International Powder Metallurgy Co. Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1961

134 N.L.R.B. 1605 (N.L.R.B. 1961)

INTERNATIONAL POWDER METALLURGY CO., INC. 1605
International Powder Metallurgy Company , Inc. and Inter-
national Union of Electrical , Radio and Machine Workers,
Local 502, AFL-CIO. Cases Nos. 6-CA-1864 and 6-CA-2084.
December 27, 1961
DECISION AND ORDER
On April 26, 1961, Trial Examiner John F. Funke issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices alleged in the complaint and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent did not engage in certain other unfair labor
practices alleged in the complaint. Thereafter, the Respondent and
the General Counsel filed exceptions and briefs in support thereof.'
The Board has reviewed the rulings made by the Trial Examiner 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
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein.
The Trial Examiner found that, after the representation election
of June 16, 1959, and during the bargaining negotiations with the
Union as the exclusive representative of its production and mainte-
nance employees, the Respondent engaged in the following course of
conduct, which the complaint alleges to be violative of Section 8 (a) (5)
and (1) of the Act.
Dilatory tactics: Following Board certification on September 2,
1959, as the exclusive bargaining agent for the Respondent's produc-
tion and maintenance employees at its plant, the Union by letter dated
'September 14, requested a meeting with the Respondent to commence
negotiations. By letter dated September 23 the Respondent requested
a 6-week delay "in order that we may gather the necessary information
so that we may properly negotiate." The Union promptly protested
this delay, but the Respondent ,did not meet with the Union until
November 4, 1959. Again, on May 2, 1960, the Respondent acknowl-
edging receipt of the Union's revised proposed contract requested a
delay untily June 6 for study. In evaluating these incidents in con-
text of the Respondent's other conduct, the Trial Examiner concluded,
and we agree, that they were evidence of proscrastination and delay
on the part of the Respondent in the conduct of the bargaining negoti-
ations with the Union.
I The Respondent has requested oral argument. This request is hereby denied because
the record, the exceptions, and the briefs adequately present the issues and the positions
of the parties.
134 NLRB No. 143.
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent was also dilatory in furnishing the Union with a
workable list of employees with their wage rates and job classifications.
The Union made its first demand for such information on January 11,
1960. The demand was reiterated on August 23 and 31 and Septem-
ber 20, but the requested information was not furnished until Decein-
ber 13, 1960. The Respondent attempts to justify the delay on the
ground that it was ready to furnish this information, if the chief
steward desired the same and he had never made a request for it; that
the Union's first contractual proposal did not include economic issues,
and hence the delay did not retard the bargaining; and that the in-
formation was required for other than bargaining purposes. None of
the Respondent's contentions has merit. If the information sought di-
rectly relates to setting up of'wage rates, the Union is not obliged to
show specific need for such data, nor can any inference of harassment
be drawn from the failure to show such need.2 The Union also made
at least three requests for the names of working foremen, who were
included in the certified unit. The Respondent did not produce these
names until December 13,1960, after the Regional Director specifically
requested the Respondent's representative to designate these fore-
men. Although requested by the Union, the Respondent never, fur-
nished the Union with a seniority list of its employees, or a list of its
employees subject to recall, or the formula for computing its monthly
bonus, which the Trial Examiner found to have been a regular part
of the Respondent's wage policy. As we find, in agreement with the
Trial Examiner, that all this information was necessary and relevant
for the purposes of collective bargaining, the Respondent was under
an obligation to furnish the same to the Union.
Refusal to meet or negotiate: At the first bargaining session held on
November 4, 1959, the Respondent's chief negotiator, Schwabenbauer,
refused to enter negotiations on the ground that one of the members of
the Union's negotiating committee, Heatherdale, was no longer in the
Respondent's employ and therefore not eligible for participation.
Two days later when advised by a Board agent that he acted improp-
erly, he withdrew his objection to Heatherdale's participation. Again,
following the receipt of the notice from the Regional Director that
the Respondent's employees had filed with the Board a decertification
petition he canceled the bargaining meeting scheduled for September
28, 1960, and stated that the Respondent would not negotiate pending
the outcome of the investigation of the petition. When advised by a
Board agent that his position was unlawful, Schwabenbauer reversed
himself and on October 31 advised the Union that he would be avail-
2J I. Case Company ( Rock Island, Illanoas ), 118 NLRB 520, enfd. 253 F 2d 149
(C.A. 7) ; Pane Industrial Relations Committee, Inc ; et at ., 118 NLRB 1055, enfd 263
F. 2d 483 (C.A D.C.).
INTERNATIONAL POWDER METALLURGY CO., INC. 1607
able for negotiation at the Union's convenience.' It is true that the
Respondent in both instances corrected its position, and that these
incidents had no permanent impact on the negotiations; yet they were
symptomatic of the Respondent's attitude and in line with the Re-
spondent's other conduct showing rejection of the principles of col-
lective bargaining. The Trial Examiner also found, on the credited
testimony of Struble and Daley, that from the beginning of the nego-
tiations the Respondent took the position that it would not discuss
wages or so-called economic issues until the contract language on other
issues has been agreed upon and signed. In agreement with the Trial
Examiner, we find that the Respondent's insistence upon the postpone-
ment of a mandatory subject of bargaining is indicative of its desire
not to reach an agreement.
Unilateral changes in terms of employment : On the day following
the June 16, 1959, election, the Respondent without notice to or con-
sultation with the Union discontinued the free coffee and napkin
services for its employees. The Respondent also unilaterally discon-
tinued the payment of its regular bonus, which was part of its wage
structure, for the months of June, July, August, and September, 1959.
The free services and the payment of the monthly bonus were even-
tually reinstated by the Respondent. The employees, however, were
not made whole for the bonus withheld until after the filing by the
Union of unfair labor practices charges and the execution on March
10, 1960, of the informal settlement agreement. Pursuant to this
agreement, the Respondent also undertook to refrain from further
"unilateral changes in the monthly bonus plan, free coffee service or
other terms or conditions of employment."
In December 1960, the Respondent without notice to or consultation
with the Union transferred to Ridgway Tool & Die Corporation, which
was formed by the Respondent for the purpose of this transfer, some of
the equipment of its tool and die shop and 12, out of a total of 14,
employees. As we find, because of the interlocking directors, common
stock ownership, and control, that the Respondent and Ridgway for
the purpose of collective bargaining were a single employer,4 we find
3 While the Union also contributed to the delay when , following the filing of the charges
in the instant case , It failed to resume negotiations after October 31 on the ground that
pending the investigation of the charges any meeting would be useless, the Union Is not
the Respondent in this case, and the Union 's Inaction is no excuse for the Respondent's
own procrastination.
4 The Trial Examiner found that Ridgway was incorporated in July 1960 by president,
vice president, and 1 of the directors of the Respondent , and that 2 of them then became
the president and vice president of Ridgway ; that 14 of the 16 stockholders of the
Respondent became stockholders in Ridgway ; and that voting control of Ridgway vested
in the Respondent and its stockholders . It further appears that, except for the fact that
Ridgway is engaged In operations at a new building located 2 miles away , Its business-
making tools and dies for the Respondent , the companies in which the Respondent or its
stockholders or officers have Interest , as well as for other companies-has not changed.
Ridgway's labor force, except for two new men hired after the transfer, consists of the
rank-and-file employees and supervisors who had been terminated by the Respondent and
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further that the transfer of the shop employees without any notice or
consultation with the Union is a further indication of the Respondent's
disregard for the performance of its obligation to bargain with the
Union with respect to all terms and conditions of their employment.
Indeed, the Respondent's unilateral action in effecting transfer
amounted to a concealment of the impending move from the Union.
When the Union's negotiating committee, disturbed by the rumor
circulating in the plant that the Respondent was about to transfer the
tool and die shop employees to Ridgway, inquired in August 1960
of the Respondent's chief negotiator, Schwabenbauer, if the rumor
had any basis in fact, the latter replied that he knew nothing about it,
thus by implication assuring the committee that no such move was
contemplated. By December 20, 1960, the Respondent confronted
the Union with a fait accompli. Most of the shop equipment and 12
employees had already been transferred to Ridgway, but Schwaben-
bauer still could or would not tell the committee about the conditions
of the transfer.
In summary, the Trial Examiner found, and we agree, that after
the representation election of June 16, 1959, and in the course of the
bargaining negotiations with the Union which continued without any
result over a period of 17 months the Respondent • engaged in the
following conduct. It refused, or unreasonably delayed, to supply
the Union with the information which was relevant and necessary for
collective bargaining; engaged in dilatory tactics in refusing to meet
with the Union on various grounds that had no basis in law ; ada-
mantly and arbitrarily refused to discuss with the Union economic
issues until the contract language on other issues was agreed upon
and signed; it unilaterally discontinued the free coffee and napkin
services and withheld payment of its regular bonus for 4 months in
violation of its statutory duty to discuss with the Union as the bar-
gaining representative all matters relating to terms and conditions
of employment; and finally, without notice to or consultation with
the Union, it attempted to modify or abolish the certified bargaining
unit by transferring its tool and die shop employees to a new plant.
On the entire record, and upon the totality of its conduct, we find
that the foregoing practices of the Respondent plainly demonstrate
that it did not bargain with the Union in good faith, and that by
engaging in such conduct the Respondent violated Section 8(a) (5)
and (1) of the Act.
immediately rehired by Ridgway at the same rate of pay. Whenever necessary, Ridgway
makes use of the Respondent 's maintenance employees, its typewriter, and its bulldozer,
for which services it is charged by the Respondent. President of Ridgway, who is also
vice president of the Respondent , occupies and operates from the office on the Respond-
ent's premises In similar situations , the Board found companies so interrelated to be
a single employer for bargaining purposes. Royal Oak Tool and Machine Company, et al.,
132 NLRB 1361; Thomas 8 San Giacomo , Inc., 130 NLRB 1588.
INTERNATIONAL POWDER METALLURGY CO., INC.
THE REMEDY
1609
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom, and to
take certain affirmative action to effectuate the policies of the Act.
As we have found that the Respondent and Ridgway for the pur-
poses of collective bargaining constitute a single employer and that
for this reason Ridgway's employees are but a part of the certified
unit, we shall order the Respondent, upon request, to bargain with
the Union as the exclusive representative of all its employees in the
appropriate unit, including all employees in the production and
maintenance departments at Ridgway.'
ORDER
Upon the entire record in this 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, International
Powder Metallurgy Company, Inc., Ridgway, Pennsylvania, its of .-
cers, agents, successors, and assigns, shall :
1. Cease and desist from refusing to bargain collectively with the
International Union of Electrical, Radio and Machine Workers, Local
502, AFL-CIO, as the exclusive representative of its employees in
the unit certified by the Board with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Upon request, bargain collectively with said Union as the ex-
clusive representative of the employees in the certified unit, including
all the employees in the produtcion and maintenance department of
Ridgway Tool and Die Corporation, and embody any understanding
reached in a signed contract.
(b) Furnish the Union with a seniority list, a list of employees sub-
ject to recall, and with the formula or method of computing its bonus.
(c) Post at its plant and at the plant of Ridgway Tool and Die
Corporation, Ridgway, Pennsylvania, copies of the notice attached
.hereto marked "Appendix." 6 Copies of said notice, to be furnished
by the Regional Director for the Sixth Region, shall, after being duly
signed by an authorized representative of Respondent, be posted by
Respondent immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
a N L.R B. v. Hopwood Retinning Co, Inc., 98 F . 2d 97 (C.A. 2).
s In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixth Region, in writing,
within 10 days from the date of this Order, what steps it has taken
to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO 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, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with International
Union of Electrical, Radio and Machine Workers, Local 502,
AFL-CIO, as the exclusive representative of all our employees
in the appropriate unit described below, and will, upon request,
bargain with it in such unit with respect to rates of pay, wages.
hours of employment, and other terms and conditions of employ-
ment, and if an agreement is reached we will embody such agree-
ment in a signed contract. The appropriate unit consists of:
All production and maintenance employees at Respondent's
Ridgway, Pennsylvania, plant, including the working fore-
men, and the employees in the production and maintenance
departments of Ridgway Tool and Die Corporation, Ridg-
way, Pennsylvania, but excluding all office clerical employees,
guards, professional employees, and supervisors as defined
in the Act.
INTERNATIONAL POWDER METALLURGY
COMPANY, INC.,
Employer.
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with the General Counsel and International Powder Metallurgy
,Company, Inc., herein called the Respondent or IPM , represented , came on to be
heard before John F. Funke, the duly designated Trial Examiner at Ridgway, Penn-
sylvania, on February 7, 8, and 9 , 1961 , upon the consolidated and amended com-
plaint of the General Counsel and the answer and amended answer of the Respondent.
The consolidated complaint, as amended , alleged that Respondent failed to bargain
in good faith with the International Union of Electrical , Radio and Machine Workers,
INTERNATIONAL POWDER METALLURGY CO., INC. 1611
Local 502, AFL-CIO, herein called the IUE or the Union , thereby violating Section
8 (a) (5) and (1) of the Act.
The answer denied the commission of any unfair labor practices.
The parties waived oral argument and briefs were received from the parties on
April 10.1
Upon the entire record in this case , and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
- I. THE BUSINESS OF THE COMPANY
Respondent is a Pennsylvania corporation, maintaining its principal place of
business at Ridgway, Pennsylvania. It is engaged in the manufacture, sale, and
distribution of bearings and motor specialties composed of metal powder It annually
purchases raw and other materials valued in excess of $500,000 directly from
business concerns outside the Commonwealth of Pennsylvania. It annually sells
and ships finished products valued in excess of $50,000 to customers outside the
Commonwealth.
The Respondent concedes and I find that it is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 502 is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. The background
Following an election conducted on June 16, 1959, the IUE was certified as the
collective-bargaining representative of Respondent's production and maintenance
employees on September 2.2 The parties agree and I find that the unit certified is
appropriate.
The parties first met on November 4, 1959, and bargaining continued, with inter-
ruptions, until January 26, 1961. The IPM was represented by Jack Schwabenbauer,
its personnel director, and Frank Lyle. The IUE was represented by Vincent Daley,
international representative, Robert Struble, president of Local 502, and the plant
committee.
On October 8, 1959, the Union filed charges alleging violation of Section 8(a) (1),
(3), and (5) of the Act against Respondent (Case No. 6-CA-1864). The charges
were amended on October 29 and December 10 and on March 18, 1960, an informal
settlement, to which the Union was a party was executed. On December 23, 1960,
the settlement agreement was set aside by the Regional Director and the consolidated
complaint herein was issued.
Paragraph 8 of the complaint sets forth 11 specific allegations of refusal to bargain
in good faith, which will be reviewed seriatim.
2. Dilatory and delaying tactics
Following its certification on September 2, the Union, by letter dated September 14,3
requested a meeting with Respondent to commence negotiations. By letter dated
September 23, Respondent requested a 6 weeks' delay "in order that we may gather
the necessary information so that we may properly negotiate." 4 The Union promptly
protested this delay but Respondent did not meet with the Union until November 4,
1959.
Again on May 2, 1960, Respondent acknowledged receipt of the Union's revised
proposed contract and requested a delay until June 6 for study .5
I Respondent, the General Counsel, and the Trial Examiner have all moved to make
certain corrections In the record The motions have all been granted
2 At the election, the IUE received 59 votes, the incumbent certified union (the IPM
Employees Club) received 43 votes, 1 vote was against any union, and 12 votes were
challenged. Respondent filed objections to the conduct of the election which were over-
ruled by the Board.
3 General Counsel's Exhibit No. 19.
4 General Counsel's Exhibit No. 20.
5 Respondent's Exhibit No 10.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Standing alone and removed from the context of other conduct on the part of
Respondent as found herein, I do not find either of these requests for delay for
purposes of contemplation a violation. They may not be evaluated in isolation,
however, and when considered with other evidence of procrastination and delay in
the submission of relevant information, as found infra, I find that they constitute
substantial evidence of unwillingness on the part of Respondent to meet its obliga-
tion under Section 8 (a) (5) of the Act.6
3. Unilateral change and discontinuance of the employees' bonus, free coffee
service, etc.
When the election at which the IUE was designated bargaining representative
was held on June 16, 1959, the IPM had an established practice of paying a monthly
bonus to its employees (there had been months in 1952 and 1954 when no bonus
was paid) and it also provided free coffee during the designated coffee break periods
and free napkins. On the day following the election the free coffee and free napkin
services were discontinued and the employees were obliged to pay for the coffee and
napkins themselves. In addition, no bonus was paid employees at the end of June
nor for the months of July, August, and September. The free coffee and napkin,
services were voluntarily reinstituted by Respondent about 1 month after their dis-
continuance. While Respondent contends that neither ,the bonus nor the free serv-
ices constituted terms and conditions of employment and that, therefore, the ad-
mittedly unilateral change in the conditions following the election did not violate
Section 8(a) (5), I disagree. I am, however, unwilling to make any finding of
violation based on this unilateral action in this case for a different reason.
In the settlement agreement of March 18, Respondent agreed that it would make
no changes in its monthly bonus plan, free coffee service, or other terms and condi-
tions of employment without consulting the IUE. Not only has the Respondent
abided by its agreement but the Respondent, pursuant to the agreement, paid its
employees negotiated sums for the bonuses which had been discontinued. While the
General Counsel agrees that compliance with the terms of the agreement has re-
lieved the, Respondent of liability under Section 8(a) (3) as to these violations, he
would revive them as violations of'Section 8(a)(5). I think such action highly
improper. I believe that where the Respondent has fully complied with the specific
requirements of a settlement agreement and has remedied the unfair labor practices,
by restoration of the conditions and by making the employees whole for any losses
incurred by reason of such practices he is then entitled to be free from litigation
respecting them. While this case is not on all fours with the recent Peyton Packing
case 7 in which the Board criticized the General Counsel for maladministration of
the Act in relitigating under Section 8(a)(5) facts previously found to have been a,
violation under Section 8(a)(1) and also relitigating the nature of the strike,8
the distinction is not one of substance. The instant cases differ only in that -here
a settlement agreement and compliance therewith had expunged the effect of certain'
unfair labor practices and the General Counsel now seeks to litigate these issues
merely because other and unrelated unfair labor practices are alleged to have been,
committed. Such procedure on the part of a Government agency I find inconsonant
with proper standards of equity and fair dealing and should justification be asserted
on past practice then it is high time the practice was corrected.
I shall not, in this case, make any finding of a violation of the Act based upon the
discontinuance of the bonus nor .the coffee and napkin services.9
4. Failure and refusal to bargain with the union committee because one of
its members was not an employee
Paragraph 8(c) of the complaint refers to a single incident, paltry in significance.
At She first meeting between the parties on November 4, 1959, a former employee
of Respondent named Heatherdale appeared -as a member of the Union's negotiating
committee and Schwabenbauer refused to enter negotiations on the ground that
9 See, for delay encompassed with other evidence of refusal to bargain, J. H. Rutter-Rem
Mfg. Co., 86 NLRB 470.
7 Peyton Packing Company, Inc , 129 NLRB 1358.
9 Reference is made to Peyton Packing Company, Inc., 129 NLRB 1275, in which Trial'
Examiner Bennett, in an Intermediate Report Issued September 16, 1959, found that the
discontinuance of a bonus was in violation of Section 8(a) (1). In the Peyton case re-
ferred to, supra, the General Counsel relitigated the same issue , alleging violation of
Section 8 ( a) (5) and relitigated the strike, found by Bennett to have been an economic
strike, as an unfair labor practice strike.
a Cf. Efco Manufacturing , Ino., 108 NLRB 245, 247, 248, and cases cited.
INTERNATIONAL POWDER METALLURGY CO., INC. 1613
Heatherdale was not eligible for participation.10 Two days later, when Schwaben-
bauer was advised by a Board agent that he had acted improperly in objecting to
Heatherdale, Schwabenbauer withdrew his objections and the next meeting, Novem-
ber 12, was attended by Heatherdale. Agreeing that this one refusal to meet was
in technical violation of Section 8(a) (5) regardless of Schwabenbauer's belief that
his refusal was justified, I shall recommend that paragraph 8(c) be dismissed on
the ground, not of isolation, but in deference to the principle, de minimis no curat
lex. Neither a finding of violation nor the issuance of a remedial order based on a
technical violation quickly corrected and totally lacking in impact on negotiations
or effect on the conduct of the parties would serve any purpose.
5. Failure and refusal to provide the Union with job classifications and wage
rates, failure to designate working foremen, and failure to provide seniority
and recall lists
Subsections (d), (e), (f), and (g) of paragraph 8 of the complaint are closely
related and subject to joint discussion.
On January 11, 1960, the Union addressed a letter to Respondent requesting a
list of all current job titles and wage rates.ll (The same request had been made at
the meeting of January 5.) On January 13 Respondent replied, stating "it is our
understanding that it is not necessary for us to submit this information to the union
under the Act." 12 Struble, president of Local 502, testified that he later renewed
his request for this information and that on March 25 Respondent wrote the Union
advising that the repeated requests for classifications and rates had been reviewed
and that the time was approaching when they would be needed, that Respondent
was preparing such a list and would discuss it at the next meeting.13 On June 6,
1960, the Union finally received such a list 14 but objected to it on the ground the
employees could neither understand it nor designate their own classifications. The
Union made further requests for intelligible lists on August 23,15 August 31,16 and
September 20.17 Respondent, on September 21, replied that it would have such a
list available at the next meeting 18 scheduled for September 29. This meeting,
however, was canceled by the Respondent because a decertification petition had been
filed. Negotiations were later resumed and on October 31 the Union was given a
list of employees, their classifications, and their rate of pay.19 Although Struble
objected to this list I find that it provided adequate information for intelligent bar-
gaining. (Struble's objection was that the list included employees outside the
bargaining unit.)
Struble also testified that he made at least three requests for the names of working
foremen who were included in the certified unit . Schwabenbauer testified that he
never provided the Union such a list until December 13, 1960, at a meeting attended
by Regional Director Shore. At this meeting Shore specifically requested Schwab-
enbauer to designate the foremen on the list ,the parties were using and Schwaben-
bauer complied.
Again, according to Struble, the Union requested a seniority list and a list of
employees subject to recall. These requests were made on November 4, 1959, and
January 25 and February 22, 1960. Schwabenbauer's answer was that the Re-
spondent was a small company and that the stewards or the employees could easily
compile such a list. Later an understanding was reached that the steward, if he
could not get the information himself, could go to Schwabenbauer and get it. No
complete seniority list or recall list was ever given the union by the Respondent.
Schwabenbauer, in his testimony, admitted that no such lists were ever given the
Union but stated that in May 1960 the Company published its vacation list 20 which
10 Schwabenbauer had no previous experience in labor relations prior to his appointment
as director in July 1959 , a fact made evident by the testimony in this case . (While
Schwabenbauer 's original testimony was that he was appointed in July 1958 , subsequent
testimony indicates this was an error and that he was not appointed until after the
'Union won the election in June of 1959.)
13 General Counsel's Exhibit No 25.
12 General Counsel's Exhibit No. 26.
13 General Counsel's Exhibit No. 27.
14 General Counsel's Exhibit No 13
11 General Counsel's Exhibit No. 28.
10 General Counsel's Exhibit No 29
17 General Counsel's Exhibit No. 30.
11 General Counsel's Exhibit No. 31.
19 General Counsel's Exhibit No. 32.
20 Respondent' s Exhibit No. 3.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
listed the employees in order of seniority and the Union could have made copies of
this list. Schwabenbauer also admitted that Respondent kept its list of employees
available for recall.
I find that all of this information was necessary and relevant for the purposes of
collective bargaining and that all of it was readily available to Respondent and could
have been made available to the Union with little or no effort or expense. Under
these circumstances the excessive and unwarranted delay in providing the Union
with job classifications, wage rates, the designations of working foremen, and the
failure to provide either a seniority list or a recall list constituted independent viola-
tions of Section 8(a) (5) of the Act. I know of no obligation on the part of the
Union to seek this information by word of mouth inquiry among the employees or
by copying the vacation list posted by the Company.
6. Unilateral discontinuance of the tool and die shop without prior
consultation with the Union
Gilbert Hoehn, Respondent's vice president of engineering, testified Ridgway Tool
and Die Corporation was incorporated on July 19, 1960, obtained the necessary
financing in August 1960, and began operations in December 1960. The incor-
porators were Gilbert Hoehn, who became president of Ridgway; H. J. Hoehn, his
brother, who became acting vice president of Ridgway and who was an officer of
IPM; and M. J. Victor, who assumed no office with Ridgway but who was president
of IPM. It was stipulated that 14 of the 16 stockholders in IPM became stock-
holders in Ridgway. IPM also held Ridgway stock so that voting control of Ridg-
way was vested in the stockholders of IPM. (Ridgway had 19 stockholders.)
Hoehn testified that the idea of a separate corporation which would take over
the tool and die business of IPM was conceived by him in 1958 and the minutes of
IPM for December 29, 1958, reflect an agreement authorizing acceptance of IPM
of an offer to purchase its .toolroom equipment by Ridgway (not yet in existence).21
Delay in effectuating incorporation and operation of Ridgway was attributed to the
necessity for acquiring property, building a plant, and financing the operation.22
Hoehn testified that he believed that a separate corporation could operate a tool
and die shop run as a job shop at a profit whereas the IPM tool and die shop was
not showing a profit in 1958. There is nothing .to discredit his testimony that this
was the reason the board of directors of IPM authorized the creating Hof Ridgway and
a sale of the shop.
When Ridgway commenced operations in December 1960, the tool and die em-
ployees of IPM were offered employment and 12 of the 14 employed at IPM left
and were hired by Ridgway. (Two other employees were hired by Ridgway and
four remained at IPM.)
Hoehn admitted that be hoped to hire the IPM men at Ridgway and that the IUE
was neither consulted regarding the sale of the tool and die machinery by IPM nor
by the release of IPM employees and their subsequent hire by Ridgway. It is this
failure to consult which is the issue and not.the corporate relationship between IPM
and Ridgway 23
It has been generally held that the impact of curtailment of employment due to
discontinuance of a part of the bargaining unit, whether by shutdown, sale, con-
tracting out of work, or consolidation, is a ibargainable issue The decision of the
Supreme Court in the Telegraphers case 24 fully supports that proposition as do the
decisions of the Board itself.25 This is true even though, as I find here, the employer
is motivated by economic rather than discriminatory factors in reaching decision25
Finding, as I do, that the sale of assets and transfer (through termination and new
hire) of employees of Respondent's tool and die shop to a corporation subject to
almost identical ownership and to the same control .was a proper subject for collec-
n Respondent's Exhibit No 1
22 Financing was finally obtained , in part, from Ridgway Industrial Development Corpo-
ration and Pennsylvania Development Authority The plant acquired was the former Ken-
Moor Oldsmobile building located about 3 miles from IPM in Ridgway.
xi A great deal of testimony , which I find for the most part irrelevant to the issues
herein , was taken respecting work done by Ridgway foi IPM and other corporations in
which IPM or its stockholders and officers had an interest (It is also true that Ridgway
did business with companies entirely independent of IPM.)
24 The Order of Railroad Telegraphers, et al. v. Chicago f North Western R. Co., 362
US 330.
The Timken Roller Bearing Company, 70 NLRB 500; Shamrock Dairy, Inc, et al
124 NLRB 494.
26 The Order of Railroad Telegraphers, etc., supra; Timken Roller Bearing, supra.
INTERNATIONAL POWDER METALLURGY CO., INC. 1615
tive bargaining with the certified Union, I must find that such sale and transfer
without notice to or consultation with the Union was a violation of Section
8(a)(5) 21
The General Counsel in his brief asks that the Respondent be directed to bargain
for the employees of Ridgway although Ridgway is not a Respondent herein. The
fact that any order entered respecting this violation would be meaningless unless it
encompassed bargaining for the transferred employees does not dispose of that
troublesome omission. In the Hopwood case 28 the Second Circuit refused to en-
force its order against Monarch, a corporation formed and controlled by Hopwood,
because Monarch had not been made a proper party. Its order did, however, re-
quire cooperation from Monarch in order to obtain compliance from Hopwood.
I shall, therefore, in my order directing the Respondent to bargain upon request,
include the employees transferred to Ridgway. Appreciating that the order and its
enforcement may present awkward problems, I believe that where the choice lies
between permitting an employer to deprive his employees of their right to repre-
sentation by his own unlawful act and a strained effort to enforce that right the
choice must lie with the latter alternative. ,
7. Refusal to discuss the formula for computing the monthly bonus
On January 5, 1960, according to the testimony of Struble, a bargaining meeting
was delayed becaus Schwabenbauer was engaged with a Board agent in computing
a settlement of the bonuses which had been withheld in June, July, August, and
September, 1959. The Board agent advised Struble that, although he was working
out a settlement figure, he did not know the Respondent's formula for computing
the bonus. Daley, the Union's International representative, testified that on the
same day he was advised by the Board agent that there was no formula for com-
puting the bonus and that the settlement figure was arrived at by averaging the
bonus over a period of years 2s
The bonus formula did not again come up for discussion, according to Daley, until
December 20, 1960, when he asked Schwabenbauer for the formula because the
employees complained that the bonus had been reduced over the past 2 months.
Schwabenbauer then told Daley that the Board had the formula and that he could
get it from the Board Daley repeated his requests for the bonus formula on
January 5 and 12, 1961, and received the same answer. He never did receive the
formula.
Schwabenbauer's testimony does not contradict the essential facts. He testified
that on November 6, 1959, Respondent's president, M. T. Victor, sent the Board a
letter which set forth Respondent's method of computing the bonus. (Respondent's
Exhibit No. 4.) Although Schwabenbauer testified that he had a copy of this letter
in his possession while negotiating settlement with the Board he also testified that he
did not know the formula, completely contrary statements. The letter to the Board
does give a general outline of the Respondent's method of fixing the bonus and I
find that the bonus was a regular part of Respondent's wage policy and that the
Union was entitled to receive the information requested.30 I therefore find that
Respondent was in violation of Section 8(a) (5) of the Act in failing and refusing to
disclose its bonus policy. If Schwabenbauer did not know or understand the
formula then Respondent should have designated a person who did have such
knowledge to make its formula available.
8. Refusal to discuss wage provisions until all other clauses
had been agreed upon
On the credited testimony of Struble and Daley I find that Respondent took the
position from the beginning of negotiations that it would not discuss wages or the
so-called economic issues until the contract language on other issues had been agreed
27 The recent decision of the Board in Fibreboard Paper Prodvvcts Corporation, 130
NLRB 1558, would appear to be in conflict with this holding. But, as the dissent of
Member Fanning points out , the decision of the majority also appears to be in conflict
with the Telegraphers case, supra, and , to that extent, I do not find it controlling The
prerogative of the Supreme Court to reverse the Board is not subject to a reciprocal
prerogative.
28 N L.R B. v. Hopwood Retinning Co., Inc., 98 F. 2d 97 (C.A. 2).
2D The Board agent 's statement was made in the presence of Schwabenbauer and I find
it binding upon Respondent to the extent that Schwabenbauer , the designated bargaining
agent, did not know the formula.
80 See Peyton Packing Company, Inc., supra.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon and signed 31 While it is true that so-called economic issues are often post-
poned in negotiations until agreement on other issues has been reached this is by
mutual consent of the negotiators . I do not believe that either party to bargaining
sessions has the right to dictate the precedence of issues and there may well be
reasons why a quick agreement on wages is deemed essential to one party or the
other. While I do not think it is within the province of the Board to suggest bar-
gaining procedures , I do find that adamant insistence by either party to a post-
ponement of a mandatory subject indicative of desire not to reach agreement 32
9. Refusal to bargain with the Union after September 26, 1960
On September 22, 1960 , the employees at IPM filed a decertification petition with
the Sixth Region . A bargaining meeting had been scheduled for September 28 but
when , on September 26, Respondent received notice of the filing of the petition
from the Regional Director 33 it wrote the Union canceling the meeting pending the
outcome of the investigation . 34 Shortly after receiving this letter the Union filed
the charges in the instant case, October 13, 1960 . 35 On October 31, 1960, Re-
spondent wrote the Union advising it that it would be available for negotiations at
the Union's convenience . 36 The Union did not accept the offer to meet on the
ground that , pending investigation of the unfair labor practice charges, meetings
would be useless . The next meeting was held December 20 , 1960, after the parties
had met with the Regional Director.
I am aware that a Respondent may not assert a good-faith doubt of a union's
majority status and so excuse its refusal to bargain when the loss of majority status
may be attributed to its own unfair labor practices 37 Since I have found that the
Respondent had engaged in various unfair labor practices prior to September 26, I
find again that the Respondent was technically in violation of Section 8(a)(5) in
canceling the meeting scheduled for that day. I find, however, that the effects of this
violation were expunged by the reasonably prompt reversal of its policy by its offer
to renew negotiations on October 31, 1960-an offer which the Union rejected.
I shall therefore recommend that subsection (k) of paragraph 8 of the complaint
shall be dismissed . Iv. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices , I shall recommend that it cease and desist thereform and take
certain affirmative action to effectuate the purposes of the Act.38
Having found that Respondent refused to bargain with the Union in violation of
Section 8(a)(5) and ( 1) of the Act, I shall recommend that Respondent, upon
request, bargain with the Union as the exclusive representative of its employees
within the appropriate unit , including the employees transferred to Ridgway Tool
and Die Corporation , concerning rates of pay, wages , hours, and other terms and
conditions of employment and, if an understanding is reached , embody such under-
standing in a signed agreement.
Upon the foregoing findings of fact , and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent 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).
2. International Union of Electrical, Machine and Radio Workers, Local 502,
AFL-CIO, is a labor organization within the meaning of Section 2(5) and is and at
all times since its certification has been the exclusive bargaining representative of
Respondent 's production and maintenance employees , including working foremen.
Si The Union 's letter enclosing its first proposed contract suggested that economic issues
be postponed but I find that the Union retreated from this position during negotiations.
33Vanette Hosiery Mills , 80 NLRB 1116, 1128 . Cf. Valley City Furniture Company,
110 NLRB 1589.
&3 Respondent 's Exhibit No 18.
34 General Counsel's Exhibit No 31.
85 General Counsel's Exhibit No. 1-g.
'5 Respondent 's Exhibit No 21.
37 Celanese Corporation of America, 95 NLRB 664, 673; Franks Bros Company v.
N L It B , 321 U. S. 702, 705
3s Since a list of all employees together with their wage rates and classifications was
provided the Union on October 31, 1960, and the working foremen have been designated,
I shall not recommend that the Respondent be required to furnish this information again
unless substantial changes have been effected in these lists . This problem can be resolved
in compliance.
AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 1617
3. By refusing to give the Union a seniority list of its employees , a list of its
former employees subject to recall, and the formula and method of computing its
monthly bonus ; by delay in providing the Union with a workable list of employees
with the wage rates and job classifications and a designation of its working foremen;
by the sale of the assets of its tool and die shop and the transfer of its tool and
die employees and discontinuance of their work without notice .to or consultation
with the Union; by refusing to discuss economic issues until all other issues had
been agreed upon; and by engaging in various dilatory tactics as found herein,
Respondent has failed to bargain in good faith with the exclusive bargaining repre-
sentative of its employees in an appropriate unit in violation of Section 8(a)(5)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
American Federation of Television and Radio Artists , San Fran-
cisco Local and National Association of Broadcast Employees
and Technicians , Local 55 and Great Western Broadcasting
Corporation , d/b/a KXTV. Case No. 00-CC-234. December 27,
1961
DECISION AND ORDER
On May 4, 1961, Trial Examiner Howard Meyers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions to
the Intermediate Report and a supporting brief and the Charging
Party filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and finds merit in the Respondents' exceptions. Accordingly,
the Trial Examiner's findings, conclusions, and recommendations are
adopted only to the extent that they are consistent herewith.
Tim, FACTS '
A primary dispute between the Respondents and KXTV resulted in
a strike which commenced about the end of September 1960, and
The facts are set forth as found by the Trial Examiner based on stipulations sub-
mitted at the hearing and, therefore , not excepted to. The Respondents did except to the
failure of the Trial Examiner to set forth additional stipulated facts . These are added.
134 NLRB No. 141.
630849-62-vol . 134 103