Lee Dean Products, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1970

181 N.L.R.B. 1047 (N.L.R.B. 1970)

LEE DEANE PRODUCTS, INC. 1047
Lee Deane Products , Inc. and International Union,
Allied Industrial Workers of America , AFL-CIO.
Case 21-CA-8461
April 13, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On October 14, 1969, Trial Examiner David E.
Davis issued his Decision in the above-entitled case,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that Respondent had not engaged in one other
unfair labor practice, namely, threatening to deprive
strikers of their seniority, and recommended that the
allegations of the complaint pertaining thereto be
dismissed.' Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case,' including the exceptions and brief, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(5) and (1) of the
Act by its refusal to recognize and deal with
union-appointed stewards in connection with the
presentation of employee grievances. Contrary to
Respondent, which contends that the Union was
"not entitled" to shop stewards "as a matter of
right", it is well established that an employer may
not deny this right to the majority representative of
the employees.' Section 9(a) of the Act4 secures to
the bargaining agent the right to attend the
adjustment of grievances without qualification.
Thus, the right of union stewards to participate in
the processing of grievances is a statutory right
which an employer may not nullify by its refusal to
agree to deal with union stewards for that purpose
'in the absence of exceptions thereto, we adopt this finding , pro forma
'Upon careful scrutiny thereof, we have discovered no evidence reflecting
upon the Trial Examiner 's fairness and impartiality We therefore find no
merit in Respondent 's charge of bias and prejudice and deny its motion for
a new hearing
'Bethlehem Steel Company, 89 NLRB 341; Square D Company, 105
The Trial Examiner also found that Respondent
violated Section 8(a)(5) and (1) of the Act by (1) its
letter concerning the scope of the Union's
representative status,' (2) its unilateral withdrawal of
the Christmas bonus in December 1968, and (3) its
overall failure to bargain with the Union. We
disagree for the following reasons.
As to (1), the Trial Examiner found that
Respondent engaged in unlawful conduct by its
letter, dated September 19, 1968, and prepared by
Respondent's plant manager, Patrick Quaney,
notifying its employees that the Union was not the
recognized representative of all the employees, and
that Respondent failed to dissipate its effects by "an
instrument of the same or equal stature", i.e., a
letter to all employees Respondent conceded that
the letter was unlawful but contended that it was
totally "repudiated" by Kenneth R. White,
Respondent's negotiator,' at a bargaining session on
October 7, 1968, with Charles Graham,
International Representative of the Union, and at
the next session which was attended by the union
bargaining committee consisting of employees as
well as union officials Respondent also contended
that its disavowal of the letter was further expressed
in its October 22 and December 7, 1968, bulletins to
all employees which contained a statement that the
parties had agreed to a "union recognition article."
We agree with Respondent that its statements to
Graham and the union bargaining committee and
the contract provision expressing its obligation to
"recognize the Union as the sole and exclusive
bargaining agent for all the Company's" unit
employees were sufficient to dissipate the effects of
the letter.
As to (2), it is undisputed that the parties
discussed the subject of the Christmas bonus during
at least 6 of 13 negotiation sessions.'
Graham testified that on December 7, 1968,
Respondent stated that it would not pay the
Christmas bonus because of an unexpected excessive
tax levy and on January 7, 1969, gave the same
reason for not having done so in December 1968.8
White testified that at a session on December 6,
1968, he told the union representatives that the
Company was not going to pay the bonus because it
did not know what the total "economic package was
going to cost the Company " Although Graham
NLRB 253, Winter Garden Citrus Products Cooperative , 116 NLRB 738
'See fn 20 of the Trial Examiner's Decision for the text thereof
'The Union , which won a Board-conducted election on July 16, 1968,
was certified as the bargaining representative of the unit employees on
September 20, 1968
'White, a labor relations consultant, was retained by Respondent after
the preparation of the letter
'The bargaining period extended from October 7, 1968, to February 25,
1969
'James Linn Rodgers, president and general manager of Respondent,
testified without contradiction that on October I, 1968, he became aware
of an unusual tax liability when the Company was audited by Internal
Revenue Service which stated that the Company had depreciated capital
equipment at too rapid a rate IRS claimed $150,000 , but the settlement
figure came to $45,000
181 NLRB No. 168
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that White made no statement to this
effect , Barbara Toland , an employee member of the
union committee , testified on cross-examination that
White did say that the Company could not give a
bonus because it did not know what "the total cost
of the economic package would be." In this
connection , Respondent on December 6, 1968,
issued a bulletin to the employees containing, inter
alia, the following statement : " Because of an
unexpected excessive tax levy, the Company
informed the Union [at the December 5, 1968,
session] that a Christmas bonus this year would not
be possible ; plus the fact that there is no way of
knowing what the costs of the new Union contract
will be . If it is possible to grant a Christmas bonus,
the Company will do so . An announcement will be
forthcoming soon ."9 On December 17, 1968,
Respondent sent to all employees another bulletin in
which it announced that " Because of a severe tax
burden (part of which was the government ' s surtax),
it will not be possible to give a discretionary
monetary bonus this year as in the past years."
It is clear from the foregoing that Respondent
fulfilled its bargaining obligation with respect to the
Christmas bonus. Although , as the Trial Examiner
pointed out , Respondent referred to the bonus as
"discretionary ," and stated at the final session that
it was not "pleading poverty" and had discontinued
the bonus because another International
Representative , Gene Martin , "[was] in the picture,"
the critical facts are that Respondent did discuss the
Christmas bonus with the Union at a number of
bargaining meetings and did set forth the business
and financial reasons why it was unable to continue
paying the Christmas bonus at the end of 1968.
Accordingly, we find , contrary to the Trial
Examiner , that Respondent ' s discontinuance of the
bonus was not unlawful as Respondent had prior
thereto engaged in extensive bargaining regarding
this matter
As to (i), the Trial Examiner found an overall
failure to bargain on the part of Respondent despite
the absence of an allegation to that effect in the
complaint and despite the General Counsel ' s refusal
at the close of the hearing to follow the Trial
Examiner ' s suggestion that he add such an
allegation to the complaint . The Trial Examiner
nevertheless undertook to make findings on this
issue because of the statement in the General
Counsel ' s brief to the Trial Examiner that
"throughout the entire course of bargaining
Respondent manifested no evidence that it was
motivated by good faith," the Trial Examiner's
finding that the matter was fully litigated at the
hearing , and the policy of giving liberal construction
to pleadings in the Federal Courts.
As the General Counsel refused to include in the
complaint an allegation of overall failure to bargain,
'There is no evidence in the record that the Union in any of the
subsequent sessions challenged the accuracy of the statements contained in
this bulletin
we agree with Respondent that the complaint cannot
be amended after the hearing on the basis of the
above-quoted statement. It is also clear that the
General Counsel offered testimony and other
evidence only in support of the specific violations
alleged in the complaint, and Respondent limited its
defense to those specific questions. We therefore
find in agreement with Respondent that the parties
did not litigate at the hearing the issue of
Respondent's overall failure to bargain in good
faith.
In view of the foregoing considerations, we do not
adopt the Trial Examiner's holding as to
Respondent's overall refusal to bargain in violation
of Section 8(a)(5) and (1) of the Act.10 ,
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Lee
Deane Products, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and deal with stewards
designated by the Union as its in-plant
representatives.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them by Section 7 of the
National Labor Relations Act, as amended.
2. Take the following affirmative action which the
Board finds will effectuate the purposes of the Act:
(a) Recognize and deal with stewards or other
in-plant representatives designated by the Union.
(b) Post at its plant in Santa Fe Springs,
California, copies of the attached notice marked
"Appendix."" Copies of said notice on forms
provided by the Regional Director for Region 21,
after being duly signed by Respondent, shall be
posted immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the
complaint be, and it hereby is, dismissed insofar as
"As the Trial Examiner made an unchallenged finding that no backpay
remedy is called for because Respondent rehired all strikers who presented
themselves for employment upon termination of the strike , we deem it
unnecessary to pass upon his holding that the strike was an unfair labor
practice strike
"in the event that this Order is enforced by a judgment of a United
States Court of Appeals , the words in the notice reading "Posted by order
of the National Labor Relations Board " shall read "Posted pursuant to a
judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
LEE DEANE PRODUCTS, INC.
it alleges violations not found herein.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
,Board an agency of the United States Government
After a hearing at which all sides had the chance to
give evidence, the National Labor Relations Board found
that we, Lee Deane Products, Inc , violated the National
Labor Relations Act, as amended, in one respect The
Board has therefore ordered us to post this notice
You have chosen in the election held on July 16, 1968,
International Union, Allied Industrial Workers of
America, AFL-CIO, as your collective-bargaining
representative. The National Labor Relations Act gives
shop stewards selected by the Union the right to take part
in the processing of employee grievances We therefore
assure you that.
WE WILL NOT refuse to recognize and deal with
stewards designated by the Union as its in-plant
representatives.
WE WILL recognize and deal with stewards
designated by the Union as in-plant representatives.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed by Section 7 of the National
Labor Relations Act, as amended.
LEE DEANE PRODUCTS,
INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board 's Office,
849 South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: This case was tried
before the undersigned Trial Examiner on June 3, 1969, at
Los Angeles, California. Pursuant to a charge filed on
February 21, 1969, by International Union, Allied
Industrial Workers of America, AFL-CIO, herein called
the Union or Charging Party, the General Counsel of the
National Labor Relations Board , herein called the Board,
by the Regional Director for Region 21, issued a
complaint on April 10, 1969, alleging that Lee Deane
Products, Inc., herein called Respondent, engaged in
conduct constituting violations of Section 8(a)(1) and (5)
of the Act. Respondent, in its answer filed on May 2,
1969, while admitting certain allegations of the complaint,
denied that it had committed any unfair labor practices.
Briefs have been received from the General Counsel and
counsel for Respondent.
1049
Upon consideration of the entire record, including the
briefs, and my observation of the witnesses , I hereby
make the following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted and I find
that Respondent is a corporation engaged in the
manufacture and sale of plastic and fiberglas products at
Santa Fe Springs, California. In the course and conduct
of its operations, Respondent annually manufactures, sells,
and ships products valued in excess of $50,000 directly to
customers located outside the State of California
Respondent is and at all times material herein has been
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. I further find that it would effectuate
the policies of the Act to assert jurisdiction herein
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, Respondent in its answer
admitted, and I find that the Union is now, and has been
at all times material herein a labor organization within the
meaning of Section 2(5) of the Act.
III THE ISSUES
1. The complaint alleged that the appropriate unit for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act was as follows:
All production and maintenance employees, headmen,
inspectors, janitors, truckdrivers, and shipping and
receiving employees working at the Respondent's place
of business located at 15511 South Carmenita Avenue,
Santa Fe Springs, California; excluding office clerical
employees, technical employees, professional employees,
guards, watchmen and supervisors as defined in the Act.
Respondent, in its answer, denied this allegation.
2. The complaint alleged, and Respondent's answer
denied, that pursuant to a stipulation for a consent
election in Case RC-10879, the employees selected the
Union as their collective-bargaining representative and
that the Board, on September 20, 1968, certified the
Union as the exclusive bargaining representatives in the
above-described unit. At the hearing Respondent counsel's
motion to amend its answer to admit the foregoing
allegations was allowed.
3. The complaint alleged and the answer denied that the
Union since September 20, 1968, and continuing to date
has been at all times the exclusive bargaining
representative of the employees within the meaning of
Section 9(a) of the Act
4. The complaint alleged that since on or about
September 20, 1968, the Union has requested Respondent
to engage in collective bargaining and that Respondent
has refused to bargain collectively in good faith with
respect to wages, hours, and other terms and conditions of
employment in the above-described unit by:
(a) Discontinuing yearly Christmas Bonuses
(b) Refusing to bargain with respect to the subject of
meeting with and recognizing shop stewards
(c) Threatening to take away accumulated seniority
of strikers
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Informing employees that the Union had won
only the right to represent its members in collective
bargaining and had no rights in the absence of a
contract.
Respondent denied the foregoing allegations
5 The complaint alleged and the answer denied that
certain of Respondent's employees in the appropriate unit
described above went out on strike on March 27, 1969,
and that the strike was caused and prolonged by
Respondent's unfair labor practices.
6. In his brief the General Counsel contends that the
evidence shows that throughout the entire course of
bargaining, Respondent manifested no evidence that it was
motivated by good faith. As this issue, in my opinion, was
fully litigated, I shall consider this question in my
decision.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Findings
In its brief Respondent through counsel conceded that
pursuant to an election conducted on July 16, 1968, under
the auspices of the Regional Director of Region 21, the
Board certified the Union as the collective-bargaining
agent for the Company's employees
Accordingly, I find that the Union, contrary to
Respondent's answer, was as of September 20, 1968, the
certified collective-bargaining representative of
Respondent's employees in the unit described in paragraph
4 of the complaint. I further find that the Union
continued to be from September 20, 1968, and still is the
collective-bargaining representative of the employees in
the above appropriate unit.
B The Handbook for Employees
James L Rogers, president and general manager of
Respondent, called as a witness for the defense, testified
that he has been connected with Respondent since 1950
and has been president and general manager since 1953.
He further testified that as part of its election campaign in
the summer of 1968 when the Union was seeking to
represent Respondent's employees, Respondent prepared
and distributed' an employees' handbook' which according
to Rogers, embodied rules, regulations and all applicable
benefits at Respondent's plant. Rogers also testified that
the handbook was a compilation of rules that were in
effect but never been reduced to writing and that the
employees had never received any formal notice of the
matters contained in the handbook
Inspection of the handbook reveals that it includes
matters concerning hours, shift premiums, vacations,
holidays, grievance procedures, life health insurance, and
other matters dealing with wages, hours, and working
conditions as well as a statement that it is Respondent's
policy "to pay wages equal to or better than wages for
like or similar work in our industry and area "
There is no issue concerning the handbook and its
issuance, I merely call attention to it as background to
show that Respondent, when faced with the Union's
organization drive, published, for the first time, a
handbook of rules, regulations, and policies for its
employees' information. Moreover, contrary to Rogers'
'Distributed first week of July 1968
'Resp Exh 4
testimony, it is apparent that at least one benefit was
increased '
C. The Letter of September 19, 1968
A letter' directed to all employees issued by
Respondent on September 19, 1968, contained the
following passages:
The Union has won only the right to represent their
members in bargaining for a contract with the
Company The Union does not have a contract at the
present time and therefore has no rights.
The Employees' status has not changed from what it
has been in previous years If you are a non-Union
individual, you may still remain so. Whether you must
become a Union member or not will be determined by
a contract and not what any pro-Union employee tells
you. Since this point is negotiable, you do not have to
be represented by the Union unless Management agrees
to it in a contract.
Respondent in its brief admits that the foregoing
statements were improper but contends that Respondent's
"subsequent actions demonstrate clearly that it denounced
and totally repudiated those words." Counsel argues that
on October 17, 1968, at the second negotiation session,
Respondent's chief negotiator, Kenneth R. White, told the
union negotiators that the September 19, 1968, letter was
written by Plant Manager Patrick Quaney, who did not
know what he was doing. White apologized for the letter
and suggested that Charles A. Graham, the Union's chief
negotiator and an International Representative, write a
letter to White concerning the matter. At the next
bargaining session White again apologized and stated that
Respondent agreed and understood that the Union
represented all the employees for the purpose of collective
bargaining not just the members. Graham, in his
testimonial account concerning the letter, stated that he
told White, "This should be corrected, so that the
employees know that this is not, so "
Respondent further argues that as it agreed to a
recognition clause during the course of the negotiations
the effect of Respondent's prior statement in the
September 19, 1968, letter was dissipated I disagree.
The evidence shows that Respondent issued bulletins to
all employees after each negotiation session presenting its
views on various aspects of selected subjects which were
involved in the negotiations. The September 19, 1968,
letter was also a bulletin issued to all employees The
effect on employees thus can hardly be dissipated by an
apology and a statement to Graham and the three to five
members of the Union Negotiating Committee that the
September 19, 1968, statements were erroneous.
Moreover, as appears hereafter, the question of a union
shop clause was a recurring matter in both the Union's
and Respondent's proposals. Thus while the employees
were repeatedly informed that Respondent would not
agree to the Union demand for a union shop, Respondent
failed to notify the employees that the Union represented
all the employees for collective bargaining purposes, not
just its members. Accordingly, I find that the September
19, 1968, letter in the second and third paragraphs
violated Sections 8(a)(1) and 8(a)(5) in that Respondent
notified its employees that the Union was not the
'See G C Exh 2, issued by Respondent on June 28 , 1968, which shows
that Respondent had a policy of seven holidays per year but the handbook
lists eight holidays per year
`G C Exh 3
LEE DEANE PRODUCTS, INC. 1051
recognized bargaining representative of all the employees
in the appropriate unit and thus withheld the recognition
of the Union to which it was entitled. Respondent thereby
demeaned the true nature of a Board certification of a
union as the collective-bargaining representative It thus
manifests at a preliminary stage to actual negotiations, a
rejection of the collective-bargaining principle of the Act.
The deleterious effect of this conduct and Respondent's
failure to dissipate its effects by an instrument of the same
or equal stature, thereafter permeated negotiations.
Especially is this so because of Respondent's subsequent
references in various bulletins to the union shop clause
proposal of the Union.
Following the October 7 meeting, a bulletin issued to
employees contained the following
The Union informed the Company that a requirement
to join the Union (union shop) is a STRIKE issue for
settlement of this contract.'
Following the October 21 meeting, a bulletin to all
employees contained the following: "The Company still
maintains its position that no one be required to join a
union unless he wishes to "6
A bulletin issued December 6, 1968, contained the
following: "The main Union proposal that was not agreed
to by the Company was the Union demand that all
employees must join the Union "'
D. The Withdrawal of the Christmas Bonus
At the outset of his testimony, Rogers stated that it
was his intention since early 1968 to discontinue the
annual Christmas bonus and that the handbook issued in
July 1968 omitting mention of the Christmas bonus
reflected his intention to omit it. In October 1968, tax
authorities audited Respondent's accounting practices and
found that Respondent was depreciating capital equipment
too rapidly. As a result, Respondent was subjected to an
additional tax liability which was settled for $45,000.
Under these circumstances, Rogers testified, a Christmas
bonus could not have been paid out of available cash as it
had been paid in previous years During
cross-examination, Rogers testified that a bonus had been
paid for the last 12 years ranging from a total of $1,000
to $15,000 to employees In February 1968, when the
minimum wage had been increased, Respondent gave an
across-the-board wage increase which led him to consider
eliminating the annual bonus. Rogers admitted that he
signed and issued a letter to all employees dated June 28,
1968, which contained the following passages.' "Yearly
Bonus - Employees receive a generous yearly bonus
based upon their length of service and wage rate." Rogers
stated that when he first retained White, about September
19, 1968, he did not tell him that he had decided to
discontinue the annual bonus but that in his mind he had
made a firm decision to discontinue it. White in his
testimonial account admitted that the letter to all
employees, dated December 6, 1968,' was the first
occasion when employees were informed that a bonus
might not be paid in 1968 This letter, signed by Rogers,
contained the following paragraph:
Because of an unexpected tax levy, the Company
informed the Union that a Christmas bonus this year
would not be possible; plus the fact that there is no way
'[Emphasis in original ] Tr p 168
'Tr p 169
'[Emphasis in original ] G C Exh 4
'G C Exh 2
'G C Exh 4
of knowing what the costs of the new Union contract
will be. If it is possible to grant a Christmas bonus, the
Company will do so. An announcement will be
forthcoming soon.
White further testified that the letter to all employees,
dated December 17, 1968, contained the following
paragraph:
Because of a severe tax burden (part of which was the
government's surtax) it will not be possible to give a
discretionary [Emphasis supplied] bonus this year as in
past years. We hope that it may be possible, however,
to re-establish such practice next year
Graham credibly testified that during the negotiation
sessions of which there were thirteen, the first on October
7, 1968, Respondent took the position up to December 6,
1968, that the bonus was discretionary and not a subject
for collective bargaining The Union on the other hand
took the position that Respondent should pay it for the
year 1968 and put it into the contract with reference to
future years. Graham also testified that at the last
negotiation meeting, held on February 25, 1969, called by
the Federal Conciliation Service, which was attended by
Martin, the West Coast Regional Representative of the
Union, Martin asked White if the Company would pay
the Christmas bonus and White replied "No " Martin
then asked why they would not and if they were pleading
poverty White replied, "No, we are not pleading poverty.
We are not going to pay, because you are in the picture."
At that point, according to Graham, White pointed in the
direction of Martin and Graham. White, in describing his
conversation with Martin, gave the following account.
A Yes When Mr. Martin asked me whether or not
we intended to pay the Christmas bonus, I told him,
"No " And he said, "Why?" And I said, "I have
explained previously." I did tell them that. He asked
why we hadn't paid it, and I said, "Because you are in
the picture, we can't Their prior testimony did not go
far enough to clarify that. I did make a motion with
my hands in this direction, and told Mr. Martin
particularly to him, because he was a senior officer of
the Union present, because they were in the picture, we
knew it was a bargaining issue, and to go ahead and do
it, unilaterally - "
A conflict in the testimony of Graham and White
appears to concern whether the Christmas bonus was
discussed with relation to wages and other economic costs.
Graham testified that neither White nor any other
company representative indicated during the bargaining
sessions that in lieu of the Christmas bonus the Company
was thinking of putting the same money into wages.
White on the other hand testified that he told the Federal
Conciliator that if the Union would agree to other
proposals they were prepared to put additional money on
the table in lieu of the Christmas bonus.'" In this regard I
credit Graham and find that at all times during the
negotiation sessions, Respondent's position was that the
Christmas bonus was discretionary and not a subject for
collective bargaining. White's testimony, as set forth
above, to the effect that Respondent recognized the
Union's right to negotiate concerning the Christmas bonus
is clearly an afterthought designed to extricate Respondent
from its untenable legal position. More tangible and
reliable evidence of the Respondent's views on this subject
"Even if White made these remarks to the Federal Conciliator there is
no evidence that this information was conveyed to the Union negotiators
by the concilator or by White
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are the references to the Christmas bonus in the letters to
employees where on June 28, 1968, Respondent informed
employees that it was Respondent's policy to pay a
generous yearly bonus based upon their wage rates and
length of service Again in the letter to all employees
dated December 6, 1968, Respondent declared that a
Christmas bonus might not be paid in 1968 because of
certain cost factors including the cost of the Union
contract. Even then Respondent stated that if it were
possible to grant a bonus in the future, it would be done.
Finally, in announcing on December 17, 1968, that no
bonus would be paid, the bonus was referred to as
"discretionary."
I find, as White admitted in his testimony, that the
Christmas bonus was a mandatory subject of collective
bargaining." That Respondent failed to fulfill its
obligation in this regard is manifest not only from its
letters to employees, described above, but also from
White's reply to Martin's query as to why the Company
was not paying a Christmas bonus. White's reply to this
question "Because you are in the picture," is quite
illuminating and demonstrates Respondent's antagonistic
attitude and resentment toward the Union in negation of
the duty to bargain imposed by the Act. White admitted,
contrary to Roger's testimony, that inability to pay a
Christmas bonus or as he put it "poverty" was not the
reason for Respondent's failure to pay the customary
annual bonus. Despite this candid admission,
Respondent's brief argues in some detail that as
Respondent's cash position was such that a bonus could
only be paid by resort to borrowing, and therefore
Respondent was justified in refusing to pay a bonus in
1968. This argument begs the issue. The issue is not
whether Respondent's economic position precluded
payment of a bonus; the issue is the failure to bargain
with the Union concerning the fact whether a bonus
should be paid. The only reasons advanced to the Union
for the failure to pay a bonus were the fact that the Union
was in the picture and that the bonus was discretionary.
No discussion of Respondent's economic position, its
financial status or obligations, was entered into with the
Union. Indeed, no explanations of Respondent's
economic condition was offered to the Union even though
the Union inquired whether "poverty" was the reason for
the omission of the bonus. Surely under well established
principles, if Respondent relied upon its economic position
for omission of the bonus, such an explanation would have
been offered. Possibly the Union may have required more
concrete evidence of Respondent's economic position but
that is not a justification for the failure to bargain
concerning this matter Under the foregoing
circumstances, I can only find that as White stated, the
unilateral act of omitting the bonus was due to the
Union's entrance into the picture as the
collective-bargaining representative of Respondent's
employees; and the position of Respondent, as announced
in letters to the employees, that the annual bonus was a
matter for Respondent's discretion. The omission of the
bonus because the Union was in the picture manifests
Respondent's intention to punish its employees for having
selected the Union as their collective-bargaining
representative. This constitutes interference, restraint, and
coercion of employees in the exercise of the rights
guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act.' 2
"Citizens Hotel Company, 138 NLRB 706, enfd. 326 F 2d 501 (C A 5)
"The complaint does not allege a violation of Section 8(aX3) by virtue
E. The Refusal to Recognize and Deal with Shop
Stewards
An issue frequently discussed and referred to in the
negotiation sessions between the Union and Respondent
concerned the demand of the Union that "the Company
will recognize and deal with three stewards from the day
shift and three additional stewards for each additional
shift " The General Counsel alleged that Respondent
refused to bargain in good faith concerning this subject
matter Respondent in its brief to the Trial Examiner
argues that, "the subject came up for discussion, was
discussed at length, at every negotiation session held
between October 1968 and February 1969 Each time the
subject was discussed the Company set forth in detail the
reasons for its position: It did not feel that stewards were
necessary because the Company had always had a
workable procedure whereby the employee met with his
immediate supervisor and then higher management' 6 in
order to resolve any problems." Respondent contends that
because its negotiator, White, felt that his experience
indicated that the presence of stewards caused more
problems than they solved and resulted in excessive time
lost, it was justified in strongly and firmly rejecting the
Union's demand on this issue. Respondent further
contends it advanced its position in good faith and merely
engaged in a course of hard bargaining on this issue.
Respondent also points to its willingness to permit both
local and international union representatives access to the
plant on any matter "regarding the agreement "I S
Respondent additionally emphasizes that it proposed that
if the Employer's historical procedure of having the
employee attempt to resolve the grievance proved
unsatisfactory, that White and a union representative then
confer to attempt to resolve the problem. Respondent
further states that its proposal16 at article VIII, section 4
and 5, embodied a provision that if disputes remain
unresolved they can be submitted to final and binding
impartial arbitration
I reject Respondent's contentions and find that its
position, for the reasons advanced and the very contract
provisions it proposed, constituted evidence of its desire
not to reach agreement and was in derogation of the
Union's statutory status as the collective-bargaining
representative of its employees I find that its adamant
insistence to the point of impasse on this issue constituted
a refusal to bargain within the meaning of Section 8(a)(5)
and (l) of the Act.
I am fully cognizant of the Supreme Court's
admonition that "the Board may not, either directly or
indirectly, compel concessions or otherwise sit in judgment
upon the substantive terms of collective-bargaining
agreements." However, I am also fully aware that a party
to negotiations who advances propositions predictably
unacceptable to the other side demonstrates bad faith.1e In
addition, it is well settled that an employer violates the
Act by imposing terms of agreement that are in
of Respondent's impermissible and unilateral withholding of the Christmas
bonus Hence, I make no finding in this regard
"The Union later lowered its demand to two stewards on the day shift
and one on each of the other shifts
"President Rogers
"Emphasis supplied.
"Resp Exh 2
"American National Insurance Co. 348 U S 395, 404
"Reed & Prince Manufacturing Company, 205 F 2d 131, 139 (C A 1)
ce rt denied 346 U S 887
LEE DEANE PRODUCTS, INC. 1053
derogation of the bargaining representative's rights under
the Act."
Under the rules of law summarized above, it is
necessary to scrutinize the propositions advanced by
Respondent in response to the Union's demand for
stewards. Initially, consideration must be given to the
statutory provision embodied in Section 9(a) of the Act.20
Clearly Respondent's proposals deny the right of the
bargaining representative to be present at the early stages
of a grievance and the adjustment of such grievance at the
early stages. The requirement that the individual employee
himself pursue the grievance with his foreman at the
initial stage deprives the bargaining agent, at what may be
the most important phase, of an opportunity to adequately
represent the employee. Indeed the particular employee's
grievance may have general application to the
collective- bargaining status of the Union or affect many
employees under similar circumstances, yet under this
arrangement the Union would be precluded from
intervention contrary to its statutory right. The arbitration
clause itself, by limiting the arbitrator to questions
whether Respondent violated the collective-bargaining
agreement, would appear to unduly circumscribe
grievances and union participation at the later stages. The
limitation of access to union representatives to 10 minutes
per visit except with Respondent's permission and with the
proviso that production in no manner shall thereby be
curtailed or suffer, is another impediment to full union
participation in the grievance procedure. Respondent's
argument that it already had a fair and workable
procedure which had long been established portrays a
neglect of the vital change brought about by the
certification of the Union Surely, employee relations
must be accommodated to this intervening factor.
Adamant insistence in the maintenance of preexisting
techniques because they have been "workable"
demonstrates an unwarranted indifference to the Union's
status as the statutory collective-bargaining agent. In a
plant numbering 150 employees working on three different
shifts, it is highly unlikely that a union can successfully
police its contract and the grievances that may arise
without delegating to and training a minimal amount of
stewards for assistance Clearly the refusal to recognize
and deal with stewards under these circumstances
constitutes a refusal to bargain and Respondent's
alternative proposal is "predictably unacceptable" to the
Union. Clearly this places an undue burden on the Union
to police the contract from the outside when inside
representation more adequately and more fully would
enable the employees to be represented.
Plainly, the obligation to bargain encompasses a
willingness to meet with respect to any question arising
"McQuay-Norris Manufacturing Company, 116 F.2d 748 (C A 7), cert
denied 313 U.S 565
"Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for such
purposes , shall be the exclusive representatives of all the employees in such
unit for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment , or other conditions of employment Provided,
That any individual employee or a group of employees shall have the right
at any time to present grievances to their employer and to have such
grievances adjusted , without the intervention of the bargaining
representative , as long as the adjustment is not inconsistent with the terms
of a collective- bargaining contract or agreement then in effect Provided
further , That the bargaining representative has been given opportunity to
be present at such adjustment
under the terms of an agreement, a question which
frequently arises in grievances As one writer observed,
" . . Whether they [grievances] are cast in the form of an
interpretation of the agreement or not, any adjustments
made of these questions affect the whole plant "_' The
situation here is hardly distinguishable from that
presented in Bethlehem Steel Company," especially when
Respondent's proposals included a waiver of all matters
not specifically included in the agreement."
Respondent's flat refusal to recognize and deal with
union appointed stewards in order to continue its custom
of dealing with each employee himself at the initial stages
has another effect.14 Respondent, thereby is, in effect,
informing the Union in no uncertain terms that it would
control which employee representatives it would recognize
and deal with while limiting the Union's right to fairly
and fully represent all the employees in the certified unit.
This is directly in conflict with the recognized principle
that "each party to the collective-bargaining process has a
right to choose its representatives, and there is a
correlative duty on the opposite party to negotiate with
the appointed agent."'s
F. Threat to Deprive Strikers of Security
The General Counsel alleged that Respondent
threatened to take away the accumulated seniority of
strikers in violation of their Section 7 rights and thereby
violated Section 8(a)(5). The General Counsel relies on
that part of Respondent 's letter16 to all employees which
stated as follows:
It a strike occurs, the Company will continue to
operate" and you should know the following:
1. Economic strikers can be replaced - strikers can
lose their jobs
2 For strikers, obviously, pay checks stop
3 Any seniority gained with the Company can be
lost
4. Strikers receive no benefits and health and welfare
insurance is no longer available through the
Company.
5 Strikers cannot obtain unemployment insurance
benefits.
I do not find a promise or threat in any of the above
statements On the contrary, I find that the statements are
,protected by Section 8(c) of the Act Accordingly, I shall
recommend dismissal of this allegation
"Cox, Some Aspects of the Labor Management Relations Act, 61
Harvard Law Review , 274, 320
"87 NLRB 341
"Resp Exh 2, article XV, section 6.
"Graham credibly testified concerning the February 25, 1969,
negotiation session as follows:
We discussed the question of stewards, and the Company' s position was
they would deal only with the representative of the International Union
So Mr. Martin asked Mr. White, "Well, what if we appointed an
employee out of the bargaining unit to represent the International
Union, would you then recognize and deal with them ?" and the
Company's position as stated by Mr White, "No, we would not If you
took them out of the plant and gave them a year's leave of absence, we
would then But otherwise, no "
"International Ladies' Garment Workers' Union, 274 F 2d 376, 378
(C A 3).
"G C. Exh 4.
"Emphasis in original
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. Respondent's Good- Faith Bargaining
At the conclusion of the evidentiary presentation by all
parties, the undersigned in open court and in the presence
of all counsel, stated that the General Counsel's complaint
failed to allege a general refusal to bargain but seemed to
rely only on the specific allegations in the complaint as
constituting a refusal to bargain in those respects. I put
the parties on notice that I would be inclined to look with
favor on a motion by the General Counsel to amend the
complaint to allege an overall failure to bargain in good
faith as I felt the issue was fully litigated 28
The General Counsel has not amended this complaint
but argues in his brief that "throughout the entire course
of bargaining Respondent manifested no evidence that it
was motivated by good faith." 29 In view of this argument,
my finding that the matter was fully litigated, and the
policy of giving liberal construction to pleadings in the
Federal Courts, it is my opinion that a finding in this
regard is warranted. Indeed, a failure to discuss and make
findings on the entire course of collective bargaining
followed by Respondent in this case would be a disservice
to the parties in that future bargaining would be hampered
by the absence of guide lines
Basically, the issue presented under this heading is
whether Respondent engaged in mere surface and
colorable bargaining contrary to its obligation to meet and
discuss the bargainable issues in good faith and with a
sincere willingness to reach a mutually satisfactory
agreement. As a general rule, in arriving at a decision
whether Respondent met the broad requirements of "good
faith," it is essential to explore Respondent's "state of
mind" as exemplified by the totality of its conduct, rather
than to fractionalize the whole into single events.
However, individual events frequently are of such
significance that they may afford a penetrating insight
into the state of mind of a part to negotiations Stated in
other terms, certain indicia or events have a direct nexus
and are peculiar to a determination whether a party is
bargaining in good faith. While the presence of a single or
even several of such criteria cannot, under all
circumstances, warrant a conclusion that a party has not
acted in good faith, particular indicia or events may be so
revealing that they need not be present in numerical
abundance to persuade one that there has been a failure to
fairly meet the statutory obligation of bargaining in good
faith.
In the earlier sections of this Decision, I have found
that Respondent's conduct fostered conditions inimical to
good faith bargaining in that it rejected the statutory role
of the Union by: (1) announcing to employees and failing
to adequately retract an assertion that the Union
represented only its members, (2) unilaterally terminating
its annual bonus on the ground that it was discretionary
and (3) adamantly insisting that employees themselves
without an authorized union representative present,
process, and adjust grievances in the early stages. I believe
that the foregoing incidents constitute a background which
casts an illuminating light on Respondent's state of mind
and by themselves would warrant a conclusion that
Respondent was not bargaining in good faith However,
an examination of Respondent's proposals and
counterproposals to the Union's offer and the actual
"These statements were made in an off-the- record discussion after all
parties had rested
"Of course the burden is on the General Counsel to show lack of good
faith rather than on Respondent to show good faith
negotiations concerning these matters sheds additional
light on this question.
Having in mind the Supreme Court's admonition, as
quoted above, in American Insurance Company, supra,
and in consideration of the Supreme Court's further guide
as laid down in Reed and Prince, supra, I am convinced
that Respondent's adamant insistence on its proposals,
when viewed in totality, and its rejection of the many
reasonable demands advanced by the Union disclose that
Respondent sought to avoid rather than to reach an
agreement.
Kenneth R White, Respondent's chief negotiator,
testified that at the first negotiation session on October 7,
1968, it received the Union's proposals" and that they
went through the proposals for clarification. Charles A.
Graham, the Union's International Representative and
chief negotiator, and White agreed that this meeting was
primarily for "getting acquainted." At the second
negotiation session, White testified that he handed three
typewritten proposals to Graham, and stated "the
management rights clause, the no-strike; no-lockout clause
were `musts', as far as the Company was concerned "
White then testified that he also presented Graham, "the
union security clause, which was an open shop clause, and
to paraphrase my remarks, when I handed it to him, I
said, `I imagine you cannot accept this.' " According to
White, Graham glanced at it and said, "Yes, that's
correct. We must have a union shop clause." Graham, on
the other hand, testified that the second meeting, held in
White's office, was attended only by Graham and White;
that White presented him with three Company proposals
Graham's testimony as to what occurred when he was
handed the proposals was as follows:
He [White] stated, "I know you will not, or cannot" -
I don't recall, exactly which term he used He knew we
would not or couldn't agree to those. And I stated as I
looked through them very briefly, because they were
short proposals, I agreed with him
The only disagreement in the testimony of White and
Graham in the foregoing concerns the fact whether
White's comment [to the effect that Graham could not
accept] concerned all three proposals, as Graham testified,
or only the company's proposal concerning union
membership " I credit Graham's version. Graham on the
whole impressed me as a witness testifying to the truth as
he remembered it and stating that he was uncertain when
he could not completely recall the exact language or event.
White, in contrast on several occasions, attempted to offer
conclusionary testimony and consciously tried to improve
Respondent's legal position by stretching his testimony."
'°G C Exh 5
"See Article 2 -- Union membership Resp Exh 2 This exhibit
constitutes Respondent ' s contract proposal presented to the Union on
December 6, 1968 1 assume in accordance with White's testimony, that
this Article was identical to that contained in his original typewritten
proposal of October 21, 1968, and that the handwritten portion was added
after December 6, 1968
"Essentially, I base my credibility determinations on demeanor in
general However , at least two instances of White's propensities are
illustrative ( 1) his erroneous but conclusionary testimony that the Union
had walked out on the mediator on February 25, 1969, (2) his reluctant
admission that the mediator had stated on February 25, that an impasse
had been reached and (3) his repeated reiteration and attempts to isolate
the Union's demand for a union shop clause as the cause of any impasse
without regard to the overall context of Respondent's unfair labor practices
and its contract proposals
LEE DEANE PRODUCTS, INC. 1055
We now turn to Respondent's counterproposals. I
believe it is unnecessary to indulge in a detailed analysis
of each of the Respondent's propositions. It seems
sufficient for the purpose of this Decision to refer to some
of them quite briefly
Respondent's proposal with regard to union
membership" show that Respondent sought to
circumscribe and limit the Union's right to "prescribe its
own rules with respect to the acquisition or retention of
membership "3° Respondent's proposals in ARTICLE III
- Management, Section I, may be described as a broad
management prerogative clause which, of course, does not
by itself indicate lack of good faith. Section 2 of this
proposed Article delegates to management the right to
change rules at any time subject only to a test of
reasonableness Again, while not subject to an
interpretation that this is indicative of bad faith,
nevertheless, both of these sections must be considered in
the light of Respondent's overall attitude The no
strike-no lockout proposal of Respondent" would permit
discharge of any employee participating in concerted
activity of any kind, even arising from Respondent's
unfair labor practices Indeed, under this section, the
grievance machinery can be invoked only on the question
whether or not an employee "engaged, participated in, or
encouraged" such activity
The grievance procedure proposed by Respondent3°
restricts initiation of grievances to employees and is
limited to grievances which arise under the terms of the
agreement. The employee must present it orally to the
foreman and if unresolved must within 3 days reduce it to
writing specifying the article and section of the agreement
alleged to be violated. Thereafter, if unresolved or the
answer by Respondent is unsatisfactory, the union then
may enter the picture and its representative must, within 3
days, confer with management If the matter continues to
be unresolved, an arbitrator may be chosen In turn, the
arbitrator must conclude the hearing in one day and is
limited to a decision on the question, "Did the company
violate the collective-bargaining agreement by its action . .
(issue then set forth) . " Other limitations on the
arbitrator's power are included in the proposals. Taken as
a whole, the grievance and arbitration procedure at the
very least is unduly restrictive.
Respondent's proposal of an across-the-board wage
increase of 5 cents per hour" would appear somewhat
niggardly in light of present day trends in wages and
salaries Nevertheless, Respondent's lack of generosity in
this area cannot be viewed as an unfair labor practice in
and of itself However, White testified that he had "more
money in his pocket" which he failed to offer to the
Union's negotiators at any time. It would seem, therefore,
that under the circumstances where negotiations were at
an impasse, followed by a strike, it was White's duty to
make the best offer in line with what he was authorized by
Rogers. Section 4 of the wage proposal reads as follows-
Merit increases may be given by the employer at any
time and conversely, such increases granted may be
deleted or removed at any time.
The Board has held that merit increases are proper
subjects for collective bargaining Respondent's proposal,
therefore, constitutes an extreme stricture on the Union's
right to negotiate in this area. The Respondent in effect
arrogated to itself the unilateral decision on wages to be
paid employees, narrowing the Union's participation to
minimum wages
At a later date, Respondent added to its proposals,
"Appendix B, Rules and Regulations of Personal
Conduct " These rules, while quite reasonable in many
respects, do contain ambiguous and undefined terms, such
as "immoral or indecent language;" creating or
contributing to unsanitary conditions, horseplay or
boisterous conduct on company property; threatening,
intimidating or coercing fellow employees, inability to
cooperate and work amicably with fellow employees, and
others of a similar nature. Clearly, the rules mentioned
above are of such a nature that management could well
rid itself of any employee for any reason whatsoever
without recourse by the Union to the arbitration
machinery. It is clear that in a management decision that
a person spoke "indecently," was unable to work
"amicably" with fellow employees, engaged in
"horseplay" or "coerced" or "intimidated" fellow
employees, etc., would not violate the terms of the
agreement, especially when the arbitrator was precluded
under the terms of the arbitration proposal from
substituting his "discretion" for management's
Under the above circumstances, I can only find that the
Respondent exhibited an attitude of bad faith and lack of
sincerity or desire to reach an agreement, thus failing in
its duty to bargain in good faith, as imposed by Section
8(a)(5) of the Act. From the inception of its negotiation
with the Union, Respondent was firmly entrenched in its
belief that it had the right to retain unilateral control over
such basic subjects as wages and hours. This is
exemplified by its unilateral termination on the annual
bonus and its insistence that wages above the minimum
remain the prerogative of the company. I have also
alluded above to various proposals of the company, which
by themselves, do not constitute violations of the Act.
However, these are circumstances which may be
considered by the Board in determining whether a party
has bargained in good faith."
I am acutely aware that the Board has neither the
power nor the authority to compel concessions or
otherwise sit in judgment upon the substantive terms of
collective-bargaining agreements. However, the following
from Reed & Prince Manufacturing Company seems
appropriate:78
[I]t seems clear that if the Board is not to be blinded
by empty talk and by the mere surface motions of
collective bargaining, it must take some cognizance of
the reasonableness of the positions taken by the
employer in the course of bargaining negotiations
The context of the course of bargaining when viewed with
Respondent's other conduct, convinces me that
Respondent went far beyond "hard" bargaining, but
presented a package which no self-respecting union could
accept and that this result was predictably foreseen by
Respondent's chief negotiator.
Recently, the Board had occasion to review quite
similar proposals of an employer relating to a detailed
management rights clause, grievances, arbitration
procedures and an unusually broad waiver clause." There
"Article 11 Resp Exh 2
"Section 8(b) of the Act
"Article IX, section I
"Article VIII, Resp Exh 2
"Article XI, Resp Exh 2
"American National Insurance Company . supra, Reed & Prince
Manufacturing Company, supra
"Supra, at 134
"Stuart Radiator Core Manufacturing Co, Inc 173 NLRB No 27
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board evaluated all of Respondent's proposal and
found that Respondent "was determined to force the
Union to abandon its right to be consulted regarding
practically all disputes that might arise during the terms
of the contract relating to terms and conditions of
employment; ► e , to waive its statutory right to bargain
collectively. Such proposals indicate more than hard
bargaining." I evaluate the proposals of Respondent in the
same vein
H The Strike of March 27, 1969
On March 27, 1969, the Union called a strike of the
employees of the Respondent . The strike was called
pursuant to employee meetings at which time the Union
was granted the right to call a strike when and if
necessary . The meetings took place about a week or two
prior to March 27 At these meetings , the various factors
- economical and noneconomical - were discussed, and
picketing commenced with the following sign : " Lee Deane
Products Company Employees on Strike - Unfair Labor
Practice Strike."
In view of my findings , above, that Respondent had
engaged in various unfair labor practices , I find that the
strike was an unfair labor practice strike from its
inception caused by and prolonged by Respondent's unfair
labor practices ." This strike was terminated on May 15,
1969, when the employees made through the Union an
unconditional offer to return to work and Respondent
rehired all employees who presented themselves for
employment . The evidence showed that but 31 of the
150-160 employees in the unit participated in the strike.
Possibly this is indicative of the eroding effect of
Respondent's unfair labor practices.
I Respondent's Motion for Trial Examiner to
Withdraw
The attorney for Respondent filed a request, dated July
2, 1969, together with a supporting affidavit, that the
undersigned Trial Examiner withdraw from the case on
the ground of personal bias pursuant to Section 102.37 of
the Board's rules and regulations." The above request was
supported by an affidavit from Kenneth R. White." On
July 14, 1969, the undersigned Trial Examiner denied
Respondent's motion by telegram."
Respondent's counsel relies upon an off-the-record
statement made by the Trial Examiner. Respondent's
counsel correctly states that the Trial Examiner's
statement was made on page 174 of the transcript. I might
further add that whatever remarks were made at this time
would be entered on page 174, line 11 At that point, it
should be noted the evidentiary presentation of the case
had been fully concluded and all parties had rested
Moreover, the statement was made in open court and in
the presence of all counsel without objection and without
a request that the statement be placed in the record. After
concluding his off-the-record statement, the undersigned
then stated on the record as follows:"
"The fact that there were unresolved economic issues between the parties
does not require a different conclusion West Coast Casket Company, 205
F 2d 902 (C A 9)
'This document ns entered as TX Exh I
"This document is entered as TX Exh 2
"This document is entered as TX Exh 3
"Tr p 174, 11 14-25, p 175, 11 1-14
In due time I will prepare and file with the Board
my decision of this proceeding.
A copy will be served upon each of the parties You
are reminded to refer to the statement of standard
procedures in formal hearings before the Board with
respect to the filing of briefs and proposed findings for
my consideration , and now the procedures afforded
belore the board after the issuance of the Trial
Examiner ' s decision.
Now, I want you to listen to this carefully . Now that
all the evidence is in, you have a better opportunity to
assess your chances as to the outcome of the issues than
you had at the outset of the hearing, and you have a
clear indication from my off- the-record discussion as to
how I feel about this case
That is my impression of the matter , in this case, and
as I stated during my off-the-record discussion , it is my
impression - and I am open to education - and I
expect the briefs to get into the matters I have
mentioned in my off-the-record discussion "
Now, all parties should carefully weigh the issues,
and decide whether or not a more satisfactory clause
settlement may be arranged now or at any time before
I reach my decision.
I will allow until the close of business July 10th for
the filing of briefs and proposed findings
There being nothing further, the hearing is now
closed
I am not satisfied that the affidavits of Respondent's
counsel and White accurately and fairly reflect my
off-the-record remarks, however, I do not rely upon my
dismissal of the motion upon this ground nor will I
attempt to recall what I did say It is my considered
opinion that at the conclusion of the evidence in a case, I
am performing a helpful service to the parties by
indicating to them the impressions I have received from
the evidence and asking them to emphasize those points in
their briefs. As the record discloses , I did state that these
were my impressions and that I was open to education.
Accordingly , whatever was said , even though possibly
factually or legally in error , no personal bias or prejudice
is demonstrated
With regard to the statement made by Respondent's
counsel and White , that after the hearing was closed, the
Trial Examiner stated that he believed in collective
bargaining, I can only quote from a decision by the
United States Court of Appeals for the District of
Columbia entitled Liberty Coach Company, Inc, decided
July 22, 1969, where the Court stated:
"On the other hand , the Board has the duty of
implementing the statutory policy in favor of collective
bargaining ," and then added in note (15) "some courts
forget that Congress has not directed the Board to be
neutral on the question of collective bargaining, but on
the contrary stated:
It is declared to be the policy of the United States to
eliminate the causes of certain substantial obstructions
to the free flow of commerce and to mitigate and
eliminate these obstructions when they have occurred
by encouraging the practice and procedure of collective
bargaining . . . "
Accordingly, I reaffirm the denial of the motion to
disqualify myself.
"Emphasis supplied.
LEE DEANE PRODUCTS, INC. 1057
Upon the basis of the foregoing facts and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Lee Deane Products, Inc., Respondent herein, is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2. International Union, Allied Industrial Workers of
America, AFL-CIO, the Union herein, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees, leadmen,
inspectors, janitors, truckdrivers, and shipping and
receiving employees working at the Respondent's place of
business located at 15511 South Carmenita Avenue, Santa
Fe Springs, California; excluding office clerical employees,
technical employees, professional employees, guards,
watchmen and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. On July 16, 1968, pursuant to a Board conducted
election a majority of Respondent's employees in the
appropriate unit described above designated and selected
the Union as their collective bargaining representative.
5. At all times since September 20, 1968, and
continuing to date, the Union has been the certified
representative for the purposes of collective bargaining of
a majority of the employees described in paragraph 3
above, and, by virtue of Section 9(a) of the Act, has been,
and is now, the exclusive representative of all the
employees in said unit for the purposes of collective
bargaining with Respondent with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
6 By notifying its employees on September 19, 1968,
that the Union had won only the right to represent their
members in bargaining for a contract, Respondent
violated Section 8(a)(5) and 8(a)(1) of the Act.
7. By refusing to recognize and deal with stewards
designated by the Union, Respondent has violated Section
8(a)(5) and 8(a)(1) of the Act
8. By unilaterally terminating its annual Christmas
bonus, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(5) and 8(a)(1) of the
Act.
9. By failing to bargain in good faith on and after
October 7, 1968, with the Union, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
10. The strike of employees in the appropriate unit
described above commencing March 27, 1969, and
terminating on May 15, 1969, was caused and prolonged
in substantial part by Respondent's unfair labor practices
and was an unfair labor practice strike from its inception
11. Respondent has not threatened to deprive striking
employees of their accumulated seniority.
12. Allegations of the complaint not found herein to
constitute unfair labor practices are herewith dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON
COMMERCE
The activities of Respondent set forth in section IV,
above, occurring in connection with the operations of
Respondent set forth in section I, above, have a close,
intimate, and substantial 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 thereof
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
As found, above, Respondent commencing September
19, 1968, engaged in various acts and conduct constituting
refusals to bargain. Respondent can hardly be said to have
met its obligation under the Act to bargain in good faith
from October 7, 1968, when the first formal
collective-bargaining negotiation session took place. While
thereafter it continued to meet with the Union in twelve
other bargaining sessions, Respondent's acts of unlawful
conduct before the first negotiation session and continuing
thereafter throughout the other bargaining sessions,
created an atmosphere not conducive to arriving at an
amicable agreement. Indeed it would be an anomaly to
conclude that despite Respondent's continuing unlawful
conduct before certification and after actual bargaining
commenced that it nevertheless bargained in good faith
with the Union. Such a result under the circumstances
would be a contradiction in terms and I do not find that
to be the case. Rather, in the light of my findings above, I
conclude that the Respondent's bargaining commencing
on October 7, 1968, were a sham and lacking in good
faith 46
Having found that Respondent unilaterally cancelled its
annual Christmas bonus in violation of Section 8(a)(5) and
(1), 1 shall recommend that it pay to employees in the
appropriate unit found, above, a sum of money equal to
that it would have paid to said employees but for their
selection of the Union as their bargaining representative,
plus 6 percent interest in the manner set forth in Isis
Plumbing & Heating Co, 138 NLRB 716. Although there
is evidence in the record that the annual bonus was paid
upon a formula consisting of wages and length of service,
no precise figures were submitted. Accordingly, the
amounts due each employee can be best determined in the
compliance stage of these proceedings taking into
consideration all pertinent financial records of
Respondent."
In view of the foregoing, I shall recommend that the
certification period be extended to begin on the day
Respondent ceases its unfair labor practices and
commences to bargain in good faith with the Union, upon
request, as the certified represented of its employees in the
appropriate unit." Because of the nature and extent of the
unfair labor practices found herein and because these
violations manifest an attitude of hostility directed-toward
the very basic purposes of the Act, and further in order to
prevent the commission of other unfair labor practices by
Respondent, I shall recommend a broad cease and desist
order."
"May Aluminum , Inc, 398 F 2d 47, 51 (C A 5), where Judge Hanay
speaking for the Court said, "the conclusion that an employer failed to
bargain in good faith is judicially recognizable where there is objective
evidence in the record of his strong opposition to Union representation and
this hostility is manifested by unfair labor practices before and during
negotiation "
"Mtsstssippt Steel Corp. 169 NLRB No 96
"Brooksv N L R B, 348 U S 96
"Barnwell Garment Company, Inc, 164 NLRB No 8, Entwistle Mfg
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of facts and conclusions of
Co. I20F2d532(CA 4)
law and upon the entire record in the case, I recommend,
pursuant to Section 10(c) of the Act , the following
[Recommended Order omitted from publication.]