Lebanon Oak Flooring Co.

National Labor Relations Board - Board Decisions

Oct 13, 1967

167 N.L.R.B. 753 (N.L.R.B. 1967)

LEBANON OAK FLOORING CO. 753
Joseph L. Goodin , Charles R. Goodin , Robert L.
Goodin and Mrs. Alma A . Goodin : d/b/a Lebanon
Oak Flooring Company and International Wood-
workers of America , AFL-CIO. Case 9-CA-4186
October 13, 1967
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On June 8, 1967, Trial Examiner Maurice S.
Bush issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent
filed exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby af-
firmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer.
the exclusive representative of Respondent's employees
in the involved unit, and, if so, (2) whether Respondent is
in violation of the "good-faith" bargaining requirements
of Section 8(a)(5) of the National Labor Relations Act by
its refusal from and after January 10 and 25, 1967, to
meet and bargain collectively with the Union, except on
the condition that the Union give advance assurance in
writing that the requested meeting would not be futile.
The case was submitted on a record consisting of exhi-
bits' and oral stipulations of fact. No witnesses were
called. A brief has been filed in behalf of Respondent
which has been carefully reviewed and considered.
Upon the entire record, the Trial Examiner makes the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a partnership consisting of Joseph L.
Goodin, Charles R. Goodin, Robert L. Goodin and Mrs.
Alma A. Goodin, doing business as Lebanon Oak Floor-
ing Company. It is engaged in the manufacture of flooring
and furniture parts at its plant located at Lebanon, Ken-
tucky. During the past year, which is representative, the
partnership had a direct outflow of goods and materials,
in interstate commerce, valued in excess of $50,000,
which it sold and shipped from its plant directly to points
outside the State of Kentucky. It is found that at all times
material the Respondent has been an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION
International Woodworkers of America , AFL-CIO, is,
and at all times relevant hereto has been , a labor organiza-
tion , within the meaning of Section 2(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Joseph L. Goodin,
Charles R. Goodin, Robert L. Goodin and Mrs.
Alma A. Goodin: d/b/a Lebanon Oak Flooring
Company, Lebanon, Kentucky , its agents , succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Trial Examiner: This matter was
heard on May 2, 1967, on issues of (1) whether the
Union, originally certified on September 3, 1965, is still
I Although the parties at the preheanng conference jointly agreed to the
receipt in evidence of the great bulk of exhibits herein , these w :re neces-
sarily received in evidence as General Counsel's exhibits rather than as
joint exhibits as there appears to be no provision in the Board 's Rules and
Regulations for joint exhibits , and the practice of marking exhibits as
"joint exhibits" appears to be unknown in unfair labor proceedings. This
III. UNFAIR LABOR PRACTICES
A. Issues as to Status of the Union as Exclusive
Representative of the Unit
Respondent, by its pleadings as narrowed at the hear-
ing, has placed in issue the status of the Union as the bar-
gaining agent for the unit described below from and after
September 3, 1966, which date marks the expiration of
the first year of the Union's certification as the exclusive
representative of all the employees in the unit described
below for the purposes of collective bargaining.
The pleadings show that Respondent's production and
maintenance employees including its boilerroom em-
ployees at its Lebanon plant, but excluding all office cleri-
cal employees, and all guards, professional employees
and supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
The record further establishes that the Charging Party
or Union was certified by the Board on September 3,
footnote is prompted by what appears to be a complaint by Respondent in
its brief that "... all documents and correspondence dating back to May
1966, were allowed by the Tnal Examiner to be entered as General Coun-
sel Exhibits , into the record " The Board may desire to give con-
sideration in the next revision of its Rules for a provision for the receipt in
evidence of joint exhibits
167 NLRB No. 104
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1965, as the exclusive representative of all of the em-
ployees in the above-described unit for purposes of col-
lective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employ-
ment.
It is established by stipulation that on September 3,
1966, there were approximately 80 employees in the unit.
On September 1, 1966, the Union mailed to the Re-
spondent 54 union dues-checkoff authorization cards
bearing the signatures of 54 employees in the unit. These
54 employees constitute a majority of the employees in
the unit. The great bulk of the cards are dated August
30 and 31, 1966, some are dated within a few days
thereof, and none no more than 35 days thereof. The
cards, addressed to Respondent and entitled "Union
Dues Authorization," read as follows:
I hereby authorize and direct you to deduct from my
pay and remit to Local 5-5 1, International Wood-
workers of America, AFL-CIO-CLC, a sum equal
to my monthly dues and initiation fee is payable.
This authorization and direction may be revoked only
during the (15) day period immediately preceding the
anniversary date of the collective-bargaining agree-
ment 2 between the Company and the Union, by
registered mail, of such revocation. This authoriza-
tion will be automatically renewed to the next an-
niversary date if such notice is not received.
Effective Date Employee Signature
Witness Clock Number
The covering letter under which the cards were mailed
to the Union under the signature of a union representative
reads in part as follows:
The effective date on these check-off cards is also
the date on which the employee signed the card, also,
if you will note I have placed the employees's clock
number opposite his name for identification in case
of misspelling of names.
The above employees are members of this organiza-
tion and the number does prove, without a doubt, this
organization continues to represent a majority of
your employees for the purpose of collective bargain-
ing.
Respondent has not presented any testimony or docu-
mentary proof to show that the Union did not continue to
represent the employees in the unit at all times from and
after September 3, 1965, following the Union's certifica-
tion as of that date as the exclusive representative of all
employees in the unit.
2 This reference to a collective-bargaining agreement between the Com-
pany and the Union is in anticipation of such an agreement being ex-
ecuted. There has been no collective-bargaining agreement between the
At the hearing, Respondent's representative William F.
Gutwein, who has represented Respondent in all cor-
respondence and dealings with the Union, stated: "We
[Respondent] never claimed to refuse to bargain because
they [the Union] did not represent the people
[employees in the unit]."
Discussion and Conclusion
The law is well settled that ordinarily a certification is
absolute proof of the majority status of a certified union
for a period of a year. The law is equally well settled that
after the first year of certification a presumption arises by
reason of the certification of the Union's continued
majority status (New England Lead Burning Company,
133 NLRB 863, 867), "unless a doubt as to the represent-
ative status is raised in good faith" Richard Kaase
Company, 141 NLRB 245).
In the instant case General Counsel did not merely rely
on the presumption created by the Union's certification
of the Union's continuing majority status after the first
year anniversary of the certification, but introduced
unchallenged proof that the Union continued to represent
a majority of the employees in the unit in the form of writ-
ten authorizations by the majority of the employees in the
unit to Respondent authorizing the deduction from their
pay and remittance to the Union of sums equal to their
monthly union dues. It is difficult to conceive of better
proof of continued Union's majority status than this.
Respondent, on the other hand, has failed to produce
any evidence to establish a doubt, let alone a good-faith
doubt, that the Union did not continue to represent the
majority of the employees in the unit at all times here
material.
I accordingly find and conclude that the General Coun-
sel has sustained his burden of proof of showing that the
Union has continued to represent the employees in the in-
volved unit at all times here material as their exclusive
bargaining representative with respect to rates of pay,
wages, hours of employment, and other conditions of em-
ployment.
I further find and conclude that Respondent is in viola-
tion of Section 8(a)(5) and (1) of the Act by reason of its
failure to recognize and bargain with the Union as the ex-
clusive bargaining representative of all of the employees
in the unit.
B. Issue as to Whether Respondent has Refused to Bar-
gain with the Union Except Under Conditions
The pleadings also raise an issue as to whether Re-
spondent is in further violation of Section 8(a)(5) and (1)
of the Act by reason of its refusal from and after about
January 10 and 25, 1967, to (a) meet and (b) bargain col-
lectively with union agents of the employees in the above-
described unit with respect to rates of pay, wages, hours,
and other conditions of employment, except on the condi-
tion that the Union first submit assurances to Respondent
parties to date. The principal issue in the case is whether Respondent is in
violation of Section 8 (a)(5) by reason of refusal to meet and bargain with
the Union.
LEBANON OAK FLOORING CO.
prior to any meeting in the form of written proposals or
otherwise, that such meeting would not, in Respondent's
view, be futile. 3
The pleadings and the record show that Respondent at
all times here material has been represented by William
F. Gutwein, a labor relations consultant of Louisville,
Kentucky, as its exclusive agent in all its labor relations
with the Union. Mr. Gutwein, who is not an attorney,
also appeared as Respondent's representative in this
proceeding.
As heretofore shown, the Union was certified as the
unit's exclusive bargaining agent on September 3, 1965.
The Union engaged the Company in an economic
strike in behalf of the unit between March 8 and May 25,
1966, when the strike was called off by the Union. During
this period there were negotiations between the Union
and the Company for a collective-bargaining agreement
in which the Federal Mediation and Conciliation Service
participated. These negotiations and the efforts of the
Federal mediator to mediate the differences between the
parties were unsuccessful. The record shows that during
the course of the negotiations the Company submitted a
contract proposal to the Union at a meeting held on April
18, 1966, and that the Union at the same meeting rejected
the Company's contract proposals, but that later the
Union at a meeting held on May 24, 1966, attempted to
withdraw its prior rejection of the Company's April 18
offer and to place itself on record as accepting that offer.
The record further shows that the Company at the meet-
ing of May 24, under the auspices of the Federal media-
tor, submitted a second contract proposal to the mediator
which was identical with the April 18 contract proposal,
except for the withdrawal of the union dues-checkoff
provision in the original proposal and the substitution of
a 1-year term clause for the 3-year term clause in the
original proposal. The record further discloses that the
Union at all times contended that neither the Company
nor the mediator ever advised it of this second contract
proposal of May 24 by the, Company.
The Company at all times contended that its offer of
May 24 superseded its original proposal of April 18 and
represented its latest contract proposal.
The Union, believing that its acceptance of Respond-
ent's contract proposal of April 18 created a valid con-
tract and feeling aggrieved at Respondent's refusal to em-
body the April 18 proposal into a formal binding agree-
ment between the parties, filed charges with the Regional
Director of the Board on June 17, 1966, in Case
9-CA-3960,4 charging Respondent with a violation of
Section 8(a)(5) and (1) of the Act for its alleged refusal to
bargain collectively with the Union from and after May
24, 1966. The Regional Director by letter dated July 29,
1966 (G.C. Exh. 10), refused to issue a complaint under
the charge for the principal reason that an investigation
indicated that the Union, on April 18, 1966, had rejected
the Employer's contract proposal of that date and the
Company had made a new offer to the Union as of May
24, 1966.
The Union appealed the Regional Director's refusal to
issue a complaint under its charge. The appeal was denied
3 Allegations of the complaint here under consideration are embraced
in paragraph 8(a) and (b) thereof which are denied in Respondent's
answer.
755
by General Counsel in a letter dated November 3, 1966,
on the grounds:
Under all the circumstances the evidence was insuf-
ficient to establish that the Union's counterproposal
to the Company's April 18 offer had not been re-
jected by the Company at the May 24 meeting and
that the Union had not been informed that the Com-
pany had changed its April 18 offer. Accordingly, in-
sufficient basis was deemed to exist for a finding that
the Company was under any statutory obligation to
execute a contract embodying its April 18 offer.
During the pendency of the unfair labor proceeding in
Case 9-CA-3960, the Union in or about the early part of
August 1967, requested the Federal mediator to set up
another mediation meeting with the Company and the
Union. In response to this endeavor, Gutwein on August
12 wrote to Homer Hartzog, the Union's representative,
that Respondent would give consideration to participa-
tion in the requested mediation meeting upon "receipt of
some indication from you [as the Union's representative]
in advance that our next meeting will not turn out to be
`futile,' as our last meeting did." As an indication that the
next meeting between Respondent and the Union Would
not be "futile," Gutwein requested Hartzog that he "send
to me, in writing, the Union's present position on the
Company's last offer made on May 24, 1966, or whatever
counterproposal the Union wishes to make at this point."
The Union on August 23 through its Attorney John T.
Lavey replied to Gutwein's request for a written state-
ment "pertaining to the Company's offer made to it on
May 24, 1966" that it was "impossible" for the Union to
do this "because the Union never received any offer from
the Company or any representative of the Company on
May 24, 1966, and [also that] the Union never received
any offer from the Company subsequent to April 18,
1966."
By letter dated August 27, the Union's aforementioned
representative Hartzog made a similar reply to Gutwein,
but nevertheless offered to meet with Gutwein at any
date available to Gutwein.
On August 30, Gutwein in behalf of Respondent wired
an ultimatum (G.C. Exh. 7) to Union Attorney Lavey
that the Company would withdraw its May 24 contract
proposal "unless Union indicates official consideration or
acceptance of same by 5 P.M., September 7, 1966."
Under an accompanying letter of the same date, Gutwein
sent the text of the telegram to Hartzog.
The Union did not reply to Gutwein's ultimatum as it
appears it was awaiting the result of its appeal from the
Regional Director's refusal to issue a complaint in Case
9-CA-3960 under its charge in which the objective was
to impose a statutory obligation on Respondent to ex-
ecute a contract embodying its April 18 offer.
Notwithstanding the Company's ultimatum of August
30 that it would withdraw its contract proposal of May 24
unless the Union "indicates official consideration or ac-
ceptance" of the May 24 proposal by September 7, the
record shows that Respondent had in fact put into effect
all of the economic features of its May 24 proposal on
4 Official notice is taken of the charge in Case 9-CA-3960.
310-541 0 - 70 - 49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 25 when the strike against the Company was called
off by the Union.
Some 3 weeks after the Union lost its appeal in Case
9-CA-3960, the Union's President J L. Baughman in a
letter dated November 21, 1966, requested the Federal
Mediation and Conciliation Service "to set a meeting for
further negotiations with the Company."
Later, under a covering letter dated January 5, 1967,
Baughman sent Gutwein a copy of his letter to the Media-
tion Service seeking another meeting with the Company.
In his letter, Baughman notified Gutwein directly of the
Union's "desire to re-enter negotiations" with Re-
spondent.
Gutwein under a reply dated January 10, 1967,
declined in behalf of Respondent to agree to a further col-
lective-bargaining meeting with the Union unless the
Union gave the Company an advance indication that
"another meeting with the Union would not be unproduc-
tive or futile." Gutwein stated that he believed that this
demand was justified "in view of the Union's preference
to litigate the matter [in the aforementioned Case
9-CA-3960]; the Union's default in accepting the Em-
ployer's May 24, 1966 proposal, by September 7, 1966,
and in consideration of the fact that the Union's certifica-
tion year has expired . . . through no fault or delay of the
Employer; [and] the fact that about five months have
elapsed during which no meeting was requested by the
Union.. .
Baughman in a letter to Gutwein dated January 20,
1967, again reasserted the Union's request for negotia-
tions for a collective-bargaining agreement. The text of
Baughman's letter to Gutwein is as follows:
I am writing concerning our request for negotiations
for a contract covering employees of the Lebanon
Oak Flooring Company, and with specific reference
to your letter of January 10, 1967.
It is impossible to understand the tone and content of
your January 10 letter ...
Three facts are now clear:
1. The Union currently represents a majority of
the employees in an appropriate unit, as reaf-
firmed by our letter of September 1, 19665
2. The Union wishes to meet with the Com-
pany to bargain for a contract.
3. The legal effects of past arguments about
proposals and counterproposals have been
resolved in favor of the employer position
[in Case 9-CA-3960] by the N.L.R.B
Who made and withdrew what proposal when has
nothing to do with the current situation which is
dominated by these facts. Your long recitation
featuring comments about your deadlines and
proposal withdrawals makes no contribution to con-
structive bargaining.
If you are interested in coming to agreement on a
contract with good faith bargaining, please respond
to my letter of January 5, 1967, at your earliest con-
venience.
5 This is a reference to the issue raised by Respondent's pleadings as to
whether the Union continued to represent the involved unit after the lapse
of the first certification year Findings and conclusions on this issue in
Gutwein, in the final communication between the
parties through their representatives, replied to
Baughman under letter dated January 25, 1967, in which
he again demanded "some assurance that in the event a
meeting was agreed to, it would not again turn out to be
unproductive or futile." He reiterated that he was making
this demand because "We still feel that since there has
been no meeting between the parties since May 14, 1966
[sic] ... and since all of the events and delays occurring
since then have been initiated by the choice of the Union
...." The letter, in addition to demanding assurance from
the Union that the requested meeting between the parties
would not be "unproductive or futile," also set a
"deadline" for the receipt of such assurances which was
to be "before February 11, 1967."
Discussion and Conclusion
The Trial Examiner is of the opinion that Respondent
is in violation of the good-faith bargaining requirements
of Section 8(a)(5) of the Act by its refusal from and after
January 10 and 25, 1967, to meet with representatives of
the Union to discuss rates of pay, wages, and other condi-
tions of employment, except on Respondent's condition
that the Union give advance written assurances that the
meeting would not be "unproductive or futile."
While it is doubtful that an employer could ever meet
the good-faith collective-bargaining requirements of the
Act by a refusal to bargain with a union except on the em-
ployer's condition that the union give advance written as-
surances that the requested collective-bargaining meeting
would not be "futile," the facts of record in the instant
case compels the conclusion that Respondent's conduct
both before and after the critical dates of January 10 and
25, 1967, manifests not only lack of good-faith bargaining
but also shows bad-faith bargaining. This is evident from
Respondent's conduct both during the pendency and after
the conclusion of the Union's unsuccessful unfair labor
practice charge against Respondent in the aforemen-
tioned Case 9-CA-3960 when Respondent in response
to renewed requests still persisted in its refusal, except on
conditions, to meet and bargain with union representa-
tives.
Despite the fact that the Union was certified on Sep-
tember 3, 1965, it appears that serious negotiations
between the parties commenced only during the course of
an 87-day strike in the spring of 1966 when the Company
made its aforementioned contract proposal of April 18 to
the Union. The Union, believing that a contract had come
into being upon its acceptance of Respondent's April 18
contract proposal and being aggrieved of Respondent's
refusal to formalize the agreement by a wntten contract,
filed the charge in Case 9-CA-3960 on June 17, 1966,
under the provisions of section 8(a)(5) hnd (1) of the Act,
to compel Respondent to execute a' contract embodying
its April 18 offer. As heretofore shown, the Regional
Director on July 29, 1966, refused to issue a complaint
on the Union's charge, and the Union's appeal from the
refusal was denied on November 3, 1966, by General
Counsel because of insufficient evidence to sustain the
charge.
favor of the Union have been set forth in the preceding section of this
Decision
LEBANON OAK FLOORING CO.
Throughout the dispute culminating in the denial of the
Union's appeal from the Regional Director's refusal to
issue a complaint in Case 9-CA-3960, the Company con-
tended that the Union had rejected its April 18 offer and
that the only offer then before the Union was its sub-
sequent contract offer of May 24. The Company's con-
tract proposals of April 18 and May 24 are identical ex-
cept for two important changes. One of these is that the
Company in its May 24 proposal withdrew the provision
for a union dues checkoff contained in its April 18 offer.
The other change is that Respondent in its May 24
proposal substituted an offer of a 1-year contract for the
3-year contract proposed in its April 18 offer. Although
it would appear as a matter of law that Respondent had
the legal right to make these changes under the findings of
fact in Case 9-CA-3960, I find that these unilateral
withdrawals without any discussion on matters of such
grave importance to Union interests as the union dues-
checkoff provision and the provision for a long-term con-
tract, manifests bad-faith bargaining.
The record shows that Respondent put into force and
effect all of the economic provisions of its May 24 con-
tract proposal on May 25 when the strike of its em-
ployees ended. Notwithstanding this, Respondent issued
an ultimatum to the Union on August 30, 1966, that it
was withdrawing its contract proposal of May 24 unless
the Union "indicates official consideration or acceptance
of same" by September 7, 1966. 1 find in this ultimatum
another indication of Respondent's bad-faith bargaining.
Since the May 24 contract offer was for all practical pur-
poses in effect by Respondent's own unilateral action at
the time the ultimatum was issued, it is inferred that the
ultimatum was issued solely for the purposes of harassing
the Union. This is especially evident from the fact that at
the time the Company issued its ultimatum Respondent
was still pressing its defense in Case 9-CA-3960 that its
only extant contract proposal was its offer of May 24 and
not its April 18 offer as contended by the Union.
Sometime 6 in early August 1966, shortly after the Re-
gional Director's refusal of July 29, 1966, to issue a com-
plaint under the Union's charge in Case 9-CA-3960, the
Union sought another mediation meeting with Gutwein
as Respondent's representative, although its appeal from
the refusal to issue the complaint was still pending. Cor-
respondence of record' by the Union to Gutwein makes
it clear that the Union was seeking a recommencement of
negotiations without waiving its claim that Respondent's
offer of April 18 had become fructified by the Union's ac-
ceptance thereof and of its further contention that it had
never received a subsequent offer under date of May 24
as claimed by Respondent. Gutwein in his replies of Au-
gust 12 and 27, 1966,8 to the Union's request stated that
he would consent to another negotiation meeting with
union agents only if he were given advance "indication"
in writing by the Union's representatives of "the Union's
resent position on the Company's last offer made on
May 24, 1966, or whatever counterproposal the Union
wishes to make at this time." Gutwein stated he was im-
posing this condition so that "we will not have trouble
later on proving what happened," notwithstanding the
fact that he had been put on notice for at least several
6 The precise date is not reflected in the record
' As reflected in G C Exh 3
' As reflected in G C Exhs 2 and 4
'The last paragraph of Gutwem's letter of January 10, 1967, to the
Union reads "Upon recipt of the information [the assurance that a
757
weeks that the Union had been claiming right along that
it had never received a May 24 contract proposal from
Respondent and that he then knew that the Union in ask-
ing for a renewal of negotiations was not waiving its con-
tention that the Union already had an enforceable con-
tract by reason of Respondent's offer of April 18 and its
acceptance thereof.
It is thus clear that the Union's request of early August
for renewed bargaining negotiations gave Respondent the
clear chance to once again start contract negotiations
despite past misunderstanding. Gutwein's rejection of
this opportunity to meet with the Union's representatives
in free and open discussion without unacceptable precon-
ditions on matters of mutual importance to the parties and
Gutwein's persistence in his correspondence with the
Union in rehashing past events and insistence on seeking
to place the blame on the Union for past failures to reach
an agreement rather than to make a fresh start in negotia-
tions, is still another indication, in my opinion, of Re-
spondent's bad-faith bargaining.
While the above-described bad-faith bargaining on the
part of Respondent took place in 1966 or prior to the
herein involved critical period starting with January 10
and 25, 1967, when Respondent is charged under the
complaint with unlawful refusal to meet and bargain with
the Union pursuant to its requests of January 5 and 20,
1967, it is found that Respondent's conduct in 1966 is
pertinent to the issue of Respondent's bad-faith bargain-
ing conduct in 1967 because the record shows that
Respondent's bargaining conduct in 1967 was and is
merely a continuation of the bad-faith bargaining started
by Respondent as early as May 1966.
But wholly aside from Respondent's bargaining con-
duct in 1966, Respondent's conduct in 1967 independ-
ently establishes that the Company engaged in bad-faith
bargaining with the Union from and after the critical dates
of January 10 and 25, 1967. The Union, having lost its
appeal on November 21, 1967, to compel Respondent to
execute a contract embodying Respondent's offer of
April 18, requested the Mediation Service on November
21, 1966, to arrange a meeting of union representatives
and company officials for further negotiations. It appears
that the Mediation Service either did not act on this
request or was unable to get the Respondent to agree to
such a meeting, as the record next shows that the Union
under letter of January 5, 1967, made a direct request to
Respondent's representative Gutwein for a meeting. Gut-
wein replied under letter of January 10, 1967, in which he
declined to meet with the Union except on the condition
that he receive advance assurances from the Union that
the requested meeting would not be futile, reserving deci-
sion, however, on whether to grant the Union another
negotiation meeting until after receipt and study of the
requested assurances that a meeting would not be unpro-
ductive.'' Most of Gutwein's 2-page letter, however, was
devoted to rehashing the prior dispute between the
parties as whether the Employer's offer of April 18 or
May 24 was its last offer and to scolding the Union for
having pressed its claim before the Board that the Com-
pany's April 18 offer was its last offer. Referring to the
Union's failure to sustain its contention before the
Board" that a valid contract had arisen out of the Union's
acceptance of Respondent's offer of April 18, Gutwein
utilized his letter to taunt and mock the Union with the re-
mark: "It is also apparent that since this did not work out
further meeting would not be futile], you can be assured that such infor-
mation will be considered seriously on its ments, after which time we will
let you know our position concerning your request for the Mediation Ser-
vice to arrange another meeting between the Union and the Company "
10 In aforementioned Case 9-CA-3960
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the Union had hoped, that the Union now wishes to
continue negotiations for some reason of its ownt"
The Union by its President Baughman under a letter
dated January 20 again requested a meeting with Re-
spondent but without the precondition Gutwein sought
to impose. Baughman, after calling attention to these
"dominating" facts:
1. The Union currently represents a majority of the
employees in an appropriate unit , as reaffirmed by
our letter of September 1, 1966.
2. The Union wishes to meet with the Company to
bargain for a collective contract.
3. The legal effects of past arguments about
proposals and counterproposals have been resolved
in favor of the employer position by the NLRB.
stated:
Who made and withdrew what proposal when has
nothing to do with the current situation which is
dominated by these [above-stated] facts. Your long
recitation featuring comments about your deadlines
and proposal withdrawals makes no contribution to
constructive bar*aining.
We do not think that because we lost the board
case or because the employer withdrew any proposal
at any time requires us to beg for a favor of a meet-
ing. We think the law requires the Company to meet.
In his reply dated January 25, 1967, ending the com-
munications between the parties, Gutwein once again re-
jected the Union's request for a meeting except again on
the condition that he receive advance assurance "by
means of a proposal in detail" that the requested meeting
"would not again turn out to be unproductive." The clear
implication of Gutwein's letter is that if the Union's
"proposal in detail" appeared "unproductive or futile" in
Respondent's view, Gutwein would refuse to meet and
bargain with the Union. This is not the free and open bar-
gaining contemplated by the Act. Although Gutwein in
his letter made it appear that he was demanding a written
proposal from the Union prior to the requested meeting
for the purpose of ascertaining the unresolved issues, the
record is clear that Respondent already had full
knowledge of the unresolved issues between the parties
when he replied to the Union request for a bargaining ses-
sion. These would be the issue of the union dues-checkoff
provision which the Company had offered in its April 18
proposal but withdrew in its May 24 contract proposal,
and the issue of the 3-year contract offered by Respond-
ent in its April 18 proposal but reduced to 1 year in its
May 24 offer. It will be recalled that these were the only
differences between Respondent's April 18 offer and its
May 24 offer and that the Union had accepted and sought
to enforce the April 18 offer. It will also be recalled that
except for the two indicated differences all other
economic aspects of the two otherwise identical offers
were unilaterally put into effect by Respondent on May
25.''
The overall impression created by the record of
Respondent's conduct throughout its negotiations with
the Union in 1966 and 1967 is that of irresponsibility and
a quarrelsome effrontery singularly lacking in any
evidence of good-faith bargaining for which Gutwein as
Respondent's representative and spokesman must share
the major responsibility as he holds himself out as a
public labor relations consultant.
In summary, it is found under all the circumstances of
this case that Respondent's refusal to meet and bargain
with the Union pursuant to its requests of January 5 and
20, 1967, except on the condition that the Union submit
" Although from the present record, the only unresolved issues
between the Company and the Union appear to be the Union's desire for
a union dues checkoff and a multiple year contract, the order entered
advance assurance in writing in the torm of written
proposals that the requested meeting would not be un-
productive or futile shows not only lack of good-faith bar-
gaining but also bad-faith bargaining on the part of
Respondent in violation of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain un-
fair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully refused
to bargain with the Union as the exclusive representative
of its employees in an appropriate unit. It will therefore
be recommended that Respondent, upon request, bargain
collectively with the Union, and in the event an un-
derstanding is reached, embody such understanding in a
signed agreement.
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 is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Since September 3, 1965, the Union has been the
exclusive representative of all employees in the following
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act: All produc-
tion and maintenance employees including boilerroom
employees, employed by Respondent at its Lebanon,
Kentucky, plant, excluding all office clerical employees,
and all guards, professional employees, and supervisors
as defined in the Act, as amended.
4. By refusing, from and after January 10 and 25,
1967, to bargain collectively with the Union as the exclu-
sive representative of his 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
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
below requiring the Company to bargain with the Union at its request is
not to be interpreted as limiting the negotiations between the parties to
these two unresolved issues
LEBANON OAK FLOORING CO.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, it is
recommended that Respondent , of Lebanon , Kentucky,
its agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing , upon request , to bargain collectively
with International Woodworkers of America, AFL-CIO,
as the exclusive representative of all Respondent's em-
ployees in the appropriate bargaining unit described
hereinabove , with respect to rates of pay, wages, hours of
employment , and other terms and conditions of employ-
ment , and, if an understanding is reached , embody such
understanding in a signed agreement.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request , bargain collectively with the above-
named Union as the exclusive representative of all of the
employees i n the appropriate unit , and embody in a
signed agreement any understanding reached.
(b) Post at its Lebanon, Kentucky, plant, copies of the
attached notice marked "Appendix."'L Copies of said
notice , to be furnished by the Regional Director for Re-
gion 9 , after being duly signed by Respondent , shall be
posted by it immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter , in con-
spicuous places, including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered , defaced , or covered by any other material.
(c) Notify said Regional Director , in writing, within 20
days from the receipt of this Decision , what steps have
been taken to comply herewith."
12 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
13 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 9, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
759
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL, upon request , bargain collectively with
International Woodworkers of America , AFL-CIO,
as the exclusive bargaining representative of all em-
ployees in the bargaining unit with respect to rates of
pay, wages , hours of employment , and other condi-
tions of employment , and if any understanding is
reached , embody such understanding in a signed
agreement . The bargaining unit is:
All production and maintenance employees in-
cluding boilerroom employees , employed by us
as Employer at our Lebanon , Kentucky , plant,
excluding all office clerical employees , and all
guards, professional employees , and supervisors
as defined in the National Labor Relations Act,
as amended.
JOSEPH L. GOODIN,
CHARLES R. GOODIN,
ROBERT L. GOODIN AND
MRS. ALMA A. GOODIN
D/B/A LEBANON OAK
FLOORING 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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 684-3686.