LeRoy Machine Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1431 (N.L.R.B. 1964)

LEROY MACHINE CO., INC. 1431°
Nevertheless the Trial Examiner is not persuaded that a "remedial collective bar
gaining order" should be recommended here foorr^^ the reasons set out in the Inter-
mediate Report , which quoted from Crown '±ellerbach Corporation , 95 NLRB 753.
If the Board wishes to reverse its clearly stated policy in the cited case of not
"policing collective-bargaining agreements ," where "the parties have failed to utilize
the contractual procedures established for bargaining concerning the interpretation
and administration of their contract ,". and where there is a "background of peaceful
and what appears to be a wholly salutary employer-employee relationship," then
such reversal is within the province of the Board, not of the Trial Examiner.
RECOMMENDATION
Upon the foregoing findings of fact, upon the entire record in the case, and in
accordance with Board policy quoted above, the Trial Examiner again recommends
that the complaint be dismissed in its entirety.
LeRoy Machine Co ., Inc. and Local 481, International Union,
United Automobile , Aerospace and Agricultural Implement
Workers of America , AFL-CIO. Case No. 3-CA-5077. June 30,
1964
DECISION AND ORDER
On December 4, 1963, Trial Examiner Joseph I. Nachman issued
his Decision in the above-entitled proceeding, finding that the Re-
.spondent 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 Ex-
aminer's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief 1 in support thereof.
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 affirmedz. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations with the following addi-
tions and modifications.
1. We find, in agreement with the Trial Examiner, for the reasons
:set forth in his Decision, that the Respondent violated Section 8(a)
(5) of the Act by its refusal to bargain with the Union with respect to
rates of pay for new jobs, a mandatory subject . of collective .
bargaining?
1 The Respondent's request for oral argument is hereby denied, as the record, including
the Respondent's exceptions and brief, adequately presents the issues and the positions of
the parties.
In its brief, the Respondent contends that the subject of rates of pay for new jobs
involves a matter of contract interpretation which should be deferred to an arbitration
in accord with the arbitration provisions in the contract. The Respondent, however, re-
fused on three separate occasions to process grievances protesting its unilateral fixing of
the rate on a new job. Apart from any other considerations, therefore, we find that
where, as here, the Respondent has itself frustrated the arbitral process, it has no stand-
ing to urge that the Board should defer the issues to arbitration. See California Port-
land Cement Company, 101 NLRB 1436, 1440.
147 NLRB No. 140.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner found a further violation of Section 8(a)
(5) in the Respondent's refusal to bargain about its requirement that.
employees with bad absentee records submit to a. physical examination'
by a physician of their choice at the Respondent's expense, subject
to disciplinary action if they refused. While we agree with the Trial.
Examiner that this is likewise a mandatory subject of collective bar-
gaining, we are unable to find, in the light of the management preroga-
tive clause of the contract herein, that this requirement constitutes a
violation of the Act.
The management prerogative clause of the current collective-
bargaining agreement between the Respondent and the Union pro-
vides that : "The Company retains the sole right to . . . hire, layoff,
assign, transfer, promote 'and determine the quali flcatioms of em-
ployees; subject only to such regulations governing the exercise of
these rights as are expressly provided in this Agreement." [Em-
phasis supplied.] The Respondent contends in relevant part that,
even assuming that the above requirement was a mandatory subject of
collective bargaining, the Union waived its right to bargain about this
matter by virtue of the management prerogative clause .3 In our
opinion, the language conferring on the Respondent the right to deter-
mine the "qualifications of employees," when given its plain meaning
did encompass such physical examinations and therefore removed that
subject from the scope of collective bargaining during the term of the
contract. We shall therefore dismiss that portion of the complaint
alleging that the Respondent in this regard violated Section 8(a) (5)
of the Act. '
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner with the following modifications, and
orders that the Respondent, its officers, agents, successors, and as-
signs, shall :
1. Delete the first paragraph of the Recommended Order.
2. Substitute for paragraph 1(a) of the Recommended Order the
following paragraph :
"(a) Refusing to bargain collectively with Local 481, International
Union, United Automobile,, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, as the exclusive collective-bargain-
ing representative of its employees in a unit composed of all produc-
a See Shell Oil Company, Incorporated, et al. , 77 NLRB 1306 (waiver of right to,
strike ) ; Tidewater Associated Oil Company , 85 NLRB 1096, 1098 ( waiver of right to bar-
gain concerning a pension ' plan ) ; Shell Oil Company and Shell Chemical Company, 93
NLRB 161, 164 (waiver of right to negotiate grievances ) ; E. W. Scripps Company,.
94 NLRB 227, 228 (waiver of right to bargain concerning merit increases).
LEROY MACHINE CO., INC. 1433
tion and maintenance employees employed at its LeRoy, New York,
plant, 'exclusive of clerical employees, guards, and supervisors as de-
fined in the Act, with respect to the fixing of rates for new jobs."
3. Substitute for paragraph 2(a) of the Recommended Order the
following paragraph :
"(a) Upon request, bargain collectively with Local 481, Interna-
tional Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America, AFL-CIO, as the exclusive collective-
bargaining representative of all the employees in the aforesaid unit,
with respect to the fixing of rates for new jobs, and, if an understand-
ing is reached, embody such understanding in a signed agreement."
4. Substitute for the first indented paragraph of the Notice the
following paragraph :
WE WILL NOT refuse to bargain collectively with Local 481,
International Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, AFL-CIO, as the ex-
clusive collective-bargaining representative of our employees in a
unit composed of all the production and maintenance employees
employed at our LeRoy, New York, plant, exclusive of clerical
employees, guards, and supervisors, as defined in the Act, with
respect to the fixing of rates for new jobs.
5. Substitute for the last indented paragraph of the Notice the fol-
lowing paragraph :
WE WILL, upon request, bargain collectively with Local 481,
International Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, AFL-CIO, as the exclusive
collective-bargaining representative of all the employees in the
aforesaid unit, with respect to the fixing of rates for new jobs, and,
if an understanding is reached, embody such understanding in a
signed agreement.
MEMBER FANNING, concurring in part and dissenting in part:
I join my colleagues in finding, for the reasons set forth in the Trial
Examiner's Decision, that the Respondent violated Section 8(a) (5)
of the Actby its refusal to bargain with the Union with respect to rates
of pay for new jobs, a mandatory subject of bargaining.
I also agree with my colleagues that the Trial Examiner correctly
concluded that the requirement that employees with bad absentee
records submit to a physical examination by a physician of their choice
at Respondent's expense, subject to disciplinary action if they refused,
is a mandatory subject of bargaining. However, I cannot agree with
their conclusion that the management prerogative clause of the exist-
ing collective-bargaining agreement between Respondent and the Un-
ion removed this subject from the area of collective bargaining simply
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because it gave Respondent "the sole right to . . . determine the quali-
fication of employees ...." The term "qualifications of employees"
can, of course, be read as including employees' physical condition, but
I cannot agree that that is the "plain meaning" of the words, especially
in view of the fact that the contracting parties have imposed upon
certain "qualified" employees the necessity of undergoing X-ray, phys-
ical, and eye examinations in the interest of plant safety. A more
restrictive reading of the phrase is'certainly possible.
In view of the foregoing and in view of the fact that the issue of
physical examinations for current employees was not discussed at all
in connection with the management prerogative clause, and there was,
perforce, no exploration of the issue or conscious yielding by the Union
of its right to bargain on the matter, I find, in accordance with well
established principles,' that the Union has not clearly and unequiv-
ocally contracted away or otherwise waived its statutory right to be
consulted and to bargain about, the requirement that employees un-
dergo physical examinations.
Accordingly, I find, in agreement with the Trial Examiner, that
Respondent violated Section 8(a) (5) by unilaterally imposing the
requirement that current employees undergo physical examainations,
the results of which might well affect their tenure of employment.
MEMBER BROWN, concurring and dissenting in part:
This case involves the two types of situations of which I spoke in
Adams Dairy 5 and which, in my opinion, warrant differing treat-
ment respecting asserted arbitration contentions. The Supreme Court
in the Elgin 6 case, explicated the fundamental conceptual difference-
between those two aspects of an existing labor-management relation-
ship. "The difference," said the Court, "between disputes over griev-
ances and disputes concerning the making of collective agreements is
traditional . . . ." (325 U.S. at 722). Continuing, the Court said
(325 U.S. at 723):
The first,relates to disputes over the formation of collective
agreements or efforts to secure them. They arise where there is
no such agreement or where it is sought to change the terms of
one, and therefore the issue is not whether an existing agreement
controls the controversy. They look to the acquisition of rights
for the future, not to assertion of rights claimed to have vested
in the past.
4 The Jacobs Manufacturing Company, 94 NLRB 1214, enfd. 196 F . 2d 680 (C.A. 2) ;
The Press Company, Incorporated , 121 NLRB 976; Proctor Menufactnrsng Corporations
131 NLRB 1166.
6 Cloverleaf Division of Adams Dairy Co., 147 NLRB No. 133.
6 Elgin, Joliet & Eastern Railway Co . v. Burley et al., 325 U S . 711 ; 327 U.S. 661.
LEROY MACHINE CO., INC. 1435
The second class, however, contemplates the existence of a
collective agreement already concluded or, at any rate, a situation
in which no effort is made to bring about a formal change in terms
or to create a new one. The dispute relates either to the meaning
or proper application of a particular provision with reference to
a specific situation or to an omitted case. In the latter event the
claim is founded upon some incident of the employment relation,
or asserted one, independent of those covered by the collective
agreement; e.g., claims on account of personal injuries. In either
case the claim is to rights accrued, not merely to have new ones
created for the future.
The Respondent, in the first situation involved here, failed to bar-
gain concerning rates on new jobs. For the reasons set forth in my
concurring opinion in the Adams Dairy case, I agree with my col-
leagues that this is a matter for which a bargaining order-not a defer-
ral for arbitration, as Respondent contends-is appropriate. The
other allegation concerns Respondent's requirement that certain -em=
ployees take physical examinations. However, unlike the matter of
new job rates, the operative contract does deal with the subject of
employee qualifications. The threshold question as to this dispute is
thus one of interpreting the parties' own agreement which, Respond-
ent contends, should be resolved and which it is willing to have re-
solved through the arbitration machinery of the contract voluntarily
established by the parties. I agree in these circumstances, and I would
await the arbitrator's ruling before resolving the merits of the "physi-
cal examination" portion of this case. Cf. Dub o Manufacturing
Company, 142 NLRB 431. I therefore do not join my colleagues 'in
dismissing this allegation at this time.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter heard before Trial Examiner Joseph I. Nachman at Rochester, New
York, on September 16,1 involves allegations that LeRoy Machine Co., Inc. (herein
called Respondent or Company), violated Section 8(a)(5) and ( 1) of the National
Labor Relations Act, as amended ( herein called the Act),2 by refusing to bargain
with Local 481, International Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, AFL-CIO (herein called the Union), the
duly certified and recognized representative of Respondent 's employees , with respect
to (1) rates of pay for new jobs, and (2) Respondent 's request that certain em-
ployees submit to a physical examination . With respect to (1) the defense is that
Respondent has discharged its bargaining obligation , and with respect to (2) its
defense is that Respondent's request that certain employees submit to physical ex-
aminations is not a bargainable issue, but if bargainable, Respondent has discharged
its obligation . At the hearing, the parties were represented by counsel, and were
afforded full opportunity to submit evidence , examine and cross-examine witnesses,
and to argue orally on the record. The General Counsel presented oral argument,
and Respondent filed a brief, all of which has been duly considered.
' Unless otherwise noted all dates mentioned herein are in 1963.
The charge was filed and served May 15 ; complaint issued July 26.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, including my observation of the witnesses,
I make the following:
FINDINGS OF FACTS
1. THE UNFAIR LABOR PRACTICE INVOLVED
A. Background
For some years Federal Labor Union No. 24283 was recognized, and since
April 3, 1947, and until its affiliation with the Charging Union, as hereinafter set
forth, had been certified as the collective-bargaining representative of the employees
in the aforementioned unit, and from time to time collective-bargaining agreements
between said parties were executed. In January 1958, Local 24283, pursuant to its
contract, presented Respondent with a grievance stating that Respondent was fixing
rates of pay on new jobs without reaching agreement with that local as to the ap-
propriate rate of pay for such jobs. Respondent replied that the establishment of
new jobs and fixing the pay rates therefor was solely the prerogative of the Company
and that it never agreed not to exercise this prerogative without prior consultation
with the local. The grievance was then withdrawn by the local.
In April 1959, in accordance with the procedures established by the AFL-CIO,
the membership of Local 24283 voted to transfer affiliation to the Charging Union
and, pursuant to a stipulation of the parties, the Regional Director for the Third
Region of the Board amended the certification he had previously issued to Local
24283, to show the Union as certified representative of the employees involved. In
June 1959, the Union negotiated its first contract with Respondent. This contract
expired May 31, 1962, and was superseded by a new agreement executed June 7,
.1962, which is currently in effect.4 The first contract negotiated by the Union con-
tained a grievance procedure provision, and in addition thereto the current contract
contains a provision for the establishment of "Production Standard," and a "Manage-
ment Prerogative" clause .5
B. Current facts
1. Re physical examinations
In mid-January 1963, Respondent hand delivered to 19 of approximately 170 em-
ployees in the unit a letter stating in substance that the employee's attendance record
indicated an excessive amount of tardiness and absenteeism, and that Respondent
wished to ascertain whether this was occasioned by the employee's physical condi-
tion. The employee was asked to take the letter and an enclosed sheet to a doctor
of his choice who would, at the Company's expense, examine the employee and
report the result to Respondents On March 1, 1963, Respondent sent a followup
3 The -cojnplaint alleges and the answer admits, facts which establish that Respondent
Is engaged in commerce, and that the Union is a labor organization. I so find. The com-
plaint also alleges, the answer admits, and I find that all production and maintenance
employees of Respondent, employed at its LeRoy, New York, plant, exclusive of clerical
employees, guards, and supervisors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining.
4 The latest contract is effective from June 1, 1962, to May 31, 1965
5 The management prerogative clause [article IV, page 4, General Counsel's Exhibit
No. 2], provides as follows:
The Company retains the sole right to manage its business and direct the working
force, including the rights to decide the number and location of plants . . . ; to de-
termine whether and to what extent the work required in its business shall be per-
formed by employees covered by this agreement, . . . Including the sole right to dis-
cipline, suspend and discharge employees for cause ; to hire, lay off, assign, transfer,
promote and determine the qualifications of employees ; . . . subject only to such
regulations governing the exercise of these rights as are expressly provided in this
Agreement.
The above rights of management are not all inclusive, but indicate the type of
matters or rights which belong to and are inherent to management. Any of the
rights, powers, and authority the Company had prior to entering this collective
bargaining are retained by the Company, except as expressly and specifically abridged,
delegated, granted, or modified by this agreement.
The selection of the 19 employees *to receive the letter was on the basis that their
individual absentee and tardy rate exceeded 124 percent, which Respondent determined,
was the average in its plant.
LEROY MACHINE CO., INC. 1437
letter to four employees who had not complied with the request in the January
letter. The March 1 letter closed with the statement that failure to. arrange for the
physical examination by March 15 would result in disciplinary action. There is
no evidence that Respondent has required any of its employees to take such examina-
tion on any prior occasions. Respondent concedes that its purpose in requesting
the physical examinations was to enable it to determine whether a man's health
was such as to necessitate his transfer to another job, to another shift, or perhaps
termination.
On March 14, 1963, a committee from the Union, together with UAW Interna-
tional Representative Newton, met with Plant Manager Faucitt and Personnel Man-
ager Bald, to discuss Respondent's request that the 19 employees submit to physical
examinations. Newton asked if the taking of the examination was a condition of
employment of the 19 men. Faucitt, for the Company, replied that as to these 19,
or any others who might thereafter be asked to submit to such examination, the
results of the examination would be a factor in their continued employment with
the Company. Newton then asked that Respondent bargain with the Union regard-
ing "the rules and regulations of how, when, why [and] what physical examinations
will be required." Respondent refused, taking the position that it was the Com-
pany's prerogative to require such examinations . At Newton's request Faucitt re-
duced to writing his refusal to discuss the subject with the Union.7 There has been
no further discussion of the subject between the parties. The evidence shows that
all 19 employees submitted to the examination, but there is no evidence that Re-
spondent has taken any action with regard thereto.
2. Rates for new jobs
In April 1963 Union President Darby, Chief Steward Cravatta, and Union Vice
President Di Santo met with officials of Respondent . The meeting had been re-
quested by Darby to protest the Company's unilateral fixing of a wage rate on a
new job in the plant-the Mack truck job-which the Union regarded as lower than
the rate being paid for comparable work in Respondent's plant.8 Company Vice
President Robinson took the position that under the management prerogative clause
in the contract, Respondent was entitled to unilaterally fix any rate it pleased for a
new job .9 No solution satisfactory to the union representatives having been reached
at this meeting, a future meeting at which International Representative Newton
could be present was arranged . At the latter meeting held early in May, Newton
urged that as the collective-bargaining representative , Respondent was obligated to
bargain with the Union regarding the proper rate of pay for new jobs. Respondent
again insisted that the management prerogative clause reserved unto management the
right to fix the rates on new jobs unilaterally , and that it would not bargain with the
Union on that subject. The meeting concluded on that note.
In the interval between April and May meetings when the Union sought to bar-
gain for rates for new jobs , three grievances were filed protesting Respondent's ac-
tion in that regard. According to the uncontroverted testimony of International
Representative Newton, the first grievance which was filed by the Union, Respond-
ent declined to process because it presented a policy issue not subject to the grievance
procedure provided in the contract; the grievance was then refiled by an individual,
and the Company refused to process it on the ground that it presented the same
issue as the previous one; the third filing was by an individual assigned to the par-
ticular job, and Respondent declined to process it on the ground that the time
limitation for such a grievance had expired.
It is undisputed that neither in the 1959 nor in the 1962 contract negotiations
was the subject of rates for new jobs raised or discussed by either party.'° It is also
undisputed that the management prerogative provision which became a part of the
contract in 1962 was proposed by Respondent and, while initially opposed, was
ultimately agreed to by the Union.
4 The findings in this section are based on the testimony of Newton and Union President
Darby which, on this aspect of the case is for the most part, in accord with the testimony
of Plant Manager Faucitt and Company Vice President Robinson.
$A new job is one that had not been in the plant before, or which required such change
in an existing item that added operations or new equipment necessary for its production.
9 This reference was to the contract provision set out in footnote 5, supra.
10 New jobs were discussed at least during the 1962 negotiations , but such discussion
related only to production standards , and resulted in article XXI of the current contract.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The number of new jobs in the plant in the past 5 or 6 years is not entirely clear
from the record . Company Vice President Robinson testified that since 1958 there
have been 80 new jobs ," and that except for the grievance filed and withdrawn in
1958 , and the discussions regarding the Mack truck job in the spring of 1963, Re-
spondent, without protest from the Union or its predecessor , Local 24283, has
unilaterally fixed the rates on all new jobs. Union President Darby placed the
number of new jobs during the period mentioned as five or six , but he did not elabo-
rate on whether he, like Robinson , regarded each operation as a new job. Darby
admitted that except for the 1958 grievance and the discussions regarding the Mack
truck job , the Union had not protested any new job rate fixed unilaterally by Re-
spondent. Darby's explanation for this was that the rate fixed by Respondent was not
regarded by the Union as out of line, hence no protest was necessary . Darby also
admitted that during the 1962 negotiations , wage rates were incorporated into the
contract for jobs which came into the plant during the prior contract ( 1959-62) as
new jobs.12
3. Concluding findings
Physical Examinations as Bargainable Issue
Section 8 ( a)(5) of the Act imposes upon an employer the obligation to bargain
collectively with the representatives of his employees , and Section 8(d) defines the
term "bargain collectively ," as imposing the obligation:
. .. to meet at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employment, or the negotia-
tion of an agreement, or any question arising thereunder . . . . [Emphasis
supplied. ]
Respondent contends that requiring its employees to submit to a physical examina-
tion is not a "term or condition of employment," but rather a "prerequisite of
employment," and, so Respondent argues, as the establishment of employee quali-
fications "is a basic management decision not subject to collective bargaining,"
an employer may from time to time, without consultation with the collective-
bargaining representative, require the employee to submit to a physical examination
to demonstrate that he still possesses the "underlying prerequisites of employment."
Respondent concedes in its brief, however, that "in general, any proposal concern-
ing an employee in current employment is a subject of mandatory bargaining."
[Emphasis supplied.]
The parties have not cited, and my independent research has failed to reveal,
any Board decision dealing with the issue of examinations as a mandatory subject
of bargaining. By analogy, however, Board decisions holding other items to be
mandatory subjects of bargaining 13 would indicate that under the circumstances
of this case, the physical examinations that Respondent required is a mandatory
subject of collective bargaining.
Assuming, without deciding, that an employer may refuse to bargain with the
Union concerning his requirement that employees submit to a physical examination
for reasons unconnected with the employment status,14 in the instant case Re-
"It would appear that Robinson was speaking of new "operations." As be explained
it, if the production of a new part required 10 separate operations , he regard it as
10 new jobs.
' To the extent that the testimony of Robinson and Darby may be in conflict , I regard
resolution of that conflict unnecessary in view of my legal conclusions regarding this
aspect of the case.
14 The Board has held the following to constitute mandatory subjects of bargaining:
Health and accident insurance programs , W. W. Cross and Company, Inc., 77 NLRB
1162; pension plans , Inland Steel Company, 77 NLRB 1; working rules, Tower Hosiery
Mills, Inc ., 81 NLRB 658; service and price of meals provided at isolated lumber camps,
Weyerhaeuser Timber Company , 87 NLRB 672; recall and termination of employees laid
off because of plant shutdown , West Boylston Manufacturing Company of Alabama, 87
NLRB 808; employer ' s practice of making loans to employees repayable in small amounts,
Porto Rico Container Corporation , 89 NLRB 1570; decision to subcontract maintenance
work , Fibreboard Paper Products Corp ., 138 NLRB 550, enfd. sub nom . East Bay Union
of Machinists , Local 1304 , etc. v. N.L.R.B., 322 F. 2d 411 (C.A.D.C.) ; discount rates on
gas sold to employees for residential heating, Central Illinois Public Service Company,
139 NLRB 1407.
14 For example, where the examination is required solely for the benefit of the employee
and to enable the latter to obtain treatment , if necessary , with no report thereof made to
the employer and no change in the employment status can result.
LEROY MACHINE CO., INC. 1439
spondent admits that it required employees in "current employment status," under
threat of disciplinary action, to submit to physical examinations, and that its
purpose was to enable Respondent to determine whether the particular employee
should be moved from one job or shift to another or, perhaps, even terminated.
Thus the very job security of these employees may have been placed in jeopardy
by Respondent's request, and it clearly involved a term and condition of their
employment with respect to which the collective-bargaining representative is entitled
to be consulted.
This is not to say that an employer may not insist that employees submit to
physical examinations to demonstrate, as Respondent states it, that they continue to
possess the "underlying prerequisite of employment." It only means, in the absence
of a provision on the subject in the collective-bargaining agreement, or a waiver, the
employer must discuss the subject matter with the Union in good faith with a
sincere purpose of reaching some agreement. When that has been done the duty
to bargain collectively is discharged, for Section 8(d) provides that neither party
is compelled to agree to a proposal or to make concessions. And, after the duty
to bargain in good faith has been discharged, and no agreement results, the
employer may, within appropriate limits, act unilaterally.
Respondent's contention that its bargaining obligation has been fully complied
with, is without merit. This contention is based on the argument that by the nego-
tiations leading to the current contract, and by the contract itself, and assuming this
issue to be bargainable, the Union waived its rights in that regard. Respondent
concedes that the subject of physical examinations for employees was neither raised
nor discussed during the bargaining negotiations. There is no express provision in
the contract that the Union will not, during the term thereof, seek to bargain on
that subject. On such facts, Board law is clear that the Union has not waived its
right to request bargaining on the issue of physical examinations. See The Jacobs
Manufacturing Company, 94 NLRB 1214; Proctor Manufacturing Corporation, 131
NLRB 1166; The Press Company, Incorporated, 121 NLRB 976, which are cited and
discussed in greater detail in a subsequent section of this Decision.
Accordingly, I find and conclude that Respondent violated and continues to violate,
Section 8(a)(5) of the Act by its refusal to bargain with the Union with respect to
physical examinations to be taken by its employees.
Respondent's refusal to bargain with the Union with respect to the rates of pay
of new jobs is likewise violative of the Act. Respondent concedes, as it must, that
the appropriate rate of pay for a new job is a bargainable issue, but argues that it
has satisfied its bargaining obligation by reason of the current contract negotiated
and executed by the parties. More particularly, Respondent points out (1) that
for many years it unilaterally fixed and posted rates for new jobs; (2) the grievance
filed in 1958 was withdrawn when Respondent took the position that fixing rates
of pay for new jobs was a matter of management prerogative; 15 (3) that during
the 1959 and 1962 contract negotiations the matter of rates for new jobs was neither
raised nor discussed by anyone; (4) in the 1962 negotiations rates were agreed
upon and incorporated into the contract for new jobs which came into the plant after
the 1959 contract; (5) except for the 1958 grievance, above mentioned, Respondent
received no protest concerning its fixing of rate for new jobs unilaterally; and
(6) the management prerogative clause was made a part of the contract in 1962,
reserving to management all authority not "expressly and specifically" surrendered
by the contract. From all of this, Respondent argues, the Union waived its right
to require the Company to bargain with respect to this issue.
I am unable to agree with Respondent's contention. As the Board has frequently
held, the duty to bargain which the Act imposes on both employers and unions
is a continuing one, and the parties are at all times "obligated to discuss any
bargainable subject upon request unless [they] have reduced [their] agreement on
that subject to writing or unless [they] have agreed in writing not to bargain about
it during the term of the contract." (The Jacobs Manufacturing Company, 94
NLRB 1214, 2121. )15 It is, of course, true that a union may, by its conduct,
waive its right to request bargaining on a mandatory subject of bargaining, but
an employer violates Section 8(a)(5) if, during the contract term, he refuses to
bargain or takes unilateral action with respect to a particular subject, unless it can
be said from an evaluation of the prior negotiations that the matter was "fully dis-
15 The General Counsel argues that this grievance was filed by Local 24283, before it
affiliated with the Charging Union, and hence was not binding on the latter. My conclu-
sions on this aspect of the case make it unnecessary for me to pass on that contention.
11 Order enfd. 196 F. 2d 680 (C.A. 2).
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cussed or consciously explored" and that the Union "consciously yielded or clearly
and unmistakably waived its interest in the matter." (Proctor Manufacturing Cor-
poration, 131 NLRB 1166 , 1169. ) See also The Press Company , Incorporated,
121 NLRB 976 and the cases there cited.
The 1962 contract contains no express provision granting the Respondent the
right to fix rates on new jobs unilaterally , or binding the Union not to request
bargaining on that issue during the term of the contract . Nor does the evidence
establish that during the 1962 negotiations the parties "fully discussed or consciously
explored" that issue , and that the Union "consciously yielded or clearly and un-
mistakably waived" its interest therein . Indeed Respondent admits that the issue
was neither raised nor discussed by anyone during negotiations . Accordingly no
waiver of the Union 's statutory right to insist on bargaining with respect to the issue
can be found on the facts of this case . See cases cited supra.
Speidel Corporation , 120 NLRB 733, relied upon by Respondent , is inapposite.
In that case the Board found as a fact, on the basis of the record before it, "that
there was a clear understanding between the parties" that the payment of bonuses
would be a matter of management prerogative , and that the Union thereby "bar-
gained away" or "waived" its interest in that subject . In this case the facts do not
support such a finding.
THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, it will be recommended that it be required to cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
For the reasons stated I find and conclude that by refusing to bargain with the
Union regarding the rates for new jobs, Respondent violated and continues to
violate Section 8 ( a) (5) of the Act:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2 (2) of the Act, and
is engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By refusing to discuss with the Union the appropriate rates for new jobs, and
the requirement that certain employees submit to physical examination , Respondent
refused to bargain collectively with the representative of its employees , and inter-
fered with , restrained , and coerced its employees in the exercise of rights guaranteed
to them by Section 7 of the Act, and thereby engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommended that Respondent, LeRoy Machine
Co., Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 481, International Union, United
Automobile Aerospace and Agricultural Implement Workers of America, AFL-
CIO, as the exclusive collective-bargaining representative of its employees in a
unit composed of all production and maintenance employees employed at its LeRoy,
New York, plant, exclusive of clerical employees, guards, and supervisors as defined
in the Act, with respect to the taking of physical examinations by said employees and
the fixing of rates for new jobs.
(b) In any like or related manner interfering with , restraining, or coercing its em-
ployees in the exercise of the right to self-organization , to form labor organizations,
to join or assist Local 481, International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, AFL-CIO, or any other labor organiza-
tion , to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any and all such activities , except to the extent
that such right may be affected by an agreement in conformity with Section 8 (a) (3 )
of the National Labor Relations Act, as amended.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act.
LEROY MACHINE CO., INC. 1441
(a) Upon request, bargain collectively with Local 481, International Union,
United Automobile, Aerospace and Agricultural Implement Workers of America,
AFL-CIO, as the exclusive collective-bargaining representative of all the employees
in the aforesaid unit, with respect to the taking of physical examinations by any of
said employees and the fixing of rates for new jobs, and if an understanding is
reached, embody such understanding into a signed agreement.
(b) Post at its LeRoy, New York, plant, copies of the attached notice marked
"Appendix." 17 Copies of said notice, to be furnished by the Regional Director for the
Third Region of the Board (Buffalo, New York), shall, after being duly signed by
Respondent's representatives, be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing 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.
3. Notify said Regional Director, in writing, within 20 days from receipt of this
Decision what steps Respondent has taken to comply herewith.18
"In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
11 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively with Local 481, International
Union, United Automobile, Aerospace and Agricultural Implement Workers
of America, AFL-CIO, as the exclusive collective-bargaining representative of
our employees in a unit composed of all its production and maintenance em-
ployees employed at our LeRoy, New York, plant, exclusive of clerical em-
ployees, guards, and supervisors as defined in the Act, with respect to the taking
of physical examinations by said employees and the fixing of rates for new jobs.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist Local 481, International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO,
or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may be affected by an
agreement in conformity with Section 8(a)(3) of the National Labor Relations
Act, as amended.
WE WILL, upon request, bargain collectively with Local 481, International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America, AFL-CIO, as the exclusive collective-bargaining representative of all
the employees in the aforesaid unit , with respect to the taking of physical ex-
aminations by any of said employees and the fixing of rates for new jobs, and
if an understanding is reached , embody such understanding into a signed
agreement.
LEROY MACIUNE Co., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
756-236-65-vol. 14 7-9 2
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No.
TL 6-1782, if they have any question concerning this notice or compliance with
its provisions.
Scherer & Sons, Inc. and Local No. 415, International Ladies'
Garment Workers ' Union , AFL-CIO. Case No. 12-CA-1634.
June 30, 1964
DECISION AND ORDER
On December 27,1962, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that
the 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 Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices, and recom-
mended that the allegations of the complaint pertaining thereto be
dismissed. Thereafter, the General Counsel and the Respondent filed
exceptions to the Intermediate Report together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein.'
The Trial Examiner found that the action taken by the employees to
restrain the picketing at the Respondent's plant was concerted activity
within the purview of Section 7 of the Act, and that the Respondent
unlawfully interfered with this protected concerted activity in viola-
tion of Section 8 (a) (1) of the Act. More specifically, the Trial Ex-
aminer pointed to the signing of the authorization of power to Nellie
Kitchens to obtain counsel to remove the picket line and the signing
of the complaint to restrain the Union, as the protected concerted
activity unlawfully interfered with by the Respondent. In his ex-
ceptions and supporting argument, the General Counsel contends,
however, that inasmuch as the above-described activities were inspired
and directed by the Respondent, they are employer activity rather
than protected concerted, employee activity within the meaning of
I The Respondent's request for oral argument before the Board is hereby denied as the
record, the exceptions , and the briefs adequately present the issues and positions of the
parties.
147 NLRB No. 128.