Kit Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1964

150 N.L.R.B. 662 (N.L.R.B. 1964)

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located at Joliet , Illinois, excluding retired agents, managers , assistant man-
agers, cashiers, clerical employees , guards, watchmen , and supervisors as
defined in the Act.
WE WILL NOT refuse to bargain collectively as aforesaid , nor will we, in any
like or related manner, interfere with, restrain, or coerce our employees in the
exercise of the right to bargain collectively through the said Union.
METROPOLITAN LIFE INSURANCE COMPANY,
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.
Employees may communicate directly with the Board' s Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
Kit Manufacturing Company, Inc. and Sheet Metal Workers'
International Association, Local Union 213, AFL-CIO. Case
No. 19-CA-2754. December ,°L9, 196.E
DECISION AND ORDER
On July 16, 1964, Trial Examiner Irving Rogosin issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision.
Pursuant 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 McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire record in the case,
and hereby adopts I the findings, conclusions, and recommendations
of the Trial Examiner 2
1 In adopting the Trial Examiner ' s Decision , we reject Respondent ' s contention that it
may Insist upon a contractual clause granting It use of the union label, and we conclude,
in agreement with the Trial Examiner, that this demand Is not a mandatory subject of
bargaining because Its relation to wages, hours , or other terms or conditions of employ-
ment is at best remote and speculative . See Detroit Resilient Floor Decorators Local
Union No. 2265 , of the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO ( Mill Floor Covering, Inc.), 136 NLRB 769.
As Respondent has been found in violation of Section 8(a) (1), (3 ), and (5) of the
Act in other cases , we adopt the Trial Examiner 's Recommended broad 8 (a) (1) Order.
2 Member Brown concurs in the result.
150 NLRB No. 62.
KIT MANUFACTURING COMPANY, INC. 663
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, Kit
Manufacturing Company, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Rec-
ommended Order.
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
This proceeding under the National Labor Relations Act, as amended (29 U.S.C.
Sec. 151 et seq., 61 Stat . 136), herein called the Act, is based upon a complaint , issued
December 3, 1963, as amended without objection at the hearing alleging that Kit
Manufacturing Company, Inc., herein called Respondent or Company, has engaged
in unfair labor practices affecting commerce , in violation of Sections 8 (a) (1) and (5),
and 2(6) and (7) of the Act.'
Specifically, the complaint , as amended, alleges that since about October 1963
Respondent has refused to bargain collectively with Sheet Metal Workers' Interna-
tional Association , Local Union 213, AFL-CIO, herein called the Union, as exclu-
sive representative of its production and maintenance employees , by creating an
impasse in bargaining when it insisted upon the inclusion in any collective -bargaining
agreement of terms and conditions involving nonmandatory subjects of collective bar-
gaining; namely, ( 1) a provision granting Respondent the use of the union label, and
(2) a requirement that the International , with which the Union is affiliated as well
as the Union, the certified bargaining representative , execute the contract, thereby,
in effect, insisting upon a change in the duly designated representative.2
Respondent 's answer admits the jurisdictional and certain factual allegations , denies
generally the remaining allegations , including those charging a refusal to bargain,
and alleges that the Union rather than-Respondent created an impasse in bargaining
by insisting upon changes in the agreement after having previously accepted its terms,
and by interposing a new subject as a matter for collective bargaining.
Hearing was held before Trial Examiner Irving Rogosm at Boise, Idaho, on Feb-
ruary 20, 1964. General Counsel and Respondent appeared by counsel; the Union,
by a representative . All parties were afforded full opportunity to be heard, to exam-
ine and cross -examine witnesses , to present oral and documentary evidence relevant
and material to the issues, to argue orally , and file briefs . All parties waived oral
argument . Briefs filed by General Counsel and Respondent , on March 16 and 20,
1964, respectively, have been carefully considered.
Upon the entire record in the case, including my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent admits, and I find , that Respondent is a Cali-
fornia corporation , with plants in Long Beach , California , and Caldwell , Idaho,
where it is engaged in the manufacture and sale of trailers and mobile homes. The
Caldwell, Idaho, plant is the only one involved in this proceeding . During its past
fiscal year, in the course and conduct of its manufacturing and business operations
in the State of Idaho, Respondent produced for sale and delivered to customers out-
side the' State of Idaho , products valued in excess of $50 ,000. During the same
period , Respondent purchased goods and materials valued in excess of $50 ,000 from
sources outside the State for use at its plant in Idaho . Respondent concedes, and
I find that, at all times material , Respondent has been engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
1 The charge was filed on October 14 , 1963, and served on October 16, 1963. The com-
plaint was served on December 5, 1963. There is no allegation or contention that Re-
spondent engaged in any unfair labor practices within the meaning of Section 8 ( a),(1)
independently of the Section 8(a) (5) allegations . The Section 8(a) (1) allegations are
merely derivative.
2 The allegation relating to (2) was the subject of the amendment previously mentioned.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association, Local Union 213, AFL-CIO, is,
and at all times material has been, a labor organization within the meaning of Sec-
tion 2 (5). of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and representation of majority therein
The Union was certified by the Board on March 31, 1961, in Case No. 19-RC-
2719, as the exclusive representative for the purpose of collective bargaining of
Respondent's employees in the following unit:
All production and maintenance employees employed by the Employer at its Cald-
well, Idaho, plant, excluding office clerical employees, professional employees, serv-
icemen, and all supervisors as defined in the Act.
Upon the basis of the foregoing, and the admissions in Respondent's answer, I
find that the above-described unit is now, and at all times material has been, an
appropriate unit within the meaning of Section 9(b), and that the Union is now, and
at all times material has been, the duly designated exclusive bargaining representa-
tive of said employees in said,unit within the meaning of Section 9(a) of the Act.
B. Sequence of events
The alleged unfair labor practices giving rise to this proceeding, occurred against
a background of two earlier proceedings in which Respondent was found to have
violated the Act. The first case involved a refusal to bargain in violation of Section
8(a)(5) and (1) ; the second of certain acts of interference, restraint and' coercion,
discrimination in regard to the hire and tenure of employment of an unfair labor
practice striker, and refusal to bargain in good faith, in violation of Section 8(a)(1),
(3), and (5). The first case covered the period between March 31, 1961,3 the date
of the certification, and March 23, 1962; the second case, a period between April 1
and October 25, 1962, during which an unfair labor practice strike occurred.4
The first meeting between the parties, following the hearing in the second Board
matter, was held on April 3, 1963, at the office of Eli A. Weston,. Respondent's attor-
ney, in Boise, Idaho. Weston, Dewey M. Reber, production manager, and Thomas
Carter,5 represented the Company; Wesley R. Smith, International organizer, and
Carl Marcum, business representative of the Local, represented the Union. These
representatives had been the principal negotiators in the bargaining conferences
which came under scrutiny of the Board in the earlier cases. When negotiations
were resumed on April 3, the issues relating to a wage increase, overtime, union
security, no-strike no-lockout provisions, use of the union label, and duration of the
contract, were still unresolved. However, apart from the controversy over use of the
union label, the principal issue which separated the parties remained union security,
which Reber had characterized during the second unfair labor practice proceeding
as "the biggest stumbling block." During the negotiations involved in that case the
subject of union label appears to have received scant attention. It is merely men-
tioned in the Trial Examiner's Intermediate Report (Decision), attached to the
Board's decision,6 among several issues as to which the parties were unable to reach
an accord.
When negotiations were resumed in April 1963 the Company asked the Union
whether it would be willing to forgo a union-security provision. The union negoti-
ators countered with a check-off, as an alternative, coupled with a substantial wage
increase. In response to the Company's query as to what they considered a substan-
tial increase, the union negotiators mentioned 10 or 15 cents an hour.
Most of the discussion, however, centered upon union security; the union negoti-
ators stressing the need for this security and holding out the use of the union label
as an inducement to a concession by the Company on union security. In this regard,
3 This date appears in the Intermediate Report, attached to the Board's decision, 142
NLRB 957, 963, as March 13, 1961, an obvious typographical error
4 The history of negotiations during these periods is reviewed in some detail in the
Board's decisions in Kit Manufacturing Company, Inc, '138 NLRB 1290, enfd. per curtam,
319 F. 2d 857 (CA. 9), and Kit Manufacturing Company, Inc., 142 NLRB 957 (heard
on October 29 and 30, 1962, decided by the Board, June 7, 1963).'
6 Not identified in this hearing, but referred to In the previous hearing as a foreman.
8Kit Manufacturing Company, Inc, 142 NLRB 957, 969, 971. .
BIT MANUFACTURING COMPANY, INC. 665
the Union emphasized, as it did in subsequent meetings, that it would sanction the
use of the union label only if the Company conceded to the Union's demand for
some form of union security. In arguing for union security, the Union sought to
impress upon the Company the significance of the union label as a stimulus to sales,
pointing out that construction industry workers, who were highly organized, were
excellent prospects for the sale of trailers. To underscore its point, the Union cited
as a fact, according to Smith, that construction workers had refused to patronize a
certain brand of cigarettes because the manufacturer was "non-union ." In light of
subsequent developments, it would appear that the Union was perhaps more persua-
sive than it had realized. In any event, the meeting terminated with Attorney
Weston's promise that the Company would make a survey of prevailing wage rates
in the same industry in the area, and submit a wage proposal to the Union.
A meeting scheduled for April 23 was not held because the Company claimed that
it had not had time to complete its survey. On May 8 Smith phoned Weston to
request a meeting, repeating the request later that day when he encountered him at
the Labor Temple while Westoh was there on other business. Smith again encoun-
tered Weston the following day and, knowing of Weston's impending plans for a
trip to Europe, urged him to schedule an early meeting. Due to conflicting engage-
ments on both sides, a second meeting was not held until July 19, after Weston's
return.7
On that date the parties met at a hotel in Caldwell, Idaho, Weston and Reber
appearing for Respondent, Smith and Marcum, accompanied by the union negotiat-
ting committee, comprised of employees William Higley, Bradford Blair, and Robert
Nourse, for the Union. Shirley Perry, a secretary at the Labor Temple, was also
present to take minutes of the meeting, which were later transcribed and furnished
to the company negotiators . At this meeting Respondent proposed a wage increase
of 4 cents an hour across-the-board, or, as an alternative, 5 cents an hour in return
for a change in the qualifying period for eligibility under the health and welfare plan
from 30 to 90 days, Weston observing that this would not affect existing employees.
The Company also offered time and a half after 40 hours instead, as the Union had
proposed, of overtime after 8 hours, 2 weeks vacation with pay after 5 years of
service, and a contract term of 1 year. Weston declared that the Company would
not accede to any demand for union security, Reber interjecting that he regarded
such a clause as "immoral." When Weston suggested that the parties explore a pos-
sible compromise on the issue of union security, Smith reminded him that the Com-
pany had already rejected the Union's proposal for checkoff, agency shop, and main-
tenance of membership.
At this meeting, the union representatives stated that use of the union label was
tied to union security, and that unless the Company yielded on the issue of union
security, the Union would withdraw its offer on the union label. Asserting that the
label amounts to a representation that the product to which it is affixed has been
manufactured exclusively by union employees, the- Union maintained that it could
not allow an employer the use of the label in the absence of a union-security com-
mitment. Weston expressed astonishment that the Union would not wish the Com-
pany to use the union label. In view of the Company's adamant position regarding
union security, and the Union's contention that without this protection it would have
no control over nonunion employees, the Union also requested, and the Company
agreed, that the no-strike no-lockout provisions should be eliminated from the pro-
posals. The meeting concluded with the Union agreeing to submit the Company's
proposals to the employees, and to report their decision to the Company.
The parties next met on the evening of July 25, again, in Caldwell. International
Organizer John Lubitech, substituting for Smith, who was away on other business,
Business Agent Marcum, and Higley and Blair, of the negotiating committee, repre-
sented the Union; Attorney Weston, accompanied by his son, Southworth, and Doran
Bevel, company officials, and Reber, were present on behalf of the Company; Perry,
the Labor Temple secretary, also attended this conference. Marcum reported that
the employees had rejected the Company's proposals of the previous meeting. Weston
7-The General Counsel argues in his brief that Respondent bargained in bad faith by
engaging in dilatory tactics in scheduling meetings with the Union, and by adopting a
rigid position in negotiations despite the fact that the Unon had made concessions in an
effort to reach agreement . This ground of refusal to bargain was neither alleged in
the complaint nor litigated at the hearing The sole basis for the charge of refusal to
bargain , alleged in the complaint , is Respondent ' s insistence to the point of impasse upon
inclusion of nonmandatory subjects of collective bargaining in any agreement reached
between the parties. No finding of refusal to bargain is therefore based on the belated
ground urged by the General Counsel.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquired whether the employees had voted on the proposal "as a package" or on each
of the items separately . Marcum told him that the latter was the case . Weston then
asked whether the employees had voted to reject any proposal which did not include
a union-security provision . Marcum reminded Weston that the Union had sub-
mitted various types of union security to the Company but that these had all been
refused . In the discussion which ensued , Weston reiterated the Company 's decision
against union security in any form.
Marcum further reported that , although the employees had rejected the Company's
offer of a 2-week vacation after 5 years, they would accept such a vacation after 4
years of service , and asked Weston whether the Company would be willing to increase
its wage offer if the employees accepted the Company 's vacation proposal. Weston
replied in the negative , adding that the Company was adhering to its last proposal.
The remainder of the meeting was devoted to discussion of the union -security issue.
Due to previous commitments on both sides, no further meeting took place until
August 12 , when the parties convened at the instance of the Federal Mediation and
Conciliation Service. Weston and Reber , attended by a secretary , appeared at this
meeting on behalf of the Company ; Smith , Marcum , and the negotiating committee,
on behalf of the Union . At this meeting , the Union announced that it was withdraw-
ing its demand for union security , together with its offer of use of the union label.
The Union proposed a 10-cent -an-hour wage increase , effective immediately, and
an additional 5-cent-an-hour, effective September 1, 1964 , and a contract expiration
date of March 1 , 1965. The Union further proposed establishment of a joint labor-
management committee which would function at the plant. The Union also
requested that the Company agree to mail a letter to all employees assuring them
that it would not discriminate against them because of union membership. The
company representatives stated that in view of these developments , they would be
obliged to call the Long Beach office , and requested a caucus for this purpose.
Returning to the meeting , they announced that there would be no change in the
wage proposal of a choice of 4 or 5 cents an hour (depending on the Union's position
on the change in eligibility requirements under the health and welfare plan); that
the no-strike no-lockout provisions would have to be reinstated ; and that the term of
the contract would be for 1 year. Discussion turned to the grievance and arbitration
provisions , and establishment of the joint labor-management committee , in which the
conciliator participated . The Union agreed to submit these issues to the employees.
On August 16, the Union notified Weston by phone that the employees had acceded
to the substantive provisions of the Company's proposal , and requested a meeting
to consider changes in the grievance and arbitration provisions, and to discuss the
joint committee proposal , as well as other minor items. A meeting was arranged for
August 22. However , the meeting was not held on that date due to the absence of
Production Manager Reber. International Organizer Smith, who resided in Salt
Lake City, and was not notified in time that Reber would be unavailable , arrived in
Boise to discover that the meeting would not take place . He therefore asked to
meet with Attorney Weston and, accompanied by Marcum , went to Weston's office.
There, Weston told the men that he believed the parties were "getting ' close to an
agreement ," and observed that, although he had had misgivings initially as to the
prospect of reaching an agreement , he now regarded agreement likely, and said he
would arrange a meeting upon Reber 's return.
On August 28, the parties again met at Caldwell ; Weston, Reber, and Southworth;
attending for the Company; Smith , Marcum , and the negotiating committee for the
Union. They were joined shortly afterward by the conciliator . Weston asked that
the Union recapitulate its position as to which of the Company 's proposals it had
accepted. He was told that the Union had accepted the 5 -cent-an-hour increase,
time and a half for overtime , and 2 weeks' vacation with pay after 5 years of service.
Smith had prepared an agenda of matters which, according to him, the parties had
tentatively agreed to discuss at this meeting . He opened discussion on these items
which included changes in the grievance and arbitration procedure , establishment of
the joint labor-management committee , elimination of the no-strike no -lockout provi-
sion , withdrawal of the union label, and circulation by the Company to the employees
of a letter assuring them that there would be no discrimination because of union
affiliation . The Company declared that there would be no change in the grievance
and arbitration provisions , and rejected the other demands. Instead , it insisted on
reinstatement of the no-strike clause, and the union label provision.
On the crucial issue of the union label , Weston asserted that if the Company signed
the contract without the union label provision , it would , nevertheless, insist upon
attaching a label to its trailers indicating that they had been manufactured under
union contract . With regard to this remark , Smith quoted Weston as saying that the
BIT MANUFACTURING COMPANY, INC. 667
Company would use the label even if it "had to make a facsimile or a counterfeit"
of the union label. According to Smith, the company negotiators questioned him
as to the appearance of the union label, as to size, color, and wording of the label.
Smith testified that he sternly warned of the serious consequences of'duplicating the
label, stating that the union label was copyrighted, and that if the Company carried
out its determination, it would be "asking for trouble."
On cross-examination, however, Smith conceded that Weston had stated that in his
opinion, irrespective of whether the Company used "the exact union label or not," it
had a legal right to use a label on its product which set forth, in effect, that the prod-
uct had been manufactured under union contract. Smith further admitted that
Weston's statement was made in the context of the Company's request that the Union
notify all its locals, as well as distributors and customers with whom the Company
was doing business, that the Company's trailers were being manufactured under
union conditions. This, Smith acknowledged, had been prompted by the fact that
the Union had circularized the Company's distributors and customers with a notice
that the Company was on an unfair list, and requesting them not to patronize. Smith
testified that the Union refused to issue a letter to distributors and customers to the
effect that the Company 's trailers were "a hundred per cent union-built," but offered
to inform them that the Company was under contract with the Local when that
eventuality occurred.8
At this meeting, the Union accepted the Company's wage, overtime and vacation
proposals , agreed to restore the no-strike no-lockout provision , and to waive union
security. In short, the Union agreed to all the Company's proposals up to that time,
save for the union label provision.
Following the meeting of August 28, Business Representative Marcum drafted a
contract purportedly embodying the terms and conditions upon which the parties
had agreed as of that date, omitting the union label provision. Marcum signed the
draft, inserting the date August 28, 1963, and under date of September 11, mailed
it to Weston with a covering letter, signed by Marcum as secretary-treasurer of the
Local. Expressing belief that the contract correctly reflected the agreement reached
on August 28, including minor changes upon which agreement had been reached
earlier, the letter pointed out that the union label provisions had been deleted in
accordance with the Company's "offer of August 22," and stated that the Union
would accede to the Company's request for the no-strike no-lockout provision if the
Company agreed to sign the contract without delay. The letter closed with a request
that Weston notify the Union of the time and place for the execution of the contract.9
In his reply, dated September 17, Weston stated that he had "examined the contract
hurriedly," and that except for a minor typographical error, the contract appeared
to be "in order." Weston called attention , however, to the omission of the union
label provision and, referring to an earlier letter of August 26 setting forth the Com-
pany's proposal, asserted that, although the parties had engaged in discussions fol-
lowing that proposal, "nothing was agreed upon." Weston also observed that the
contract, which he referred to as the "proposal," had been signed only by Marcum
as representative of the Union, and requested that the International sign the contract
as well, since Smith had conducted the negotiations on behalf of the Union for the
past year. Weston added that he "in, turn," [would] have the Company sign instead
of signing [himself]." The letter concluded that if Marcum would "correct the con-
tract accordingly," and return it with "the proper signatures," he would be "more than
pleased to have it signed forthwith and bring an end to a long and difficult period
of negotiations."
On September 23, 1963, Weston wrote the compliance officer of the Regional Office
of the Board, with copies to Production Manager Reber, and Union Representatives
Smith and Marcum, advising that the Company intended to comply with the Board's
Order in Case No. 19-CA-2488-2-3, and adding that the Company had reached
8 Although Weston did not testify , and the remarks ascribed to him stand undisputed,
it seems highly improbable that an attorney of Weston's undoubted experience would
seriously threaten to counterfeit or duplicate the union label. It is, however, not un-
likely, as evinced by Smith's answers to Weston on cross-examination, that during the
conference under discussion, Weston was endeavoring to explore the possibility of attaching
a label to the trailers stating that they , were being manufactured under union conditions.
In any event, the Company apparently did not pursue the matter. The episode is
significant only to indicate the importance the Company attached to the union label at
that time.
9 The copy of this letter received in evidence indicates that the original had been mailed
by certified mail, with copies to Reber , Smith, and the conciliator.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement with the Union on all points excepting use of the union label, the retro-
active date of the wage increase, and signing of the contract by the International
Union. Weston's letter concluded with the statement that the Company had sub-
mitted written proposals to the Union, and that he was certain that the contract would
be signed within a few days.io
On October 9, Weston notified Smith by phone that Reber was still insisting on the
use of the union label, and that unless the Union was prepared to yield on this issue,
there would be no point in meeting. Nevertheless, the parties met in Weston's office
on October 18, Weston and Weber attending on behalf of the Company; Smith, Mar-
cum, and the negotiating committee on behalf of the Union. The union label con-
tinued to be the contioversial issue. ' Reber asked Higley, of the negotiating com-
mittee, if he would accept a contract providing for a 5-cent-an-hour raise, eliminating
the use of the union label, and suggested that that issue be submitted to the employees.
Reber also proposed that the Union grant the Company permission to use the label
on trailers shipped to Montana.il As an alternative, Reber proposed that the Union
allow the Company to use the union label on 15 percent of its production. Both
proposals were rejected, the Union declining to submit the issue to the employees,
explaining that since the label was its private property, it could exercise its preroga-
tive in permitting use of the label on the Union's own terms as, for example, in return
for a union-security clause. Moreover, the Union maintained, use of the union label
was not a mandatory subject for collective bargaining.
The company representatives asked for a caucus and withdrew temporarily from
the meeting. When they returned, they submitted to the Union a draft of a com-
plete contract already signed by Reber and Weston, on behalf of the Company, and
requested Marcum to sign it. Marcum said that he could not do so without first
reading it. He was told that the contract as submitted was what 'the Company was
willing to sign, and again urged Marcum to sign it. Marcum asked whether the con-
tract reflected the agreement previously reached without any changes or omissions.
He was assured that it did, except for the inclusion of the union label provision.
Reber then, in Smith's parlance, "challenged" him to sign the contract. Smith replied
that he did not sign the union contracts-that since Local 213 was the bargaining
representative of the employees, the contract would be signed, if_ and when it were
signed, by the Local. The company representatives then countered that if Smith
would sign the contract, the Company would accept it "without the union label:"
When Smith persisted in his refusal to sign, Reber commented, "What's the matter?
Aren't you proud of this contract? You negotiated it," and again challenged Smith
to sign the contract. The meeting concluded on that note.
As they were leaving the building, Weston and Smith lagged behind the others.
Smith expressed the opinion that the Company was "on weak ground [in] insisting
upon the use of the union label," that the Union could establish that this issue was
not a mandatory subject of collective bargaining, and that the Company was in "an
untenable position" as to that issue. Weston demurred, remarking that he had not
realized•the importance of the label to the Union until the meeting in July, when the
Company first insisted upon the use of the label and the Union became "indignant"
that the Company would insist upon the use of the label, while rejecting the Union's
demand for union security.
Although Smith testified that the Company had at no time prior to October 18
indicated that it expected Smith, or an officer of the International to sign the contract,
and that it "came as a surprise" to him, it is evident that Smith could not have been
completely unaware of the Company's position on this issue before that date. It
will be recalled that Weston had mentioned this as one of the unresolved issues in
his letter to the compliance officer, dated September 23, a copy of which presump-
tively went to Smith.
Later, Marcum examined the proposed contract, dated October 18, which the
Company had submitted at the meeting of the same date, and discovered that, except
for a few minor errors, and the inclusion of a • union label provision , which, inci-
10 It is not altogether clear at what point in the negotiations the Company first posed
the issue of the signing by the International of any contract arrived at between the parties.
The Company 's position appears to be that it , in effect , took it for granted that the
International would do so in view of the extent of participation by International Organizer
Smith in the negotiations . -Whatever its assumption may have been , it is quite evident
that this issue was not actually raised until the latter abortive stages of the negotiations.
11 As a "highly unionized state," with considerable construction , it was believed that
Montana provided a good market among construction workers for the sale of trailers.
KIT MANUFACTURING COMPANY, INC. 669
dentally, was a "garbled" version of the Union's original provision,12 the contract
was nearly identical with the draft which he had mailed to Weston on September 11.
He corrected the minor inaccuracies, deleted in its entirety the union label provision,
and then signed and mailed the contract to Weston on October 24, with a covering
letter calling attention to the corrections and the deletion.
The Union now assumed that an agreement had finally been consummated. On
December 2 Weston wrote Marcum, referring to his letter to Reber, dated Novem-
ber 27 (not in evidence), and expressing surprise at Marcum's "assumption that,a
contract has been consummated" in view of the disagreement over use of the union
label.
On December 12 Smith and Marcum met with Weston at the latter's office. In
an effort to overcome any further obstacle to agreement, the union representatives
submitted a new draft of a proposed union label provision.13
Weston pointed out that the draft differed from the language originally offered by
the Union, expressing doubt that it would satisfy Reber, and asked Smith why the
Union could not give the Company the "standard union label clause." Smith told
him that there was no such clause, but that the one the Union was now offering was
essentially the same as that which had been acceptable to the Company.14 Smith
maintained that the proposed language merely gave the Union the right to withdraw
permission for use of the label in the event the Company violated the agreement, and
contended that the Union had the same right under the former provision. When
Weston protested that the language under the proposed draft permitted the Union
to revoke permission arbitrarily, Smith 'countered that any dispute under this provi-
sion could be made the subject of the grievance and arbitration procedure.
According to Smith, Weston thereupon indicated that in view of the newly proposed
union label provision , he could see no reason for the Company not to sign the agree-
ment, but said he would take the matter up with Reber. Although, as has already
been stated Weston did not testify, and Smith's testimony in this respect stands uncon-
tradicted, it seems improbable that Weston would have intimated to Smith that the
proposal on the union label was acceptable, and that the last obstacle to signing of
an agreement had been removed. It is more reasonable to assume that Weston
merely stated that he would take the matter up with Reber, and that the rest of the
statement may be discounted as a case of "the wish being mother to the thought."
In any event, under the circumstances, I do not regard that Smith's credibility has
in any respect been affected by his testimony concerning the additional remark attrib-
uted to Weston, especially as there is no serious conflict with regard to the crucial
issues. -
On January 14, 1964, Marcum wrote Weston claiming that the Union had made
every effort to reach agreement, had made many concessions, including its most
recent one regarding the union label, thereby removing "the paramount obstacle to
12The provision contained in the Union's proposal read as follows:
SECTION XVII-USE OF UNION LABEL
It is hereby understood and agreed by both parties that the Union Label herein
mentioned and referred to is, and shall remain the property of the Sheet Metal Work-
ers International Association and shall be at all times in the possession of a member
of said Association, and that said Label shall at no time be used in any manner that
will be detrimental to the interest and welfare of the members of said Association,
and upon evidence that said Label is being used in a manner detrimental and harmful
to the members of said Association, then the use of said Label shall be withdrawn
from use from the Employer.
The Company 's version inadvertently omitted the words, "and that said Label shall
at no time be used In a manner that will be," commencing in the fifth line and ending on
the sixth line of the section, as quoted above. It is not suggested that the Union
objected to the provision because of the omitted phrase. The Union's objection was
much more fundamental than that.
u The draft in its entirety read as follows:
Union Label '
During compliance with all of the provisions of this agreement, the Company shall
display the appropriate union label of the Sheet Metal Workers' international [sic]
Association Local 213 on all items produced exclusively under the terms of this
agreement . The Company agrees that all union labels shall be the property of the
Union and said permission to display the union label, may be revoked by the Union
- for causes the Union deems adequate. [Emphasis supplied.]
As will presently appear , the Company objected to the italicized portion of this paragraph.
26 This, of course, was not strictly speaking true.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an agreement." He charged that since the Company had not accepted the modified
union label provision or furnished any explanation as to why it was unacceptable,
the Union could only conclude that the Company did not intend to comply with the
order of the court of appeals requiring the Company to bargain ,15 but was attempt-
ing to forestall agreement.
Replying the following day, Weston took issue with the Union's position, and
criticized the union label provision as unsatisfactory . He pointed out that the Union
could cancel permission "arbitrarily" and "without recourse" on the part of the
Company. Referring again to the Union 's original union label provision , the letter
asked why the Union was "attaching these serious restrictions to the use of the union
label," in view of the fact that it had agreed upon "the other conditions" in the con-
tract. Again, reverting to the issue of the International as a signatory, and repeating
that the International, through Smith, had conducted all the negotiations since 1962;
the letter purportedly quoted from the International's constitution and ritual to sup-
port its position, and demanded to know why the International was refusing to sign
the contract.16 The letter continued that since, under the quoted excerpt, the Inter-
national had the "sole authority to sign contracts," the Company's request that the
International sign the contract was, not unreasonable. Finally, Weston stated that
he was unable to understand the Union's charge of lack of good faith in view of the
fact that the Union had accepted the Company 's offer of 5 cents an hour , as well
as "all the terms of the contract which [the Company] had proposed ... in [its]
counter-proposal and [had] agreed to eliminate only the union security provision."
The letter concluded that any further delay in settling the controversy would-be the
responsibility of the Union.
In his reply of February 5, 1964, Marcum pointed out that the purported quota-
tion from the International's constitution was completely erroneous, and the designa-
tion of the International as "The Sheet Metal Workers of America," a misnomer.
Reiterating that the Union had acceded to all the Company's requests, including use
of the union label, and Smith's signature to the contract, Marcum stated that he felt
the Union was entitled to a "signed agreement," and concluded by stating that the
Union was prepared to request the Board to petition the district court for a 10(j)
injunction.
The following day, Weston replied, advising that he would be out of town for a
few days, but would communicate with Marcum on his return "if we have anything
further to suggest," and recommended that the Union "give serious consideration to
our latest proposal." Enclosed with the letter was a copy of a letter to Reber, trans-
mitting a copy of Marcum's letter with the comment, "The enclosed letter seems
quite plain. Apparently Carl [Marcum]-is insisting that we sign the contract as pre-
sented without giving us the unlimited use of the union label and without having the
15 This was an obvious reference to the per curiam decision of the court , cited in
footnote 4.
18 The language quoted in the letter purported to be an excerpt from article II, section 6,
of the 1946 edition of the constitution and ritual, which was revised and amended at the
International convention October 15 to 19, 1962, and read : "The Sheet Metal Workers of
America shall have full authority to represent all its members in all matters pertaining
to or involving wages , hours, working conditions and trade jurisdiction and shall be
recognized as the exclusive and sole agent of all its members in the negotiation and
execution of contracts . . . Apart from the fact that the name of the International
as quoted in the letter was a misnomer , it is evident that the constitution upon which
Respondent was relying was not in force during the times material to the issues in this
proceeding Moreover , according to Smith's uncontradicted testimony , and the current
copy of the constitution introduced in evidence , there is no provision which corresponds
to the purported quotation from the 1946 edition of that document Smith also testified,
without contradiction , that International officers do not sign contracts between its locals,
representing employees performing production work, and employers , although the Inter-
national has been known to sign national contracts with employers in the building and
construction industries . Nevertheless , Smith admitted as evidenced. by Marcum's letter
to Weston , on February 5, 1964, presently mentioned , that he had agreed to sign the
contract . In consenting to this request , however , Smith, who was not an International
or local union officer, but only an International organizer, agreed to sign merely as an
individual , since he had no authority to sign the contract in any official capacity Asked
why, then, he had agreed to sign the contract , Smith explained that since the Company
had "challenged" him to sign the contract on the basis of his extensive participation
in the negotiations , and had played on his pride in negotiating the contract, he concluded
that "If [the Company ] wished to accept [his ] signature on this basis to identify
[himself] with the contract [ he] was willing to sign." '
KIT MANUFACTURING COMPANY, INC. 671'
International sign." Weston informed Reber of his expected absence from the city,
and stated that if Reber would advise him of his decision he would convey it to
Marcum upon his return. -
Apparently there was no further communication between the parties, and on, Feb-
ruary 20, 1964, the hearing in this matter was convened.
Concluding findings
The facts relating to the crucial issues in this case are essentially uncontroverted.17
These facts establish that, at least as early as August 28, 1963, the parties had reached
an agreement on all issues, except use of the union label, and possibly, the,signing
of the contract by the International. As to the latter issue, it is not altogether, clear
when the Company first raised the issue or engaged in serious discussion regarding it.
It is evident from Weston's letter to Marcum, dated September 17, 1963, -that the
Company was requesting that the International also sign the contract. The matter
is also stated to be one of the unresolved issues in-Weston's letter to the Regional
Office several days later, on September 23, in which Weston advised the compliance
officer that the only other items outstanding were use of the union label, and retro-
activity date of the wage increase. • -
It is, therefore, clearly evident, as Weston again acknowledged in his letter to
Marcum of January 15, 1964, that the parties had reached agreement on all manda-
tory subjects of collective bargaining, and that only the, Company's insistence-upon
permission to use the union label, and upon the signing of the contract by the Inter-
national, remained as obstacles to the execution of an agreement.
It is well settled that the duty to bargain imposed by the Act extends only to matters
pertaining to "rates of pay, hours of employment, or other conditions of employment."
As to such matters, the Act requires both parties to bargain in good faith, although it
does not require "either party to agree to a proposal or require the making of a con-
cession." As to nonmandatory matters, which the parties may regard as proper
subjects for collective bargaining, but which are unrelated to "wages, hours, and-other
conditions of employment," the parties are at liberty to bargain or not, to reach agree-
ment or decline to do so, without violating the statutory obligation. A party may
not, however, insist to the point of impasse that the other accede to a proposal involv-
ing a nonmandatory subject as a condition of bargaining on mandatory subjects. By
so doing, such party violates the statutory obligation to bargain.18
By definition it is difficult to justify a contention that use of the union label con-
stitutes a mandatory subject of collective bargaining. Whatever economic advantage
the use of the union label may afford an employer, and whatever it may have upon
the salability of its product, the subject can scarcely be regarded as pertaining- to
"rates of pay, hours of employment, or other conditions of employment." It might be
argued that to the extent that the volume of the Company's sales, and the profits
derived therefrom, may in some measure be attributable to use of the label, it has a
possible effect on the wages and other benefits which might be paid to employees.
Although Respondent has not urged such a proposition, it has been considered and;
upon analysis, rejected. Even if the subject matter of use of the union label should
by some attenuated reasoning be held to fall within the ambit of matters pertaining
to "rates of pay, hours of employment, or other conditions of employment," the rela-
tionship between use of the union label and the economics of employees' wages, is
too remote and speculative to hold the union label to be a mandatory subject for
collective bargaining. - -
Respondent contends in its brief that even if, under the rule enunciated in the
Borg-Warner case, the parties need not have bargained on the issue of the union label,
the Union having in fact done so, may not now be heard to complain that Respondent
has imposed as a condition to any agreement inclusion of a provision granting it the
right to the use of the union label. A mere superficial examination of this argument
stamps it as specious. Carried to its ultimate -conclusion, such a holding would
penalize a party to negotiations for endeavoring to reach agreement by consenting to
bargaining upon issues as to which the Act does not require him to bargain. Here,
the Union offered to grant the Company permission to use the union label, as a quid
pro quo for union security, a subject which, with certain exceptions not involved here,
17 Production Manager Reber was the only witness testifying on behalf of Respondent,
and his testimony did not differ materially, from that of witnesses for the General Counsel,
except in the matter of emphasis, and possible disagreement or uncertainty as to the dates
on which particular matters were discussed
Is N L R.B. v Wooster Dwss,on of Borg-Warner Corporation, 356 U.S. 342; N L.R.B.
v. Davison, 318 F. 2d 550 (C.A. 4).
775-692-65-vol. 150--44
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is a mandatory subject of collective bargaining. Although the issue of union security
was manifestly discussed, it is by no means clear that Respondent had bargained in
entire good faith as to this issue , particularly in view of the various alternatives the
Union proposed, such as maintenance of membership, checkoff, and agency shop, all
of which Respondent rejected out of hand. The Union, on the other hand, in'a
genuine effort to reach agreement, completely withdrew its demand for union security
in any form, at the same time withdrawing its offer of use of the union label, which
it had consistently conditioned upon the Company's acceptance of some form of union
security. Thus, while maintaining the facade of good-faith bargaining, except for the
economic issues, as to which the Union had for the most part capitulated to the
Company's proposals, the Company remained unrelenting. Admittedly, the Com-
pany was entitled to bargain to an impasse on the issue of union security. However,
when it complains that the Union, by denying it the use of the union label over
the Company's insistence, while the Company remained unyielding on the issue of
union security, caused the impasse, Respondent's conduct becomes faintly reminiscent
of the culprit who, having slain his parents, pleads with the court for leniency on the
ground that he is an orphan!
With regard to Respondent's insistence that the International become a signatory
to the contract, it is well settled that such insistence, as a condition to entering into
an agreement , where the Local Union has been certified as exclusive bargaining repre-
sentative of the employees, constitutes a refusal to bargain within'the meaning of
Section 8(a)(5) of the Act.19 Again, the mere fact that in an effort to mollify the
Company, and consummate an agreement, Smith offered to sign the agreement in
his individual capacity, did not justify Respondent's insistence that the International
sign the contract.
What has been said as to the Union's attitude during negotiations concerning the
union label issue applies equally to its position in regard to Smith's offer to sign the
contract. The Union ought not to be penalized for its determination to reach agree-
ment even at the cost of yielding on issues regarding which it is under no statutory
duty to bargain. Moreover, since Smith made it abundantly clear that' his willing-
ness to sign the contract was based on the understanding that he would be signing in
his personal capacity, the Company's conduct in taunting him to sign the contract,
knowing that he was not an officer of the International, and not otherwise authorized
to sign on behalf of that organization, casts serious doubt upon the Company's bona
fides in insisting that the International become a signatory to the contract. Nor, is
Respondent aided in its contention that the International's constitution authorized the
International , if it did not require it, to execute contracts arrived at between its locals
and employers. Apart from the fact that the edition of the constitution upon which
Respondent relied was outdated there is nothing in-the revised constitution, which was
in effect at the time in question, to support Respondent's position.
Finally, Respondent's contention that the reference in the preamble of the various
drafts of the contracts to the Union as "Sheet Metal Workers International Association,
Local No. 213, AFL-CIO," evinces an understanding or assumption that the Inter-
national would become a signatory to the contract, borders on sheer sophistry. This
designation is manifestly for the purpose of indicating the name of the parent orga-
nization with which the Local Union is affiliated. The labor organizations are not
referred to conjunctively, and the designation follows that appearing in the Board's
certification. Moreover, even if, arguendo, the International's constitution did, in
fact, provide that the International shall be the sole bargaining representative of its
members, it is patent that such constitutional provision could scarcely take prece-
dence over the Board's certification in determining whether the Local Union or the
International is the certified representative of the employees.
Since , as has already been pointed out, the Company could not lawfully insist to
the point of impasse upon the signature of the International, as a condition to entering
into an agreement , it follows that by such insistence, Respondent has refused to
bargain with the Union; i.e., Local 213, in violation of Section 8(a)(5) of the
Act.20
19 See N.L.R.B. v. Taormina Company, 207 F. 2d 251, enfg. 94 NLRB 884 (C.A. 5) ; see
also , Standard Generator Service Co. of Mo., 90 NLRB 790, enfd. 186 F. 2d 606 (C.A. 8).
10 Cf. N.L.R.B. v. Wooster Division of Borg-Warner, 356 U.S. 342, where the employer's
insistence upon a "recognition" clause which excluded, as a party to the contract, the
International union which had been certified by the Board, and substituted in its place
the uncertified local affiliated with the International, was held a refusal to bargain. The
situation was almost the reverse of the case here.
r
KIT MANUFACTURING COMPANY, INC. 673
It is unnecessary to a determination of the issue to consider whether,, as argued by
the General Counsel in his brief , "there was a complete meeting of the minds, as
early as the conclusion of the August 28 meeting , except that Respondent was insisting
upon a union-label clause," and whether, even though no contract may have resulted
from the conduct of the parties under conventional principles of contract law, a quasi-
contract had been created . The issue is whether Respondent 's conduct constituted a
refusal to bargain , and this issue has been decided in the affirmative.
The General Counsel further argues in his brief that "the document that Weston
and Reber signed on October 18 should be found to be a valid contract , without the
union label clause. If it is found that a union-label clause was part of the agreement,
then the union 's clause submitted on December 12 should be used . . . ," or that
"[A]s a last alternative , a contract should be found to exist since October 18, with
the Union being given a choice either to include its union-label clause or for Smith
to sign the document for Local 213 , in addition to Marcum 's existing signature."
[Emphasis in original .] It would be manifestly improper to make any of these alter-
native findings , for to do so would be tantamount to making the contract for the
parties, something which neither the Trial Examiner nor the Board is empowered to
do under the Act.
. Upon the basis of the foregoing , and upon the entire record , I conclude and find
that, by insisting to the point of impasse that : ( 1) the Union grant Respondent per-
mission to use the union label and, (2 ) the International become a signatory to any
contract arrived at between the parties , as a condition to the entering into and execu-
tion of a contract , Respondent has, from and after August 28 , 1963 , refused to bargain
collectively with the Union , in violation of Section 8(a) (5), and has interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 , thereby violating Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III, above , occurring in connection
with its operations , described in section I, above, have a close , intimate, and substan-
tial relation to trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices within the
meaning of Section 8 (a) (5) and ( 1) of the Act, by the conduct described above, it
will be recommended that Respondent be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act. -
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Respondent , Kit Manufacturing Company, Inc., is, and at all times mentioned
herein has been , engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Sheet Metal Workers ' International Association , Local 213 , AFL-CIO, is, and
at all times mentioned herein has been , a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees employed by the Employer at its
Caldwell , Idaho , plant , excluding office clerical employees , professional employees,
servicemen , and all supervisors as defined in the Act, constitute an appropriate unit
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times mentioned herein , the Union has been , and now is, the exclusive,
bargaining representative of all employees in the aforesaid appropriate unit for pur-
poses of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing , on and after August 28 , 1963, to bargain collectively with the Union
as the exclusive representative of the employees in the appropriate unit , Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (5), and has interfered with, restrained , and coerced its employees in the,exer-
cise of the rights guaranteed in Section 7, thereby violating Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and upon the
entire record of the case, I recommend that Respondent, Kit Manufacturing Company,
Inc.,. Caldwell, Idaho, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing or failing to bargain collectively concerning rates of pay, wages,
hours of employment, and other conditions of employment with Sheet Metal Workers'
International Association, Local Union 213, AFL-CIO, as the exclusive representative
of all its employees in the aforesaid unit described above.
(b) Insisting in any collective-bargaining negotiations with the Union upon a
provision granting Respondent permission to use the union label ; insisting that the
International Union become a signatory to any contract with the Local Union; or
insisting upon any other proposals not involving rates of pay, hours of employment,
or other conditions of employment, as a condition precedent to executing a collective-
bargaining agreement with said Local Union.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3) of the
Act, as amended.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) -Upon request, bargain collectively with Sheet Metal Workers' International
Association, Local Union 213, AFL-CIO, as the exclusive representative of all employ-
ees in the above-described unit and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its Caldwell, Idaho, plant, copies of the attached notice marked
"Appendix." 21 Copies of said notice, to be furnished by the Regional Director for
Region 19, shall, after being signed by a duly authorized representative of Respondent,
be posted 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 its employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 19, in writing, within 20 days from
the date of the receipt of this Decision and Recommended Order, what steps Respond-
ent has taken to comply herewith.22
21 In the event this Recommended Order be 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 be 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."1
12 In the event that this Recommended Order be adopted by the Board this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Decision, what steps the Respondent has taken to comply herewith."
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 Rela-
tions Act, as -amended, we hereby notify our employees that:
WE WILL NOT fail or refuse to bargain collectively with Sheet Metal Workers'
International Association, Local Union 213, AFL-CIO, as the exclusive collective-
bargaining representative of all employees in the appropriate unit set forth below.
WE WILL NOT insist in any collective-bargaining negotiations with the Union
upon a provision granting us permission to. use the union label; or that the
International Union become a signatory to any contract with the Local Union;
or upon any other proposal not involving rates of pay, hours of employment, or
other conditions of employment, as a condition precedent to executing a collec-
tive-bargaining agreement with said Local Union; and WE WILL NOT in any
other manner refuse to bargain with said Union , as required in Section 8(d) of
the Act.
SEHON STEVENSON & CO., INC. 675
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self -organization , to join or assist said Union
or any other labor organization , to bargain collectively through representatives
of their own choosing , and to engage in any other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities , except to the extent that such right may be
an agreement in conformity with Section 8(a)(3) of the National Labor Rela-
tions Act, as amended.
WE WILL, upon request , bargain collectively with said Union as the exclusive
collective -bargaining representative of all the employees in said appropriate unit
and, if an understanding is reached , embody such understanding in a signed
agreement.
The appropriate unit is:
All production and maintenance employees employed by the Employer
at its Caldwell, Idaho, plant , excluding office clerical employees , professional
employees , servicemen , and all supervisors as defined in the Act.
KIT MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of posting , and must not
be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office , 327 Logan
Building, 500 Union Street , Seattle, Washington, Telephone No. MUtual 2-3300,
Extension 553, if they have any question concerning this notice or compliance with
its provisions.
Sehon Stevenson & Co., Inc. and Food Store Employees Union,
Local #347, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO. Case No. 9-CA-308. De-
cember 29, 1964
DECISION AND ORDER
On October 23, 1964, Trial Examiner Ramey Donovan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the Act, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Decision. He also found that the Respondent had
not engaged in other unfair labor practices alleged in the complaint.
Thereafter, the Respondent filed exceptions.
Pursuant 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 McCulloch and Mem-
bers Fanning and Brown].
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 the entire record in this
150 NLRB No. 64.