Jeffrey Stone Co., Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1968

173 N.L.R.B. 11 (N.L.R.B. 1968)

JEFFREY STONE CO. 11
Jeffrey Stone Co., Inc. and International Union of
Operating Engineers , Local 382C, AFL-CIO. Case
26-CA-2851
September 27, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On June 14, 1968, Trial Examiner John F. Funke
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision The Trial Examiner further
found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint,
and recommended that those allegations be dismissed.
Thereafter, the Respondent and the General Counsel
filed exceptions and a cross-exception, respectively,
to the Trial Examiner's Decision. The General Coun-
sel filed a statement in support of his cross-exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Jeffrey Stone Co., Inc.,
North Little Rock, Arkansas, its officers, ar' nts,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F FuNKE, Trial Examiner Upon a charge filed
August 14, 1967, and an amended charge filed October 30,
1967, by the International Union of Operating Engineers,
Local 382C, AFL-CIO, herein the Union, against Jeffrey
Stone Co , Inc., herein the Respondent, the General Counsel
issued a Complaint and Notice of Hearing dated February 19,
1968, alleging Respondent violated Section 8(a)(1) and (5) of
the Act
The answer of the Respondent denied the commission of
any unfair labor practices
This proceeding, with all parties represented, was heard
before me at Little Rock, Arkansas, on April 10, 1968, and at
the conclusion of the hearing the parties were given leave to
file briefs. Briefs were received from the General Counsel and
the Respondent on May 22, 1968.
Upon the entire record in this case and from my observa-
tion of the witnesses while testifying, I make the following-
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is an Arkansas corporation having its office and
principal place of business at North Little Rock, Arkansas,
where it is engaged in the sale and distribution of crushed
stone. During a representative year Respondent purchases
goods and materials valued in excess of $50,000 directly from
points and places outside the State of Arkansas Respondent is
engaged in commerce within the meaning of the Act.
II LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
On or about September 20, 1966, the Union was certified,
following a National Labor Relations Board election, as the
exclusive collective-bargaining agent of Respondent's employ-
ees in a unit described as follows.
All employees of Respondent's North Little Rock plant,
including production and m. intenance employees, exclud-
ing office clerical employees, watchmen, guards and super-
visors as defined within the meaning of the Act.
On or about August 14, 1967, the Union filed a charge,
supra, alleging Respondent failed to bargain in good faith with
the Union, thereby violating Section 8(a)(5) and (1) of the
Act.'
On or about October 31, 1967, the Respondent and the
Union executed and entered into a Settlement Agreement
which was approved by the Regional Director for the
Twenty-sixth Region on or about October 31, 1967, providing
inter alga , that Respondent would comply with all the terms
and provisions of the "NOTICE TO ALL EMPLOYEES,"
attached to and made a part of said Settlement Agreement
which Notice provided with regard to the Section 8(axl) and
(5) portions as follows
WE WILL NOT unilaterally change wages, rates of pay, or
any other term or condition of employment of any employee
in the bargaining unit described below without first giving
notice to and discussing the matter with International
Union of Operating Engineers, Local 382C, AFL-CIO.
1 The employees had struck the plant on April 17 , 1967, in support
of their demands
173 NLRB No. 3
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain collectively with Interna-
tional Union of Operating Engineers, Local 382C, AFL-
CIO, as the exclusive representative of all employees in the
bargaining unit described below
WE WILL, upon request, bargain with International Union
of Operating Engineers, Local 382C, AFL-CIO, as the
exclusive representative of all employees in the appropriate
bargaining unit with respect to wages, rates of pay, hours of
employment and other terms and conditions of employ-
ment, and embody in a signed agreement any understanding
reached The bargaining unit is.
All employees of the North Little Rock plant, including
production and maintenance employees, excluding office
clerical employees, watchmen, guards, and supervisors as
defined within the meaning of the Act
WE WILL NOT,in any manner interfere with, restrain or
coerce our employees in the exercise of their rights to form
labor organizations, to join or assist International Union of
Operating Engineers, Local 382C, AFL-CIO, or any other
labor organization, to bargain collectively through represen-
tatives of their own choosing and to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection and to refrain from any or all such
activities
On or about October 30, 1967, the Union filed an amended
charge alleging Respondent had failed to bargain in good faith
with the Union since February 14, 1967, in violation of
Section 8(a)(5) and (1) and had failed to reinstate six strikers
in violation of Section 8(a)(3) and (1) of the Act. Thereafter
the Regional Director, on February 19, 1968, vacated and set
aside the Settlement Agreement set forth above and issued
complaint alleging Respondent violated Section 8(a)(5) and (1)
of the Act2 by
(1) Refusing, since November 6, 1967, to bargain in good
faith with the Union
(2) Refusing, since November 6, 1967, to bargain in good
faith with the Union concerning a check-off clause
(3) Refusing to bargain in good faith with the Union and
granting a unilateral increase to its employees on April 21,
1967 (These allegations refer to periods prior to the Settle-
ment Agreement.)
Before considering the presettlement conduct of the Re-
spondent it is necessary to establish a postsettlement violation.
Consideration therefore, would ordinarily first be given to
evidence sustaining (1) and (2) above and returning to the
presettlement conduct only if an independent violation of the
Settlement Agreement had been found.
In Northern California District Council of Hodcarriers and
Common Laborers of America (Joseph's Landscaping Service),
154 NLRB 1384, the Board overruled Larrance Tank Corpor-
ation, 94 NLRB 352, and held that presettlement conduct
establishing the motive or object of a Respondent could be
received in evidence to show the motive or object of its
postsettlement activities Larrance was overruled in a footnote
to the decision so there is no explication nor rationale for the
reversal. Nor is any guideline given as to the nature and
quantity of the proof in the postsettlement conduct which
would require resort to the presettlement conduct. In Clover-
field Cold Storage Co., 160 NLRB 1484, and Kay Electronics,
167 NLRB No. 161, the Board affirmed the Hodcarriers rule in
footnotes, so the theory of the Board has not been expressed
in other than ipsi dixit rationale In all three of these cases
independent violations were found in the postsettlement
conduct of the respondents so the extent to which an
Examiner may rely on presettlement conduct and the situa-
tions in which examination of such conduct is permissible are
left in doubt
In view of these decisions, however, I think that, particular-
ly in refusal to bargain cases, a more orderly presentation of
the facts will result from reciting them in chronological order
B. PresettlementNegotiations
Following the certification of the Union on September 20,
1966, its president, V. H. Williams, wrote Respondent request-
ing bargaining meetings (General Counsel's Exhibit 2 )
Williams, together with W C Webb and H. D. Mayfield, union
representatives, met with B S. Clark, Respondent's attorney,
on October 21 (Clark continued as Respondent's chief
negotiator throughout the proceedings ) Williams testified3
that at this meeting the Union submitted its usual "Articles of
Agreement" to Clark who objected to Articles I, II and III and
asked for time to study the agreement. (General Counsel's
Exhibit 3 )
Following this meeting the Union, through Williams, made
efforts by letters and telegram to schedule the next meeting 4
When these efforts proved fruitless Williams contacted both
the Federal Mediation and the Arkansas State Labor Depart-
ment and a meeting was finally held with Clark and Jeffrey,
president of Jeffrey Stone, on December 20 No agreement
was reached at this meeting since Clark stated the Union's
proposed agreement proposed was "too radical" for accep-
tance No counterproposal was submitted by Respondent.
Specifically Respondent rejected the seniority, grievance,
wage, vacation and no-strike provisions.
The next meeting was held on January 6, 1967. Clark again
represented the Respondent but Jeffrey, although his presence
was requested by the Union, was not present The Federal
Mediator was. There was disagreement upon the same issues,
no counterproposal was offered and no progress was made
At the next meeting the Union submitted a revised proposal
calling for 10 cents across-the-board increase with a 15-cent
adjustment for skilled employees and a 5-cent adjustment for
semiskilled It substituted a $10 per month hospitalization
plan in lieu of vacation and reduced its request for paid
holidays from seven to two. Clark's response was that he
would have to take this proposal, in view of the money
involved, back to Jeffrey The Union again requested that
Jeffrey be present at future meetings
At the next meeting on February 1 Clark told the Union he
had been unable to contact Jeffrey and again there was no
counterproposal and no progress
2 The Regional Director did not set aside the Agreement insofar as it
related to the 8 (a)(3) violation, nor does the complaint allege any
violation of Section 8(a)(3)
3 There is little substantial contradiction , except as to variance in
recollection , in the testimony and credibility is not an issue in the case
4 These efforts were made by letter of November 3, letter,
November 16, letter , November 22 (unanswered ), letter November 28
(unanswered ), letter November 29 (unanswered), telegram December 1
(unanswered ), letter December 9 (unanswered) (General Counsel's
Exhibits 4-10) Clark explained this delay by stating that Jeffrey Sand,
a companion company, was also negotiating with the Union and he
thought the results of these negotiations would affect the Respondent's
negotiations
JEFFREY STONE CO.
At the February 16 meeting Clark offered a 10-cent
across-the-board increase, a 1-year contract and adoption of
the terms of the Jeffrey Sand contract This was rejected by
the Union. This was the Respondent's first counterproposal
According to Clark another meeting took place on March
24 and the position of the parties remained unchanged. On
April 5 still another meeting was held at which Clark again
offered 10 cents and the Jeffrey Sand terms. According to
Williams, Clark stated he had not been authorized to agree to
the Union's proposal
Subsequent to this meeting the Union took a strike vote
and the employees went on strike April 17. On April 21 the
Respondent advised its employees that it was putting into
effect the 10-cent per hour increase 5 The Union, on April 24
protested this increase and the Respondent's individual bar-
gaining with its employees.6
On May 11 the mediator from Federal Mediation and a
representative of the Arkansas State Department of Labor met
with Clark and were told by him, according to the testimony
of Williams, that the Respondent's position had not changed
On June 15 Williams met with Clark and told him the strike
could be settled on the basis of a 10-cent increase, one paid
holiday and reinstatement of the strikers. Clark advised the
Union that he would take this proposal back to Jeffrey No
response was received from Clark 7
On July 1, Homer Pierce, who had attended several
meetings between the parties as mediator for the Arkansas
State Labor Department, became affiliated with the Union and
acted as its representative thereafter in negotiations with
Respondent g Pierce took sections of the original proposal
submitted by the Union tentatively agreed upon and combined
them in a new proposal which was submitted to Clark on July
13. According to Pierce the proposal eliminated provisions for
dues checkoff, proposed starting rates, wage differential for
second shift employees, daily overtime, job advancement with
seniority, bidding on jobs and work being done by foremen
Pierce testified that Clark told him he would discuss it with
Jeffrey and would be in touch with Pierce during the week of
July 17 Clark's testimony is that he told Pierce that there was
no change in the Respondent's position.
Despite efforts made to get a response from Clark on July
19, July 25, 26, and August 1 no definite answer was received
from Clark On July 21 Clark told Pierce he thought the
proposal looked satisfactory On August 4 Pierce wrote Jeffrey
(General Counsel's Exhibit 17) requesting a meeting from
August 9 but received no response. On August 14 the original
charge was filed and on September 21 the General Counsel
issued complaint Through Federal Mediation another meeting
was arranged for September 26 at which Clark stated the
Respondent was willing to sign Pierce's contract.9 A meeting
was scheduled for September 29 for executing the agreement
but Clark did not appear
There was no further communication until October 31
5 General Counsel's Exhibit 13
6 General Counsel's Exhibit 14
7 Clark testified that either at this meeting or the following one the
Union first requested that Respondent pay for foul weather gear for its
employees and that this was the reason he wished to consult Jeffrey
The record is not clear as to when this issue was first raised.
g The General Counsel attempted to examine Pierce as to negotia-
tions prior to July 1 This evidence was excluded by the Trial Examiner
on the ground that it was against public policy for a former state
mediator to testify to knowledge acquired while acting in an official
capacity
13
when the parties met and agreed to continue to bargain and it
was at this time that the Settlement Agreement was signed.
C Postsettlement Negotiations
The first meeting following the Settlement Agreement was
held on November 6 At this meeting Respondent presented its
first written counterproposal (General Counsel's Exhibit 18.)
This document, in the form of a one-page letter, simply agreed
to incorporate the 10-cent wage increase already in effect in a
contract for a period not to exceed 1 year All other terms and
conditions would follow and adopt the terms of the Jeffrey
Sand contract The Union proposed that Respondent grant a
checkoff in lieu of vacations, a proposal rejected on the ground
that Respondent was not prepared to perform clerical services
for the Union. With respect to protective clothing Clark stated
he did not have authority to pass on the request whereupon
the Union asked that he have Jeffrey present at the next
meeting.' 0
Jeffrey was present at the next meeting, November 15,
when the Union presented a new proposal (General Counsel's
Exhibit 20.) It contained three proposals, a provision for a
checkoff, for foul weather gear and safety equipment (fur-
nished by Respondent) and a provision for rates of pay with
leave to the Respondent to pay above the rates set forth i 1 At
this meeting, according to Pierce, and I do not find him
contradicted, Jeffrey insisted upon the Union telling him how
he could make more money. This was apparently the sole
contribution Jeffrey made to the meeting and foreclosed
discussion of the Union's proposals. Clark stated the Respon-
dent would sign a contract for 1 year or less which provided
for no pay increases , no vacations, no holidays and no
checkoff (Respondent never agreed to any wage increase other
than the 10 cents granted unilaterally on April 21, 1967 )
Meetings were held on November 22 and 29 at which Clark
stated he would recommend a 3-year contract Jeffrey did not
attend these meetings At the meeting of November 29 the
Union submitted a new proposal which contained the pro-
posals of July 13 but which eliminated vacations , requested
foul weather gear and safety equipment at one-half cost to the
Respondent and granting Respondent the right to grant merit
increases
Meetings were held again on December 7 and 14 (this last
by telephone) and the November 29 proposals were again
discussed without reaching agreement Clark advised Pierce
that Jeffrey would not accept a 3-year contract.
On January 3, 1968, Pierce wrote Clark submitting another
proposal (General Counsel's Exhibit 22) requesting one-half
the cost of foul weather gear and safety equipment be born by
Respondent and setting forth a schedule of job classifications
and wage rates . Clark pointed out that the rates proposed were
higher than those of November 29 and said they were
unacceptable Clark again countered with a contract for the
9 Clark , in his testimony , makes no mention of this meeting and
neither does Respondent 's brief. I must accept Pierce's testimony
10 The Union had first requested protective clothing in June and
was then told Clark would have to check this with Jeffrey Apparently
no checking on this issue had ever taken place
i 1 Respondent had from almost the beginning of negotiations
insisted on the right to grant merit increases. It h6d , in fact, at one time
insisted that the only pay increases it would agree to would be merit
increases
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present rates and the Jeffrey Sand contract terms
At a meeting held on February 5 no progress was made
Two meetings scheduled for February and March 11 were
cancelled by Respondent
A meeting was fixed for March 18 at which time the parties
were to have ascertained exactly what had been agreed to at
Jeffrey Sand. Clark testified that after reviewing the Jeffrey
Sand file with his law partner, Sutton, he found that it would
be difficult to determine what agreements had been reached
Pierce, according to Clark, agreed with this conclusion and it
was decided to meet on April 8 and go over the Sand contract
together In a sense, as Respondent's brief states, the parties
would be starting from scratch On April 8, according to
Pierce, he had a telephone conversation with Clark in which
Clark stated the Respondent was withdrawing recognition
from the Union and would proceed with the hearing fixed for
April 10.
At the hearing the General Counsel moved to amend his
complaint to allege that on and after April 8 Respondent
ceased to recognize the Union Upon the assurance of counsel
for the Respondent that the Respondent was not withdrawing
recognition and would continue to recognize and bargain with
the Union the Trial Examiner denied the General Counsel's
motion to amend
During the course of the hearing W. D. Jeffrey, manager of
Jeffrey Stone, was called as a witness. Asked by the General
Counsel if he would be agreeable to Clark's signing a contract
which contained a checkoff clause, Jeffrey, after testifying
that he did not like it, said he would' 2
There matters stood at the end of the hearing.
D Conclusions
1 Bad-faith bargaining
At the time the Settlement Agreement was signed Respon-
dent still had the Union's July 13 proposals before it (There
were the proposals on which Pierce thought agreement had
been reached on September 26) Officially the Respondent's
position at the time of settlement was that it had rejected the
Union's wage demands (except for the 10-cent increase granted
unilaterally on April 24) seniority, paid holidays, grievance
procedure, checkoff, no-strike provisions and request for foul
weather gear It would agree only to a 1-year contract, with all
terms conforming to the Jeffrey Sand contract
Following the settlement Respondent offered a 10-cent
increase, by which it meant the April 24 increase, a 1-year
contract and the terms of the Jeffrey Sand contract. Since at
this time there was no final Jeffrey Sand contract this offer
appears meaningless and was no more than Respondent had
offered prior to the settlement
The last meeting between the parties prior to the hearing
was scheduled for April 8 It was canceled by Respondent
when Clark told Pierce Respondent was withdrawing recogni-
tion No concessions had been made by Respondent during the
eight postsettlement meetings held.
12 In its brief Respondent stated that , in view of this answer, it was
conceding on this issue The only meaning I get from this is that
Respondent is willing to sign a checkoff clause
13 See Local 761, international Union of Electrical, Radio and
Machine Workers, AFL-CIO v N.L R B, 366 U.S 673, where the
It would appear that Respondent evinced, during the entire
postsettlement period, a determination to reject any agreement
except on its own terms In view of the fact, however, that the
motives of a party and its good faith in bargaining negotiations
are hardly susceptible to conclusive determination Respon-
dent's presettlement conduct will, under the Hodcarriers rule,
be examined
At the first meeting between the parties on October 21
Clark asked for time to consider the Union's usual contract
No further meeting could be arranged, and then only through
appeal both to Federal Mediation and Arkansas Labor Depart-
ment, until December 20 The Union's proposal was rejected
and was continuously rejected without offer of a counteipro-
posal until February 16 when Clark offered a 10-cent increase,
a 1-year contract and the terms of the Jeffrey Sand contract
Following the strike the Union offered to settle for a
10-cent increase, one paid holiday and reinstatement of the
strikers, a proposal Clark had to take back to Jeffrey On July
13 the Union withdrew any demand for checkoff, starting
wages, wage differential, overtime, seniority, bidding on jobs
and restriction of work done by foremen Again there was a
lapse in meeting until, again through Federal Mediation and
Conciliation, a meeting was held on September 26 This was
the meeting (not testified to by Clark) at which Clark
supposedly agreed to the terms of the proposal but failed to
appear on September 29 to execute the agreement.
Summarizing, it appears that all Respondent ever offered
the Union was a 10-cent increase, a 1-year contract and the
terms on a contract with Jeffrey Sand, a contract which at the
time of the hearing had yet to be agreed upon
It is true that Section 8(d) does not require agreement to a
proposal or the making of a concession Literally read, this
would mean that an employer could make a first offer which
granted no benefits and thereafter make no concessions The
statute is not, however, to be read literally 13 Here Respon-
dent's original offer, not made until 5 months after certifica-
tion, offered only a 10-cent increase, a 1-year contract and the
terms of Jeffrey Sand It never expanded upon this offer
during the ensuing 15 months of bargaining. It was not until
the hearing that Jeffrey indicated he would accept a checkoff
and this, in view of the surprise expressed by his attorney and
negotiator, may have been a slip of tongue or mind. During the
bargaining period, at one time or another, the Union surren-
dered its claim to starting wage rates, checkoff, seniority,
bidding on jobs and work done by foremen, vacations and
holiday pay
Without resting my conclusion on the Respondent's failure
to make any concession alone, I cannot find that Respondent
met its bargaining obligation by its conduct in negotiations as
herein described Where the Respondent's original counterpro-
posal offered such scant and meagre concessions as it did here
and where, after 18 months of bargaining, it offered no more I
must find that its sole purpose was continued delay and utter
frustration of its statutory duty No case involving surface
bargaining is easy to decide but I think the facts here bring it
within the ambit of N.L.R.B. v American National Insurance
Co., 343 U.S 395, 402, where the Court stated
Court, referring to Section 8(b) (4) (A) stated, at 672
This provision could not be literally construed , otherwise it would
bar most strikes historically considered to be lawful so-called
primary activity.
JEFFREY STONE CO.
Enforcement of the obligation to bargain collectively is
crucial to the statutory scheme And, has long been
recognized, performance of the duty to bargain requires
more than a more willingness to enter upon a sterile
discussion of union-management differences.
See also Mature Transport Co. v N.L.R B, 198 F 2d 735, 739
(C A. 5), NL.R B. v Herman Sausage Co, Inc., 275 F 2d 229,
231, 232 (C A. 5),NL.R.B. v Texas Coca-Cola Bottling Co.,
365 F.2d 321 (C.A 5).
There are other factors which support this conclusion Thus
it appears that Clark, although an experienced labor attorney,
had no real authority to agree to any terms other than those
proposed by the Respondent and that he in fact was used by
Respondent as a buffer between Respondent and the Union.
At each new offer made by the Union Clark advised its
representatives that he would have to consult with Jeffrey and
when Clark made what was at least a tentative acceptance of
Pierce's July 13 proposal it never reached agreement. On
another occasion Clark said he would recommend a 3-year
contract but it was rejected by Jeffrey There is also the fact,
supporting the "buffer" theory, that despite repeated requests
by the Union Jeffrey attended only two bargaining sessions
and did not meaningfully participate in either. I find this lack
of authority on the part of Respondent's representative clear
indicia of its bad faith throughout negotiations (MF.A
Milling Co., 170 NLRB No. 111 )
If further evidence were needed there is the hiatus in
meetings between October 21 of 1966 and December 20,
1966, when repeated requests for meetings met with no
response from Respondent It is true that this period is
excluded, as to the finding of a violation, by Section 10(b) of
the Act. Reference is made here only for background purposes.
On July 13, 1967, Clark informed Pierce that his proposals of
that would be discussed with Jeffrey and that he would meet
with Pierce during the week of July 17 No meeting was held,
despite requests from the Union and no response was received
from Respondent until September 26 In each of these
instances of delay the meetings were ultimately held only after
intervention by Federal Mediation and Conciliation In addi-
tion Clark "forgot" to attend the meeting scheduled for
September 29 and Respondent cancelled meetings scheduled
for February 21 and March 3 and 11, 1968 This is not the
record of one anxious to conclude bargaining negotiations by
reaching agreement 14
By the conduct above set forth I find Respondent violated
Section 8(a)(5) and (1) of the Act
2 The unilateral wage increase of
April 21,1967
The Respondent would justify this increase of 11' vents per
hour on the ground that an impasse had been reached in
bargaining negotiations. I do not agree At this time only seven
bargaining sessions had been held It was ,iot until February 16
that the Respondent made its first offer and only one meeting
was held thereafter until the strike began on April 17 The
Union gave no indication that it was terminating negotiations
and in fact tried on May 11 to resume negotiations through the
14 It might further be noted that the Respondent did not submit a
counterproposal until February 16, almost 4 months after it had
received the Union's proposal I find this, too, indicia of bad faith. See
Insulating Fabricators, Inc, 144 NLRB 1325
15
Federal Mediation Service and the Arkansas State Department
of Labor These agencies were advised by Clark that Respon-
dent's position had not changed. A respondent may not
undertake unilateral actions before negotiations are discontin-
ued or before the existence of any possible impasse (N.L R.B.
v. Katz, 369 U.S. 736, 741, 742 ) Certainly no final impasse on
the subject of wages had been reached and the Respondent was
still obligated to bargain on this issue (Safway Steel Scaffolds
Company of Georgia, 153 NLRB 417, 422.)
I therefore find that Respondent, by its grant of a unilateral
wage increase on April 21, 1967, violated Section 8(a)(5) and
(1) of the Act
3 The failure to bargain respecting
a checkoff of dues
The complaint alleges that Respondent refused, on and
after November 6, 1967, to bargain with respect to a checkoff
of union dues While the Respondent was opposed to a
checkoff Jeffrey stated at the hearing that Respondent was
willing to sign an agreement containing such a clause. Even in
the absence of such a concession I would not find Respondent
guilty of any unfair labor practice in taking an adamant stand
on this issue Its given reason was that it was unwilling to
perform clerical services for the Union, a nondiscriminatory
r;ason.1 5 The right of an employer to take an adamant stand
on a particular issue was confirmed by the U.S Supreme Court
in American National Insurance Co. v N.L.R B., 343 U S 396,
where the Court stated, at 404
Thus it is now apparent from the statute itself that the Act
does not encourage a party to engage in fruitless marathon
discussions at the expense of frank statement and support
of its position And it is equally clear that the Board may
not, either directly or indirectly, compel concessions or
otherwise sit in judgment upon the substantive terms of
collective bargaining agreements
It shall be recommended that the complaint, insofar as it
alleges a failure to bargain on a checkoff provision, shall be
dismissed 16
IV THE REMEDY
Having found the Respondent engaged in and is engaging in
certain unfair labor practices it will be recommended that it
cease and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act
Upon the foregoing findings and conclusions and upon the
entire record in this case, I make the following
CONCLUSIONS OF LAW
I By refusing on and after February 14, 1967, to bargain in
good faith with the Union concerning wages, rates of pay, hours
and other terms and conditions of employment and by
granting a unilateral wage increase in wages to its employees on
April 21, 1967, Respondent violated Section 8(a)(5) and (1) of
the Act.
15 Cf . Roanoke Iron & Bridge Workers, Inc, 160 NLRB 949,
M.FA Milling 170 NLRB No 111
16 See also McCulloch Corporation , 132 NLRB 201
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 The unit appropriate for the purposes of collective
bargaining is.
All employees of the North Little Rock plant, including
production and maintenance employees, excluding office
clerical employees, watchmen, guards and supervisors as
defined within the meaning of the Act.
3 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
17 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words " the Recommended Order of a Trial Examiner " in the notice In
the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
18 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the Regional
Director for Region 26 , in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith "
RECOMMENDED ORDER
It is hereby recommended that Respondent Jeffrey Stone
Co , Inc , its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively and in good faith with
International Union of Operating Engineers Local 382C,
AFL-CIO, as the exclusive bargaining representative of the
employees in the unit found appropriate herein
(b) Granting unilateral wage increases during collective-
bargaining negotiations with the Union
(c) In any like or related manner interfering with, restrain-
ing or coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Upon request, bargain collectively and in good faith
with the above-named labor organization as the exclusive
bargaining representative of its employees in the unit found
appropriate herein concerning wages, rates of pay, hours and
other terms and conditions of employment, and, if agreement
is reached, embody such understanding in a written agreement.
(b) Post at its place of business at North Little Rock,
Arkansas, copies of the notice attached hereto and marked
"Appendix "i' Copies of said notice, on forms to be provided
by the Regional Director for Region 26, after being duly
signed by an authorized representative of the Respondent,
shall be posted by the Respondent immediately upon receipt
thereof, and be maintained for 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall be
taken by the Respondent to insure that such notices are not
altered, defaced, or covered by any other material
(c) Notify the Regional Director for Region 26, within 20
days from the receipt of this Decision, what steps have been
taken to comply therewith.' B
11 IS FURTHER RECOMMENDED that all allegations of the
complaint not specifically found to have been in violation of
the Act shall be dismissed -
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
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, upon request, bargain collectively and in good
faith with International Union of Operating Engineers,
Local 382C, AFL-CIO, as the bargaining representative of
our employees in the following unit with respect to wages,
rates of pay, hours and other terms and conditions of
employment and, if agreement is reached, sign a written
contract covering such agreement The employees in the
appropriate unit are
All employees of the North Little Rock plant, including
production and maintenance employees, excluding office
clerical employees, watchmen, guards and supervisors as
defined within the meaning of the Act
WE WILL NOT make any changes in wages, rates of pay,
hours or any other terms and conditions of work without
agreement with the above-named Union unless negotiations
with said Union have been broken off
JEFFREY STONE CO, INC.
(Employer)
Dated By
(Representative) (Title)
This Notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material
If employees have any question concerning this Notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, 746 Federal Office
Building, 167 North Main Street, Memphis, Tennessee 38103
(Tel No 534-3161).