Marshalltown Trowel Co.

National Labor Relations Board - Board Decisions

Apr 17, 1989

293 N.L.R.B. 693 (N.L.R.B. 1989)

MARSHALLTOWN TROWEL CO
Marshalltown Trowel Company and International
Union, United Automobile , Aerospace and Agri-
cultural Implement Workers of America, UAW
Case 18-CA-10310(1-2)
April 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On January 9, 1989, Administrative Law Judge
Steven M Charno issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed a brief answer-
ing the Respondent's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings, findings,
and conclusions and to adopt the recommended
Order 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Marshall-
town Trowel Company, Marshalltown, Iowa, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order
' The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We note that the Respondent asserts it discontinued its daily posting
of incentive earnings data covering the work of 90 percent of the unit
employees in response to complaints from two or three employees that
their fellow employees were using the posted data as a basis for pressur
mg them to reduce their output In affirming the judge s conclusion that
the Respondent violated Sec 8(a)(1) and (5) by unilaterally modifying the
terms and conditions of employment by discontinuing posting the incen
tive earnings data and thereafter by refusing to furnish the data request
ed by the Union we in no way suggest that an employer is barred from
acting to protect employees who choose not to participate in a work
slowdown The action taken by the Respondent in this case to accom
plish this asserted purpose however was unnecessarily broad even as
suming the validity of the reports The Respondent did not investigate
these reports and never attempted to respond to the reported incidents on
an individual basis
Everett Rotenberry Esq, for the General Counsel
John B Grier Esq and John F Veldey Esq (Cartwright
Druker & Ryden) of Marshalltown Iowa, for the Re
spondent
Stanley Elsentein Esq (Katz Friedman Schur & Eagle),
of Chicago, Illinois for the Charging Party
STEVEN M
693
DECISION
CHARNO , Administrative Law Judge In
response to charges timely filed, a consolidated com
plaint was issued on April 20, 1988, alleging that Mar
shalltown Trowel Company (Respondent) violated Sec
tion 8(a)(1), (3), and (5) of the National Labor Relations
Act by unlawfully threatening, disciplining, and promis
ing benefits to its employees, unilaterally modifying the
terms and conditions of their employment and refusing
to supply information requested by the International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (the Union) Respond
ent s answer denies the commission of any unfair labor
practice
A hearing was held before me in Marshalltown, Iowa
on June 15 and 16, 1988 1 Briefs were thereafter filed by
the General Counsel the Charging Party, and Respond
ent under extended due date of August 9, 1988
FINDINGS OF FACT
I JURISDICTION
Respondent is an Iowa corporation engaged in the
manufacture, sale, and distribution of trowels and related
masonry products with an office and place of business in
Marshalltown, Iowa During the calendar year ending
December 31, 1987, Respondent, in the course of its op
erations in Iowa, purchased and received goods valued
in excess of $50,000 from points outside the State and
sold and shipped goods valued in excess of $50 000 to
points outside the State It is admitted and I find, that
Respondent is an employer engaged in commerce within
the meaning of the Act
The Union is admitted to be, and I find is, a labor or
ganization within the meaning of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The Union has represented certain of Respondent s
workers2 since December 1965 3 Respondents recogni
tion of the Union as the exclusive bargaining representa
tive of employees in the bargaining unit has been em
bodied in a series of collective bargaining agreements,
the most recent of which was effective from August 7
1984 to August 7, 1987 4 Between 1981 and 1987, Re
spondent cut the size of the unit in half by transferring
work from Marshalltown to a facility in Arkansas 5 The
most recent such transfer took place in July or August
1987
' The General Counsels unopposed motion to correct the transcript is
noted and corrected
2 The relevant bargaining unit is
All production and maintenance employees employed at [Respond
ent s] Marshalltown Iowa facility excluding office and clerical em
ployees professional and supervisors as defined in the Act
The parties so stipulated
4 This finding is based on Respondents answer to the consolidated
complaint
5 Respondents secretary treasurer Burkhardt admitted that the unit
had been reduced over this period from between 90 and 100 employees
to 51
293 NLRB No 83
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent represented by Secretary Treasurer
David Burkhardte and its attorney John Veldey, began
collective bargaining negotiations with the Union in July
1987 7 At a negotiating session on August 7, Respondent
made a final offer, which contained wage and benefit re
ductions but included a new "forging bonus " Veldey ini
tially stated that the bonus would be implemented within
30 to 60 days but later indicated that he could not speci
fy a date of implementation The Union refused Re
spondent's final offer, and Respondent declared an im
passe Max Tipton, the Union's International representa
tive, stated that the unit employees may vote on coming
to work without a contract" Veldey responded that 'if
they come to work, it will be on a day to day basis
under the terms of the expired contract as modified
The union representatives "acknowledge[d] Respond
ent s ability to implement the final offer, thereby reduc
ing both wages and benefits 9 On August 10, Respondent
implemented the offer, except for the forging bonus
Another negotiating session took place on September
1 In response to a newspaper headline reading, `Trowel
Talks Go On, No Contract," Veldey stated that it was
Respondents position" or "understanding that the em
ployees were working on a day to day basis under the
terms of the expired contract as modified by Respond
ent's final offer Steven Nordstrum, chairman of the
Union s bargaining committee, and Tipton indicated their
agreement with Veldey s interpretation," stating, [w]e
understand that 9 There is no probative evidence that
an oral collective bargaining agreement ever came into
being between Respondent and the Union 10
Respondent and the Union continued to negotiate
during the remainder of 1987 and the first part of 1988
Throughout this period, the Union made economic and
wage proposals
B Incentive Earnings Information
for many years, Respondent daily posted incentive
earnings figures for the 90 percent of its employees cov
ered by its Wage Incentive Plan Incentive earnings
were and are an element of the formula used by Re
spondent to compute wages The employees daily re
6 Burkhardt is admitted to be one of Respondents supervisors and
agents
7 All dates are in 1987 unlesss otherwise indicated
8 Findings concerning the August 7 meeting are based on Burkhardt s
testimony Burkhardt also testified concerning his understanding of what
he was told by Veldey about an August 9 telephone conversation be
tween the latter and Tipton Burkhardt s narrative does not purport to be
a verbatim account of the telephone conversation and Veldey was not
called as a witness I find Burkhardt s testimony on this point to be un
supported hearsay without demonstrated probative value
9 Findings concerning the September 1 meeting are based on Burk
hardt s contemporaneous notes and his uncontroverted testimony
is Burkhardt who professed almost total unfamiliarity with the re
quirements of the National Labor Relations Act purportedly concluded
(apparently after supplying a contrary affidavit to agents of the Board)
that the union representatives statements on September 1 confirmed the
existence of an oral collective bargaining agreement Veldey was not
called as a witness Nordstrum testified [w]e understood what they
meant but we did not agree to anything Based on Burkhardt s incon
sistent stones and on my observation of the witnesses demeanor while on
the stand I credit Nordstrum s testimony over Burkhardt s contrived and
disingenuous conclusion
viewed the posted data to verify accuracy 11 and to de
termine whether they wished to bid on a job that was
then or might later become available 12 The Union used
the same data to calculate its members' dues and, begin
ning in July, to determine the cost of various contract
proposals during the collective bargaining negotiations
with Respondent 13
After implementation of wage and benefit reductions
contained in Respondent's final offer, a number of em
ployees reduced their output to closely approximate Re
spondent s standard for acceptable performance 14 Re
spondent's management thereafter received complaints
from two employees that they had been pressured by co
workers to reduce output Respondent did not investi
gate these complaints but, on October 29, stopped post
ing incentive earnings data This step was taken without
notice to or negotiation with the Union 18 Respondent s
management was unaware of any fact indicative of union
involvement in the decrease in employee output,' 6 and
the record contains no evidence that the Union was re
sponsible
It was Respondent's intended policy after October 29
to show each employee his or her own incentive earn
ings information on a daily basis, but delays in making
this information available were more frequent and of
greater duration than had previously been the case 17
When the information did become available, it was orally
communicated to the employees while they were en
gaged in production tasks,18 Although incentive earnings
information relating to any posted job vacancy was pur
portedly available from Respondents management on re
quest, Respondent never announced this availability 19
and at least some of its employees were unaware they
could still obtain the information 20
After the posting was discontinued, Nordstrum wrote
to Burkhardt requesting that Respondent furnish the
Union with the daily incentive earnings? I of each em
ii Employees Davis Nordstrum and Schmidt credibily so testified
12 Employees Davis and Schmidt credibly so testified
13 I credit Nordstrum s uncontroverted testimony to this effect
14 Plant Manager Alexander admitted on cross examination that the
employees had a right to decrease their production to this standard and
that they could not be disciplined for so doing
15 Although Respondent denied these facts in its answer to the consoli
dated complaint Burkhardt admitted his belief that the Union had not
been notified
16 I credit Plant Manager Alexander s admission to this effect
i 7 Nordstrum s credited affi rmation of this fact is supported by Davis
testimony In view of Plant Manager Alexander s admission that there
were not very many data processing breakdowns after November 1 it
appears that delays in providing incentive earnings information were due
to lapses by Respondents foreman
18 This finding is based on the uncontroverted testimony of employee
Davis
1e Plant Manager Alexander so testified
20 Employee Davis credibly so testified
21 Respondents employee efficiency tabulations were denominated in
centive earnings information in correspondence authored by both Re
spondent and the Union and Burkhardt s testimony establishes that Re
spondent s management knew precisely which documents were designat
ed by the term Accordingly I reject Respondents contention at the
hearing that it was unaware of the identity of the data sought by the
Union
MARSHALLTOWN TROWEL CO
ployee, retroactive to the date that posting had ceased
Burkhardt received this letter on November 15 or 16 and
stated in a November 17 written response to Nordstrum
[W]e can only assume that the Union wants this in
formation to put pressure on individual employees
to resume their illegal conduct If you have some le
gitimate reason for requiring this information,
kindly advise us in writing
During a November 20 conversation, Nordstrum ac
knowledged receipt of the November 17 letter, said that
he would reply in the near future, and noted that the
Union used the information to calculate dues Burkhardt
tentatively suggested that Respondent could calculate
dues for the Union and indicated that he would take up
the matter with his superior On November 23, Burk
hardt telephoned Nordstrum and stated that Respondent
would agree to calculate dues Nordstrum was tentative
ly positive but stated that he would have to discuss the
matter with others in the Union 22 The following day,
Burkhardt received a November 23 letter from Nord
strum that requested production of the incentive earnings
information by November 30 That letter denied Re
spondent s assertion that the Union was pressuring em
ployees to decrease production and stated
[T]he Union has legitimate reasons for requesting
this information Not only do we base our dues on
this information, but I remind you that the Union is
the exclusive bargaining agent for your employees
and we have a right to this information
Burkhardt who professed to believe that the Union had
abandoned its original request during the prior evening s
telephone conversation, didn't put much stock in this
letter " Respondent thereafter forwarded dues data to the
Union but never supplied the incentive earnings informs
tion
On December 7, the Union filed an unfair labor prac
tice charge alleging that Respondent had violated the
Act by refusing to supply the requested incentive earn
ings information Although any possible confusion over
the extent on Respondent's compliance with the Union s
request was admittedly dispelled by receipt of the charge
on December 10, Respondent still refused to supply the
requested information 23 During the hearing Nordstrum
explained how the Union had used incentive earnings
data during the contract negotiations and why the Union
had a continuing need for that data This explanation had
no effect on Respondents refusal to provide the informa
tion
C The Work Stoppage
Respondent did not commence payment of the prom
ised forging bonus to its employees during the 90 day
period following implementation of its final offer When
22 Findings concerning the conversations on November 20 and 23 are
based on the mutually corroborative testimony of Burkhardt and Nord
strum
22 Burkhardt made these admissions in response to questions from the
bench
695
paychecks not containing the bonus were distributed on
the morning of November 20, seven first shift forging de
partment employees conferred briefly, clocked out, and
left the plant together at approximately 10 45 am and
began picketing with signs protesting Respondent's fail
ure to pay the bonus Five second shift forging depart
ment employees later joined the pickets instead of report
ing to work
When the 12 employees reported for work on Novem
ber 23, their next regularly scheduled workday, each was
given a written disciplinary warning that contained a
reprimand for engaging in an 'unauthorized strike' pur
portedly prohibited by the no strike provision in the ex
pired collective bargaining agreement 24 The relevant
contractual provision was expressly limited to the term
of the Agreement' All the warnings were to remain in
effect for a 1 year period, during which the employees
were subject to discharge for similar conduct
D Alleged Promise of More Favorable Conditions
Nordstrum and Claude Mull, a union official, met with
Burkhardt in the latter s office at approximately 5 30
p in on November 20 After the three discussed the
work stoppage earlier that day and the Union's informa
tion request, Nordstrum asked what could be done to
reach a collective bargaining agreement Burkhardt rose,
went to the door, looked into the outer office, closed the
door, returned to his desk, secured his telephone, and
stated that the ensuing conversation would be off the
record After explaining that Respondent's president
could fire him for 'talking like this, ' Burkhardt stated
that the employees would be treated better and be better
off without the Union After both employees demurred,
Burkhardt stated that the employees and the Company
could work something out" and suggested that the em
ployees try dropping the Union for a year He noted
that, "if things didn't work out, the Union could be re
instated 25
Later, Nordstrum and Mull discussed the November
20 meeting and decided that they should attempt to
strengthen the evidence in support of a contemplated
unfair labor practice charge by encouraging Burkhardt
to detail the benefits that employees would receive on
abandoning the Union 26 On December 4 Nordstrum
24 It was stipulated that each of the following employees received the
warning described in text Richard Allen Dan Butler William Davis
Earl Hadley Dan McNary William Monroe Tom Hull Sandra Nod
land Darel Plante Billy Rankin Steve Schmidt and Charlottee Weitzel
25 Nordstrum s testimony to this effect was supported in material re
spects by that of Mull I do not find it significant that Nordstrum remem
bered Burkhardt s mention of the Union as a narrative statement while
Mull recalled an interrogative Burkhardt agreed with the employees ac
counts in most particulars but maintained that it was they who had raised
the subject of the Union asking what benefits they would receive if they
dropped the organization Both employees gave spontaneous believable
renditions of what occurred and both demonstrated their candor by testi
fying against their own and the Union s perceived interest when they ad
mitted their December attempt to entrap Burkhardt Burkhardt was a less
than reliable witness (as demonstrated by his incredible account of an
oral collective bargaining agreement ) and his testimony concerning the
November 20 conversation had a memorized and practiced ring on direct
and cross-examination For these reasons and based primarily on my ob
servation of the demeanor of all three witnesses while testfying I credit
Nordstrum and Mull over Burkhardt
26 Nordstrum and Mull so testified
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Mull again met with Burkhardt After the three dis
cussed a number of matters, Nordstrum asked Burkhardt
what benefits the employees would have if they dropped
the Union Burkhardt responded that it was unlawful for
him to answer the question and that he would have to
consult an attorney 27
E Alleged Threat of Plant Closure
On December 16, employee William Davis ran out of
work and attempted to invoke a newly negotiated bump
ing procedure in order to transfer to another job When
his foreman refused to allow the transfer Davis and
Steve Schmidt, the departmental steward, left the plant
floor to prepare a grievance After they had begun, they
were approached by Charles Alexander, Respondent s
plant manager,28 who asked what they were doing On
being informed Alexander became visibly upset, turning
red, shaking, and speaking more loudly than usual in a
quivering voice He told the employees that they were
stupid for filing a stupid grievance Alexander then
stated that all they were going to do was cause trouble
and get the rest of the plant moved, at which point he
expressed a fear that he might lose his own position Al
exander called Davis a screw off' and told the employ
ees that they were going about this in the wrong way In
response to their questions, he indicated that it was
against the law for him to explain the right way '
When Alexander indicated that he was going to see
Burkhardt and have the bumping procedure removed
from the bargaining table, the employees asked whether
he was trying to tell them not to proceed with the gnev
ance As he departed, Alexander responded no, they
could write them all day' 29
F Discussion
The General Counsel contends that Respondent violat
ed Section 8(a)(5) of the Act by discontinuing the daily
posting of incentive earnings information on October 29
without notice to or negotiation with the Union It is un
contested that Respondent unilaterally modified a term
of employment without the requisite notice or bargain
ing, but the tenor of Respondents presentation at the
hearing suggests that it would argue that the modifica
27 Findings concerning December 4 are based on mutually corrobora
tive testimony of the meeting s participants
28 Alexander is admitted to be one of Respondents supervisors and
agents
29 These findings are based on the mutually corroborative testimony of
Schmidt and Davis both of whom evinced clear and detailed recollec
tions of the incident Schmidt s failure to include in the grievance any
reference to moving the plant is reasonable in light of his intention to
limit himself to recording those facts that had a bearing on the gnev
ante itself Although Alexander did admit that he had been upset during
the incident he displayed poor recall of its details and gave internally in
consistent testimony concerning it Initially he testified that he had
stated all you re gonna do is ruin it for everyone to which he said the
employees had responded what do you care you 11 get a go at Arkan
sas anyhow to which he recalled replying I don t want to go to At
kansas He later testified that in effect he had told the employees that
filing a grievance would ruin the availability of the bumping procedure
for everyone else The latter testimony contained no mention of Arkan
sas For these reasons and based on my observations of the demeanor of
the witnesses while they were on the stand I credit Schmidt and Davis
over Alexander
tion was not meaningful 30 The record, however, estab
lishes that the modification was material, substantial, and
significant Neither the frequency nor manner of supply
mg incentive earnings information to individual employ
ees after October 29 provided an adequate substitute for
daily posting It can hardly be argued that orally present
ing 3 or 4 days worth of figures to someone working at
an operating furnace is of the same utility as allowing
that individual, while at leisure, to read a single figure
from a bulletin board In addition, the elimination of
posting prevented employees from bidding on job vacan
cies in an informed manner , as well as stopping them
from assessing the income potential of jobs that were not
yet vacant I therefore find that Respondent's discontinu
ation of the daily posting of incentive earnings informa
tion violated Section 8(a)(5) of the Act
The General Counsel further contends that Respond
ent's refusal to comply with the Union s request for in
centive earnings information constituted a second viola
tion of Section 8(a)(5) In its answer, Respondent affirm
atively defended its refusal on the ground that the Union
had refused to articulate a legitimate purpose for the re
quested information The Union was not required to ar
ticulate a purpose for its request because wage informa
tion concerning bargaining unit employees is presump
tively relevant See W B Skinner Inc, 283 NLRB 989
(1987) Even absent this presumption, the ongoing collec
tive bargaining negotiations should have alerted Re
spondent to the relevance of requested wage information
See Amphlett Printing Co, 237 NLRB 955, 956 (1978)
The disingenuousness of this defense is further revealed
by Respondents continuing refusal to provide the infor
mation even after the Union had demonstrated a legiti
mate purpose " See Brazos Electric Power Cooperative
Inc 241 NLRB 1016 1019 (1979)
On brief Respondent advanced two additional argu
ments in defense of its conduct its refusal was justified
by its purported belief that the Union would use the in
centive earnings data to harass high production employ
ees and/or Respondent had complied with the Union s
request by supplying dues information The former argu
ment must be rejected because the record provides no
support for a belief that the Union or anyone acting on
its behalf was involved in the harassment of Respond
ent s employees The latter argument is also without
record support Burkhardt s testimony establishes that (1)
Nordstrum s November 23 expression of willingness to
consider Respondent's proposal to substitute dues data
for incentive earnings information was not an agreement
to accept that substitution (2) Respondent made no
effort after November 23 to determine whether the
Union would accept the substitution proposal, (3) Re
spondent ignored the letter it received on November 24,
which stated that the originally requested information
was still being sought not only for dues calculation,
but also pursuant to the Union's role as exclusive bar
gaining agent and (4) Respondent refused to supply in
centive earnings information even after being explicitly
" Respondent did not address the unilateral modification issue on
brief
MARSHALLTOWN TROWEL CO
put on notice that the Union did not regard the proffer
of dues data as an acceptable substitute For the forego
ing reasons I reject Respondents argument that its re
fusal to provide the requested information was based on
a bona fide belief that it had already complied with the
Unions request Accordingly, I find that Respondent s
refusal was violative of Section 8(a)(5) of the Act
The General Counsel alleges on brief that Respond
ent s discipline of 12 employees for engaging in an undis
putedly concerted work stoppage was inherently de
structive of Section 7 rights and a violation of Section
8(a)(3) of the Act Respondent contends that the employ
ees, 'by agreeing to accept employment on the basis of
the Company s final implemented offer, agreed to be
bound by the no strike provision contained in that offer
The fact that Respondents employees returned to work
after explicitly rejecting the Company s final offer does
not establish the existence of an oral collective bargain
ing agreement The record contains no evidence of offer
acceptance or mutual agreement, and I find that no
agreement of any kind came into being between Re
spondent and its employees on or after August 10
Respondent further argues, in the alternative, that the
Union s filing of grievances after August 10 demonstrates
the existence of an agreement to arbitrate disputes under
Respondents final implemented offer Respondent cor
rectly notes that such an agreement by the Union would
create a corresponding duty not to strike There is no
evidence that the Union expressly agreed to arbitrate dis
putes under Respondent's final offer The filing of griev
ances is a statutorily protected right that is not depend
ent on the existence of a contractual arbitration provi
lion In the absence of any evidence that the Union
sought to arbitrate a grievance after August 10 I find
that it did not impliedly agree to arbitrate disputes aris
ing under Respondents final offer
Because there is no factual foundation for the conten
tion that a no strike obligation existed on November 20 I
find that the employees work stoppage on that date was
protected concerted activity Respondents discipline of
12 employees for engaging in that work stoppage is
therefore a violation of Section 8(a)(3) of the Act
Burkhardt s November 20 comments to Nordstrum
and Mull are alleged by the General Counsel to be a
promise of benefit violative of Section 8(a)(1) of the Act
Respondent contended at the hearing that the Union s at
tempt to entrap Burkhardt constituted a showing of bad
faith sufficient to taint the allegation of the complaint
that concerned Burkhardt 31 I find this contention with
out merit because the attempt to entrap Burkhardt took
place after and resulted from the alleged violation and
because the Union never filed a charge concerning Burk
hardt s comments The real question before me is wheth
er Burkhardt s remarks constituted a promise of benefit
or were merely vague musings or rhetorical questions"
as argued by Respondent I find that Burkhardt' s sugges
tions that Respondent and its employees could work
something out and that the employees should drop the
Union for a year were neither rhetorical nor excessively
vague Accordingly, I find that Respondent made an un
31 Respondent did not repeat this contention on brief
697
lawful promise of benefit to its employees in order to
convince them to abandon the Union See Central Wash
ington Hospital, 279 NLRB 60 63-64 (1986)
Finally, the General Counsel contends that Alexan
der s December 16 comments amounted to a threat of
plant closure in violation of Section 8(a)(1) of the Act
Respondent argues that no violation took place because
Alexander's statement was an isolated one and because
he repudiated or retracted it during the conversation
Thus, the question before me is whether Alexander s
statement, taken in context, is coercive Based on Alex
ander's authoritative position in Respondents manage
ment, on Respondents prior demonstrations of animus
toward the Union and on the fact that Respondent had
moved part of its operations to Arkansas less than 6
months before the plant managers statement I find that
statement to be coercive Alexander s heated rejoinder
that the employees could file grievances all day did not
constitute a meaningful retraction of his earlier threat I,
therefore, find that Alexander s threat violated Section
8(a)(1) of the Act
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 All production and maintenance employees em
ployed at Respondents Marshalltown, Iowa facility, ex
cluding office and clerical employees professional and
managerial employees, guards and watchmen and super
visors as defined in the Act constitute a unit appropriate
for the purpose of collective bargaining within the mean
mg of Section 9(b) of the Act
4 At all times material the Union has been the exclu
sive bargaining representative of the unit defined in the
preceding paragraph
5 By unilaterally modifying the terms and conditions
of employment of its employees without notifying or
bargaining with the Union, Respondent has engaged in
and is engaging in an unfair labor practice in violation of
Section 8(a)(1) and (5) of the Act
6 By refusing to supply requested information neces
sary for and relevant to the Union s performance of its
function as the exclusive bargaining representative of the
unit defined in paragraph 3 above Respondent has en
gaged in and is engaging in an unfair labor practice in
violation of Section 8(a)(1) and (5) of the Act
7 By disciplining its employees for engaging in a con
certed protected work stoppage Respondent engaged in
an unfair labor practice in violation of Section 8(a)(1)
and (3) of the Act
8 By promising benefits to its employees in order to
induce them to abandon the Union, Respondent engaged
in an unfair labor practice in violation of Section 8(a)(1)
of the Act
9 By threatening its employees with plant closure for
filing a grievance Respondent engaged in an unfair labor
practice in violation of Section 8(a)(1) of the Act
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The aforesaid unfair labor practices affect com
merce within the meaning of Section 2(6) and (7) of the
Act
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I further find that it must be or
dered to cease those practices and to take certain affirm
ative action designed to effectuate the policies of the
Act Such affirmative action shall include commence
ment of good faith bargaining with the Union and lifting
the discipline imposed on employees who engaged in a
concerted protected work stoppage
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed32
ORDER
The Respondent, Marshalltown Trowel Company,
Marshalltown, Iowa, its officers, agents successors, and
assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively with International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW as the exclusive
bargaining representative of the employees in the unit
described below by (i) refusing to supply information
necessary for and relevant to the performance of the
Union s function as exlcusive bargainng representative
and (ii) modifying the terms and conditions of employ
ment of its employees without prior notice to the Union
and without having afforded the Union an opportunity
to negotiate concerning such changes The appropriate
unit is all production and maintenance employees em
ployed at Respondent's Marshalltown Iowa facility ex
cluding office and clerical employees, professional and
managerial employees, guards and watchmen and super
visors as defined in the Act
(b) Discipline its employees for engaging in concerted
protected activities
(c) Promising benefits to its employees in order to
induce them to abandon the Union
(d) Threatening its employees with plant closure for
filing grievances
(e) In any like or related manner interfering with re
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request bargain in good faith with the Union
concerning the decision to discontinue the daily posting
of incentive earnings information
(b) On request bargain in good faith with the Union
by supplying to it the incentive earnings information that
it requires to perform its function as the exclusive repre
sentative of the employees in the unit
32 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
(c) Remove from its files any reference to the unlawful
discipline of Richard Allen, Dan Butler, William Davis,
Earl Hadley Dan McNary William Monroe Tom Mull,
Sandra Nodland, Darel Plante, Billy Rankin, Steve
Schmidt, and Charlotte Weitzel and notify these employ
ees in writing that his has been done and that the unlaw
ful discipline will not be used against them in any way
(d) Post at its facility in Marshalltown, Iowa, copies of
the attached notice marked Appendix B 33 Copies of
the notice, on forms provided by the Regional Director
for Region 18, after being signed by Respondents au
thorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicous places including all places where
notices to employees are customarily posted Reasonable
steps shall be taken by Respondent to ensure that the no
tices are not altered, defaced, or covered by any other
material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
33 If 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 Nation
al 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
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY THE ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
International Union, United Automobile Aerospace and
Agricultural Implement Workers of America, UAW as
your exclusive bargaining representative by (i) refusing
to supply information necessary for and relevant to the
performance of the Union s function as your exclusive
representative or (u) modifying your terms and condi
tions of employment without prior notice to the Union
and without having afforded the Union an opportunity
to negotiate concerning such charges
WE WILL NOT discipline you for engaging in a con
certed protected work stoppage or for engaging in other
concerted protested activities
WE WILL NOT promise you benefits in order to induce
you to abandon International Union United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW
WE WILL NOT threaten you with plant closure for
filing grievances
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL, on request bargain in good faith with Inter
national Union, United Automobile aerospace and Agri
cultural Implement Workers of America, UAW concern
MARSHALLTOWN TROWEL CO
ing the decision to discontinue the daily posting of incen
tive earnings information
WE WILL, on request , bargain in good faith with Inter
national Union , United Automobile , Aerospace and Agri
cultural Implement Workers of America , UAW by sup
plying to it the incentive earnings information that it re
quires in order to perform its function as your exclusive
representative
WE WILL remove from our files any reference to our
unlawful discipline of Richard Allen, Dan Butler, Wil
699
ham Davis Earl Hadley, Dan McNary, William Monroe,
Tom Mull, Sandra Nodland, Darel Plante, Billy Rankin
Steve Schmidt and Charlotte Weitzel, and WE WILL
notify these employees in writing that this has been done
and that this unlawful discipline will not be used against
them in any way
MARSHALLTOWN TROWEL COMPANY