
different than that which you see every day."
8 Furthermore, on the item of "imbalance of power," under Board authority which, so
far as the Trial Examiner is aware, has not been challenged in a reviewing court, Pru-
dential could quickly have regained "balance of power" by simply declining to negotiate
until the Union ceased its unprotected activities, since the Union's open and avowed pur-
pose of the slowdown was to hasten negotiations and obtain a contract.
91n H. Conf. Rept. 510, on H. R. 3020, it is stated : "The Senate amendment con-
tained a provision which does not appear in section 8 of existing law. This provision
would have made it an unfair labor practice to violate the terms of a collective bargaining
agreement. . . . The conference agreement omits this provision of the Senate amendment.
Once parties have made a collective bargaining contract the enforcement of that contract
should be left to the usual processes of the law and not to the National Labor Relations
Board." The individual contracts were and are recognized in the contracts between the
Respondent and Prudential.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
themselves-although differing somewhat in nature from those which have been
considered in other cases-fall within the scope of "unprotected concerted
activities."
2. Claim of failure and refusal to bargain
As noted above, it is the tenor of General Counsel 's contention that an "atmos-
phere" not conducive to good -faith bargaining was created by the Union's program,
that by creating such an atmosphere , the Union failed to bargain in good faith,
and by failing to bargain in good faith refused to bargain.
Also as reviewed at length in the section immediately above , General Counsel
not only failed to produce evidence showing the nature of the "atmosphere" but
insisted that such proof was unnecessary . He declined to provide the Trial Ex-
aminer with any evidence of effect upon the negotiations , the negotiators , or upon
the employer 's business . Yet-in the presence of his own concession that the
negotiations "might seem to be a free and good faith give-and -take type of bar-
gaining"-he asks the Trial Examiner to conclude that because of an "`atrirosphere"
(which, so far as General Counsel's evidence is concerned , apparently was a com-
plete vacuum ) there actually was not free and "good faith type of bargaining."
Counsel for the Respondent appears to have well summed up General Counsel's
position as follows:
Its case boils down to saying that even if there was good faith bargaining in
fact , there could not have been in theory.
On the other hand, there is in the record some 72 volumes of transcript of nego-
tiations . The Trial Examiner has not read them all. Although requested to do so
by the Trial Examiner , neither General Counsel nor counsel for Prudential has
cited any portion of this transcript in support of his position . From the sections
he has read , the Trial Examiner concludes precisely what General Counsel con-
ceded as to the apparent good faith, give-and-take nature of the negotiations.
Neither does General Counsel claim nor did he offer any evidence to warrant
a finding that the Respondent did not honor to the full Congress' formula for
bargaining collectively , as set out in Section 8 (d) of the Act:
For the purposes of this section , to bargain collectively is the performance of
the mutual obligation of the employer and the representatives of the employees
to meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the negotiation of an
agreement , or any question arising thereunder, and the execution of a written
contract incorporating any agreement reached if requested by either party .. .
So far as the record shows, each party met with the other when requested, con-
ferred in good faith , negotiated an agreement, and signed it.
Indeed, again so far as the Trial Examiner can learn from the record , the only
delay in negotiations was caused by the bringing of this case . And it was counsel
for Prudential who vigorously opposed , before the Trial Examiner at the opening
of the hearing, the Respondent 's motion for postponement in order to permit com-
pletion of negotiations and the reaching of agreement . The postponement was
granted on June 27, and on July 17 the new contract was executed . That contract,
which does not expire until July 1959, contains a provision similar to that quoted
above by which the Union agrees not to engage in the activities involved here.
Contrary to the apparent position of General Counsel and counsel for Prudential,
the Trial Examiner considers such evidence of actual negotiations to have quite as
much bearing upon the ultimate question of good- or bad-faith bargaining as does
evidence of the slowdown. As the Circuit Court of Appeals said in Reed & Prince,
205 F. 2d 131, 139-140:
The ultimate issue whether the Company conducted its bargaining negotiations
in good faith involves a finding of motive or state of mind which can only be
inferred from circumstantial evidence.
The Trial Examiner sees no reason why the same principle of evidence should not
apply whether an employer or a union is involved . And the actual record of negoti-
ations can hardly be found so remote a circumstance of bargaining that it must be
ignored.
From the "circumstantial evidence" of the bargaining itself it appears that but one
inference is possible , particularly in view of General Counsel's concession noted here-
tofore: the Union's motive was one of good faith.
Against this-to the Trial Examiner-reasonable inference , should be weighed
whatever inference may be as reasonably drawn from the Union' s concurrent "un-
PARAMOUNT CAP MANUFACTURING CO. 785
protected" activities. If clearly understood, General Counsel's contention is that
the sole inference to be drawn from such conduct during negotiations is one of bad
faith, and that this inference so far outweigns teat wnicn may be drawn from the
negotiations themselves that a refusal to bargain conclusion must follow.
In reviewing all factors involved in this case the Trial Examiner has used more
words than he intended to at the outset. As has been said by his betters, of this and
earlier generations, words are inadequate conveyors of ideas.1° And the increase
of quantity seldom adds to their quality. Although the Trial Examiner, having writ-
ten them, thinks he has said that he is unable, upon analysis of all relevant elements,
to infer a motive of bad-faith bargaining from the Union's slowdown conduct, per-
haps that idea may be more clearly presented by means of a simple, mathematical
formulation of the problem.
There are three distinct elements involved in the case: (a) the intent to influence
bargaining; (b) the method of influencing bargaining; and .(c) ultimate "bad-faith"
bargaining. General Counsel's formula, then, is:
(a) plus (b) equals (c)
It will hardly be questioned that, in formula fashion, greater weight should be given
to that which is illegal, lesser weight to that which is not illegal but by the Board
has been found to be unprotected, and none at all to that which is neither illegal nor
unprotected. Let us assign, then, the value of 0 to (a), 5 to (b), and 10 to (c).
Substituting these values in the above formula:
0 plus 5 equals 10
And of course this is not so. Legal intent plus unprotected method do not add up to
illegality, in this case and in the opinion of the Trial Examiner.
In summary, having given full consideration to the unprotected activities as evi-
dence bearing upon the ultimate question of bad-faith bargaining, the Trial Examiner
concludes and finds, because of their isolation in the light and weight of all other
evidence, including stipulations and concessions noted above, which clearly estab-
lishes good-faith bargaining, that General Counsel's complaint is not sustained by
the preponderance of evidence.
Upon the foregoing findings of fact, and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of Prudential occur in commerce within the meaning of the
Act.
2. Insurance Agents' International Union, AFL-CIO, is a labor organization with-
in the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices, as alleged in the
complaint, within the meaning of Section 8 (b) (3) of the Act.
[Recommendations omitted from publication.]
15 "Conventional English," said Alfred North Whitehead, " is twin sister to barren
thought." (The Philosophical Review, vol. XLVI, p. 183.)
Paramount Cap Manufacturing Co. and United Hatters, Cap &
Millinery Workers International Union , AFL-CIO. Case No.
14-CA-1529. December 13,1957
DECISION AND ORDER
On March 18, 1957, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
119 NLRB No. 119.
476321-58-vol. 119-51