McCulloch Corp.

National Labor Relations Board - Board Decisions

Jul 18, 1961

132 N.L.R.B. 201 (N.L.R.B. 1961)

McCULLOCH CORPORATION 201
where parts, jigs, and fixtures of Clutch were stored. However, on
that date, Clutch assigned one of its office employees, Chris McClur-
kan, to the shipping department of Foundry, thereby displacing the
Foundry employee. McClurkan is classified as a shipping clerk. He
works in close proximity to the employees of the assembly shop of
Foundry, and, when absent or behind in his work, a Foundry assem-
bly shop employee is assigned to assist or perform his duties. Sub-
sequently; Clutch assigned another of its employees, Roy Nix, to work
in the storeroom or warehouse area adjacent to the assembly shop of
Clutch. Nix stocks parts for Clutch. He also spends a considerable
portion of his time in assembling the various parts that go to make
up the product, and conducts tests on them. He records pertinent
information, and passes his findings on to the engineering depart-
ment of Clutch. His job requires no special schooling or training.
We find that Nix may properly be classified as an assembler and
inspector, and as such is includible in a production and maintenance
unit such as the one established herein.
As the record shows that Foundry and Clutch have substantially
the same officers, directors, and stockholders, and operate on a closely
interrelated basis, including the sharing of common facilities, we find
that these corporations constitute a single employer for jurisdictional
and unit purposes. As the record further shows that since August
1960 Clutch has assumed some of the packing and shipping functions
formerly part of the established unit involving Foundry alone, we
find that such changes indicate the appropriateness of a production
and maintenance unit which is coextensive with the operations of
both corporations, and we shall amend our certification of representa-
tives accordingly.
[The Board amended the certification of representatives to include
as an employer Wichita Clutch Company, Inc., and further to in-
clude within the unit the two employees discussed herein.] 3
This is not to be construed as a new certification
McCulloch Corporation and International Union , United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, (UAW) AFL-CIO. Case No. 21-CA-389d8. July 18,
1961
DECISION AND ORDER
On December 19, 1960, Trial Examiner John F. Funke issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached
132 NLRB No. 24.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereto. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief, and the Respondent also filed
a brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Inter-
mediate Report, and the entire record in this case, including the ex-
ceptions and the briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , with all parties represented , was opened before John F. Funke,
the duly designated Trial Examiner, at Los Angeles, California , on May 31, 1960.
Successive recesses were granted until June 27 to enable the parties to index and
cross-index 12 volumes of documentary evidence which, by stipulation,' form the
bulk of the record herein? The hearing closed on July 18, 1960.
The complaint alleged that McCulloch Corporation , herein called the Company
or the Respondent , refused to bargain collectively with the International Union,
United Automobile , Aircraft and Agricultural Implement Workers of America,
(UAW) AFL-CIO, herein called the Union or the UAW, by engaging in surface
and bad-faith bargaining and dilatory and evasive tactics. The complaint then
further alleged 10 specific instances of bad -faith bargaining . Paragraph 10 of the
complaint alleged that Respondent discriminated against members of the plant
negotiating committee with respect to hire and tenure of employment by assigning
them to more arduous jobs.
All of the above acts were alleged to be in violation of Section 8(a)(5) of the
Act and to interfere with , restrain , and coerce the employees in the exercise of the
rights guaranteed by Section 7, thereby violating Section 8 (a)(1) of the Act.
The answer denied the violations as alleged and, as an affirmative defense,
alleged that the Union had engaged in dilatory and evasive tactics; had made exor-
'The stipulation provided that the documents be received :
a. The same , as if each party had first made appropriate objections based on
relevancy , materiality , hearsay, best evidence rule , self-serving declarations , conclu-
sions, opinions , etc., and the same have been received over such objections by the
Trial Examiner with reservation by the Trial Examiner of the right to strike said
exhibits or any part thereof , after reviewing said exhibits . An automatic exception
shall be allowed to any of the parties to striking said exhibits or any part thereof
After reviewing the exhibits the Trial Examiner requested the parties to submit specific
objections to the admission of the exhibits and, on July 11, upon motion of the Respond-
ent, the Trial Examiner struck Exhibits Nos. 3 and 4 and admitted all others ( Exhibits
Nos 3 and 4 consisted of 52 documents of campaign literature distributed by Respondent
and the Union during the period preceding the representation election.)
2 Some idea of the nature and extent of the task which the parties imposed upon them-
selves may be gained from the fact that the index and cross -index run to some 50 pages
Received into evidence were 30 formal exhibits and in excess of 247 exhibits representing
3,000 pages of documents, including 4 complete sets of the minutes of 79 bargaining
sessions , proposed contracts and counterproposed contracts , communications from Re-
spondent and the Union to employees during the bargaining sessions , documentary in-
formation furnished the Union by the Respondent , etc The arduous and time-consuming
task performed by counsel and representatives of the parties saved several months of
hearing and rendered a distinct service to the Agency.
McCULLOCH CORPORATION 203
bitant and unreasonable demands; had demanded unlawful contract provisions; had
published false and misleading statements concerning the negotiations; and had
walked out of negotiations. It further alleged that during the course of bargaining
negotiations the Union lost its majority status and that the Respondent therefore
proposed that any agreement be confined to the contract year; admitted that Re-
spondent declined to bargain after the expiration of the certification year on the
ground that it had a good-faith doubt of the Union's majority status; alleged that
the Union had waived the right to any information or data which Respondent
failed to produce; and that the Union acquiesced in the unilateral granting of bene-
fits to employees in the bargaining unit.
Two rulings made by the Trial Examiner at the hearing have been left open by
the Board for a request for litigation in exceptions to the Intermediate Report.
On June 20 Respondent renewed its prehearing motion to dismiss or in the alter-
native to strike portions of the complaint nand fora bill of particulars. This motion
has been referred to Trial Examiner Miller and had been denied in part and granted
in part by his order dated March 10, 1960. When the motion was renewed the
Trial Examiner affirmed the ruling of Trial Examiner Millers and permission for
special appeal to the Board was requested by Respondent. Special appeal was denied
by the Board on June 23 without prejudice to renewal of the issues involved in any
Intermediate Report which might be filed .4
At the close of the hearing on July 13 the General Counsel rested. Respondent
then moved to dismiss paragraph 10 of the complaint and on July 14 the Trial Ex-
aminer, for reasons fully set forth in the record, granted the motion. The General
Counsel then pleaded surprise and moved to reopen his case to introduce the testi-
mony of employees Bush, Funk, Gettys, and Seals, all members of the Union's
negotiating committee. The motion was denied on the ground that the General
Counsel had rested and that leave to reopen could not properly be granted on the
sole ground that the Trial Examiner's ruling on Respondent's motion was adverse to
the General Counsel.5 The General Counsel then moved for and received special
8 The Trial Examiner affirmed on the ground that the prior ruling of the Trial
Examiner originally designated to hear the case was binding upon him, absent new matter
or other unusual circumstances ( The Trial Examiner was designated to act as Trial
Examiner in place and instead of Maurice Miller by order of the Chief Trial Examiner
dated May 31, 1980 )
I Since the motion of Respondent was a prehearing motion the permission to renew the
motion after close of the hearing in exceptions to the Intermediate Report appears
anomalous.
5 Before Respondent proceeded with its case and before counsel for Respondent made
the motion to dismiss counsel received assurances from the General Counsel that he had
no further witnesses to call and would only call witnesses to rebut testimony or evidence
introduced by Respondent . When the General Counsel rested the following colloquy
took place :
Mr. PAUL* Are you resting?
Mr. WHITTAKER : I've done it
Mr. PAUL : You aren't calling Mr. Bush')
Mr. WHITTAKER • I am saving him for rebuttal.
Mr. PAUL: Do we understand that the General Counsel has closed his case and
that there will be no request to reopen to produce the testimony of any witness who
is seated in this room? And I refer specifically to Mr. Bush, who has been here,
I think, throughout.
Mr. WHITTAKER : I have announced Mr Bush as a rebuttal witness He has been
here only three days.
Mr PAUL : Rebuttal for what?
TRIAL EXAMINER • Rebuttal, I assume for evidence that you might put in. This is
a difficult case to try in an orderly fashion
Mr. PAUL : But there is no intention on the part -of the General Counsel or the
union to attempt at a later point to reopen the case to produce Mr Bush except as a
rebuttal witness to anything that may be produced by the Respondent?
Mr WHITTAKER : I have said it as best I know how.
TRIAL EXAMINER : Yes, that is what he said I understood the answer to your
question to be in the affirmative , he would only be called to rebut matters presented
by the Respondent.
Mr. PAUL : I just wanted to be sore.
While it may be assumed that counsel is often surprised when a motion to dismiss all or
part of a complaint is granted this gives him no per se right to reopen and continue his
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permission to appeal to the Board. On August 1 the Board denied the appeal with-
out prejudice to renewing the issues raised by the motion in exceptions to the Inter-
mediate Report.
Upon motion of the Respondent an order was made by the Trial Examiner, dated
November 3, 1960, correcting errors in the transcript.
On November 10 Respondent by its attorneys moved to reopen the record to admit
in evidence a document known as "The Foremen's Manual" and for leave to file a
"Statement in Reply to General Counsel's Brief." The motion to reopen was denied
on the ground that should the Trial Examiner make any ruling based on evidence
dehors the record Respondent could file proper exceptions. The grounds for the
motion were references made to the manual in General Counsel's brief despite the
fact that the manual was never offered nor introduced into evidence). The motion
for leave to file a statement in reply was denied on the ground such a statement was
in effect a reply brief and the Board's Rules and Regulations make no provision for
the filing of a reply brief. (The grounds for this motion were alleged misrepre-
sentations of fact, improper references to documents not in the record, and mis-
statements of what such documents contained in the General Counsel's brief. A Trial
Examiner is bound to reject misrepresentations, evidence extrinsic to the record, and
misstatements in any briefs.)
Oral argument was waived by the parties and in view of the voluminous docu-
mentary evidence the time for filing briefs was extended to November 1. Briefs
were received from the General Counsel and Respondent on that day.
Upon the entire record in this case, and from my observations of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
•McCulloch Corporation is a Wisconsin corporation having its principal place of
business in Los Angeles, California. It is engaged in the manufacture and sale of
small gasoline engines, chain saws, outboard motors, and other products. During
the 12-month period preceding the issuance of complaint Respondent shipped prod-
ucts valued in excess of $50,000 to points outside the State of California.
Respondent admits and I find that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aircraft and Agricultural Implement
Workers of America (UAW) AFL-CIO, is a labor organization within the meaning
of Section 2 (5) • of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
On December 17, 1958, the UAW was certified as collective-bargaining repre-
sentative of the employees of Respondent in a unit described as follows: 6
Included: All production and maintenance employees employed by the Employer
at its Los Angeles, California, plants.
Excluded: Clerical employees, technical employees, engineering employees,
salaried employees, printing department employees, cafeteria employees, assistant
foremen, assistant supervisors, guards, watchmen, professional employees, and super-
visory employees as defined in the Act.
The parties agree and I find that the above unit is appropriate for the purposes of
collective bargaining and that the UAW represented a majority of the employees in
said unit as certified by the Regional Director.
Bargaining negotiations commenced on January 14, 1959, and continued until
December 16, 1959, when Respondent declined to meet on the ground that the UAW
case. In this respect counsel for the General Counsel enjoys no greater Immunity from
the hazards of trial procedure than counsel for any other litigant I might further add
that counsel for the General Counsel is bound by assurances given opposing counsel and
is not free to disclaim at will.
E At the election held on December 9, 625 employees voted for the Petitioner ; 609
voted against the Petitioner, 14 ballots were challenged, and 1 ballot was void The
approximate number of eligible voters was 1,318.
McCULLOCH CORPORATION 205
no longer represented a majority of the employees in the bargaining unit. Seventy-
nine meetings were held. William E. Lawson, International representative, was the
chief spokesman for the Union and Attorney Lee G. Paul was the chief spokesman
for the Company. The Union's negotiating committee consisted of Patrick Duffy,
chairman, Joe Funk, Inez Seals, and Hudena Gettys. John Keck, an International
representative, assisted Lawson and Carl J. Kaiser, the Company's corporate director
of industrial relations, participated with Paul.
The allegation that Respondent engaged in surface and bad-faith bargaining is
directed to the totality of Respondent's conduct. In the interest of order and clarity
the specific allegations of the complaint will first be discussed seriatim.
1. Dilatory and evasive tactics
The General Counsel contends that the Respondent engaged in dilatory tactics in
refusing to meet in continuous bargaining sessions and in delaying and failing to meet
when requested although the parties met 79 times in an 11-month period. For the
most part the meetings continued the entire working day, starting at 9:30 or 10 a.m.
and concluding about 5:30 or 6 p.m. The record discloses no delay or interruption
of the bargaining sessions of any substance. There was 1 week in May when Paul
could not meet with the Union and a second week when he could not meet with them
during the beginning of the week but offered to meet over the weekend to compen-
sate for the time lost. On July 6 the union representatives left the meeting place
because of a delay of 45 minutes on the part of Respondent's representatives in re-
turning from lunch. ' This delay was occasioned, however, by the, necessity of in-
vestigating the "Shea" incident raised by the Union in the morning session , When, at
the initiative of Respondent, the Union agreed to resume negotiations there was a
delay from July 20 until August 4 because Paul was hospitalized. When Paul subse-
quently was forced to ,take time for recuperation in September and Janofsky was sub-
stituted the Union protested the substitution whereas previously it had protested the
delay.
Interrelated with the charge of undue delay is the charge that Respondent in-
sisted upon meeting at hotels thereby incurring additional expense to the Union.
(Expenses were shared.) But Respondent did offer to meet at the offices of Paul,
Hastings, and Janofsky at no expense, an offer the Union rejected because it wished
to meet at the company plant. There had been a bitter preelection campaign be-
tween the parties and the bargaining sessions continued to be used as media of propa-
ganda by both sides in publications to the employees. I therefore agree that Re-
spondent was justified in its apprehension that the holding of bargaining sessions on
the plant premises could adversely affect production by unduly distracting the
workers.
I find that the Company fully complied with the obligation imposed by Section
8(d) to meet at reasonable times and that its refusal to meet on the Company's
premises was not motivated by a desire to harass the Union or put it to unnecessary
expense.
2. The refusal to give necessary information
a. The wage survey of 29 companies
Since 1953 the Company, for the purpose of maintaining wage rates comparable
to those of its competitors, had, together with Cannon Electric, made a wage study
of other companies engaged in similar operations. Wages and related data were
obtained from some 29 companies participating in the survey. On the basis of the
data the Company established its own wage rates and when, on September 9, 1959,
the Company presented its wage proposal to the Union it stated that its proposal
was based on this survey. In response to the Union's request for the survey the
Company presented it with what is known as the "straight line" graph (General
Counsel's Exhibit No. 17-g) and then with the "dotted line" graph (General
Counsel's Exhibit No. 17-h). The graphs were explained to the UAW representa-
tives by William Stamper, the Company's personnel manager. The Union then
demanded that the companies and their wage rates be identified. Paul agreed to
give the names of the companies and the job classifications but refused to specify
the rates paid by each of the participating companies on the ground that Respondent
had promised that this information would be kept confidential. While the results of
the survey were made available to each of the participants it was made available
in code form so that no company would know what any other company was paying.
The demand for and the refusal of this information were reduced to writing in the
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form of letters explicating the parties respective reasons. (General Counsel's Ex-
hibits Nos. 8-t 7 and 8-v 8). It was upon Lawson's insistence that the graphs were
7 General Counsel's Exhibit No. 8-t reads as follows :
OCTOBER 1, 1959
Mr. LEONARD JANOFSB:Y,
510 South Spring Street,
Loa Angeles, California.
DEAR MR JANOFSB:Y : On or about September 11, 1959 Mr. Stamper submitted to
me a list of 29 companies that he used In his recent wage survey. Subsequent to this
and upon our insistence he submitted a list of 18 classifications used in this survey.
I then requested a breakdown of the classification titles used for comparison pur-
poses at each of the 29 companies on a company by company basis.
On September 15, 1959 he read off for me a comparison of classification titles
used for comparison purposes at two of the 29 companies ; namely, Bendix Pacific
and Cannon Electric. We spent considerable time in discussion on the comparisons
at these two companies.
Since then I have attempted to further test the company's contention outlined on
the two charts they furnished the Union to support their contention that the wage
offer made was a sound one. With the limited data furnished me by the company
I find this impossible to do.
Therefore, I request that the company furnish the Union a written breakdown of
the classification titles and current rates of pay used at each of these 29 companies,
company by company for the purpose of their comparison.
Your prompt submission of this request breakdown will greatly assist the Union
in arriving at conclusion of the accuracy of your contentions.
Very truly yours,
WILLIAM E. LAWSON,
Int. Representative, Region 6, UAW-AFL-CIO.
WEL :co
oeiu30aficio
s General Counsel's Exhibit No. 8-v reads as follows :
OCTOBER 16, 1959.
Mr. WILLIAM E LAWSON.
International Representative,
Region 6, UAW-AFL-CIO,
8501 South San Pedro Street,
Loa Angeles 3, California.
DEAR MR. LAWSON: This will confirm the advice given to the UAW Bargaining
Committee at our negotiation meeting of October 15, 1959 to the effect that McCulloch
Corporation cannot accede to the request for further information set forth in the
last full paragraph of your letter dated October 1, 1959 addressed to the under-
signed and relating to the McCulloch Corporation wage survey.
In this connection you will recall that the Company has furnished you with copies
of the following documents relating to such survey :
(1) The August 1959 survey to determine the area average of maximum ranges
computed from an area survey of 29 companies taken during June, July and August
1959. This survey was voluntarily furnished you by the Company
(2) Thereafter and on or about September 11, 1959 in response to your request,
Mr. Stamper submitted to you a written list of the 29 Surveyed Companies used by
the Company in said wage survey.
(3) Thereafter and at your request, the Company further submitted to you a list
of 18 classifications of Jobs Surveyed.
(4) Thereafter you requested and we furnished you with a further chart relating
to said wage survey dated August 1959 and showing in dotted form on a graph the
rates obtained from the 29 companies surveyed.
We also advised you that a fundamental condition of our participating in the sur-
vey this year and in past years was the agreement between us and the companies
participating that the classification titles and rates of pay of each company would
be kept strictly confidential by us.
In an endeavor to lean over backwards in the furnishing of information to you,
we agreed to, and did, approach Bendix and Cannon and obtained from them a re-
lease of our commitment to hold in strict confidence their respective classification
Titles and rates of pay. This information we also furnished to you.
In view of all of the information' above set forth furnished by us to you, together
with other Information furnished you by us, coupled further with your own claim
McCULLOCH CORPORATION 207
meaningless without identification (although Paul offered to bring Stamper back
for further explanation) that the discussion broke down.-
Relying in part on the fact that the information supplied by Respondent to the
Union was in a form not substantially different from that in which it was provided
the participating companies and in part on the fact that I credit the statement that
identification of the wages paid by identified companies would have involved a
breach of confidence, I find that Respondent did not withhold information necessary
for the purposes of intelligent bargaining by this limited restraint.9
b. The incentive plan
In 1958 the Company had instituted an incentive plan in one department. On June
9 the Union demanded the abolition of the plan and then demanded the "mechanics"
of the plan, a demand which was'first refused by Paul on the ground that the de-
mand for abolition precluded the need for the information.19 On June 18 Robert
Moody attended the meeting to explain the incentive plan and Burkhard did most
of the interrogating on the part of the Union. The plan was requested in writing
and revised figures were submitted." It was iterated that the plan in full had not
been reduced to writing but that a complete report would be made available when it
was finished. Neither Exhibits Nos. 17-c and 17-d nor a close scrutiny of the
minutes reveals whether or not the information made available was sufficient for
bargaining purposes but no further demand for the completed plan appears to have
been made nor does it appear that the plan was ever submitted to the Union. On
my reading of the minutes I can only conclude that the Company did give such
figures as it possessed in writing to the Union, that it made Moody available for
oral axplanation, and that in the proliferation of other issues, arguments, and dis-
cussion the incentive plan was forgotten by both parties.'2 While production stand-
ards were the subject of discussion at some subsequent meeting the Union never
did renew its demand for the completed written plan and, in June, there had been
no refusal on the part of the Company to make the plan available when it was ready.
In none of the subsequent discussions in which the term production standards was
used was there any indication that the Union was suffering from lack of sufficient
information.
I find that the Respondent did not refuse or fail to provide the Union with
sufficient information to enable it to bargain on the incentive plan.
c. The sick leave plan
The request for information with respect to the sick leave plan for salaried em-
ployees is clouded with some ambiguity in the minutes. On May 21 the Union
proposed that the contract provide for paid sick leave (whether used or not) for the
hourly paid employees, a proposal Paul rejected. The Union then submitted that
salaried employees were paid for sick leave, which brought the rebuttal that the
working conditions of the salaried employees were not properly under discussion.
Lawson then requested the manual for salaried employees , which was refused.13
It is not clear, however, whether or not the manual contained information respect-
ing sick leave or whether the sick leave plan had ever been reduced to writing.
made on numerous occasions of knowledge of comparable rates in the area obtained
by virtue of your own organizational experience, we must decline to furnish you a
written breakdown of the classification titles and current rates of pay used by each
of the 29 companies because, as above set forth, the requested information is con-
fidential and, further, it is not necessary that the committee have such informa-
tion in order to bargain intelligently with respect to the wage issue between the
Company and the Union.
Very truly yours,
(S) Leonard S. Janofsky,
Of PAUL , HASTINGS & JANOFSBY.
LSJ:mc
5As to the refusal to provide the Union with confidential information in the form
requested see American Cyanamid Company (Marietta Plant), 129 NLRB 683.
3' General Counsel's Exhibits Nos 17-c and 17-d.
u General Counsel's Exhibit No 22, page 358.
"There was discussion of production standards when the Company's proposed manage-
ment clause was under discussion in December but again I find no request for further
information.
" General Counsel 's Exhibit No. 21 , page 326.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel's Exhibit No. 27, which was never given to the Union, but which
is the only evidence of the Company's sick leave policy in the record is no more
than an intraoffice memorandum recommending that an unpublished but specific
policy with respect to sick leave be adopted in view of disputes which had arisen
among the salaried employees.
On August 20 sick leave was again discussed but there was no renewed request
for the plan.14
On the basis of a single request and refusal I can only find the Union acquiesced
in the refusal and waived any right to such information. At no time did it advise
the Respondent why information relating to the plan for salaried employees was
necessary for intelligent bargaining for a plan for hourly employees. In the absence
of any given reasons establishing such necessity, I do not find such information
relevant herein.
d. Insurance plan and costs
On January 7, 1959, 1 week before bargaining negotiations commenced, Lawson
wrote Kaiser requesting, among other information, "an up-to-date copy of the
Insurance Plan" then in effect.15 The booklet outlining benefits was given to
Lawson but at the first meeting he stated that it was inadequate and made a detailed
request for information.18 On February 6 Lawson reduced this request to writing 17
and the request included information respectively: (1.) unit premiums; (2) the
premiums paid in each policy year; (3) average number of insured including em-
ployees and dependents; (4) claims paid; (5) reserves set aside in the policy year
and each separate reserve; (6) amount of each reserve at the beginning and end
of each policy year; (7) retention by insurance company; (8) dividend and refund;
and (9) master policy, including all amendments and endorsements. Also requested
was information to complete a chart 18 supplying the age, sex, and length of service
of all employees, and separated as to sex. This required that each employee would
be grouped according to his age and length of service, a request formidable in its
extent of coverage and statistical analysis 19 On February 17 Paul advised Lawson
that the figures required for the chart were not available and that it would take
one employee 6 days to compile them.
On March 13 John D. Cavanaugh, secretary and assistant treasurer of the Com-
pany, appeared to give the Union information on the insurance plan and to explain
the difficulty in providing certain of the information requested. One of the diffi-
culties was the fact that the policy covered both the bargaining and excepted em-
ployees at the plant and also employees at other plants of the Company. At this
meeting there was a general discussion of the difficulty in supplying the information
in the form requested by Lawson. As far as can be determined from the minutes
it was agreed that Cavanaugh would make further efforts to provide the requested
information.
On March 19 the Company supplied further information in compliance with re-
quest but as to the information required for the chart it refused unless the Union
was willing to share the expense of compiling the information.20 Lawson did not
agree to this.21 Again the issue seems to have been postponed pending receipt of
further information from Cavanaugh and the insurance company.
On April 9 Cavanaugh again attended and advised the Union that the insurance
company was changing its system to provide for reserves as required by the Labor-
Management Reporting and Disclosure Act. Further information was to be pro-
vided at the next meeting.22
On April 13 further data was supplied the Union.23 This information was ac-
cepted without comment by the Union and the discussion was continued on unrelated
topics.
11 General Counsel's Exhibit No 21, page 558, and following pages.
11 General Counsel's Exhibit No 8-a.
11 General Counsel's Exhibit No. 14, page 7
17 General Counsel's Exhibit No 18-c
18 General Counsel's Exhibit No 18-d
19 Paul's comment was, "It looks like a hell of a job to me, but then I am unfamiliar
with this sort of thing " Lawson's reply was that it involved 1 hour's work, a dis-
crepancy in viewpoint which was typical and continued throughout the bargaining
sessions
20 General Counsel's Exhibit No 21, page 118.
21 General Counsel's Exhibit No 14, page 87.
22 General Counsel'ss Exhibit No 21, page 176.
23 See General Counsel's Exhibits Nos. 14, page 190; 18-f; and 18-g.
McCULLOCH CORPORATION 209
The minutes do not reveal any further discussion of the insurance plan until
October, when Lawson inquired of the Company, which had increased the,benefits
in the salaried group , if it now had a breakdown between the bargaining unit and
the exempt classifications . Janofsky promised to check on this 24 Janofsky later
replied that the breakdown had been only by numbers-neither names nor other
identification of the affected employees -had been given the insurance company.
Lawson disputed this and Janofsky gave him the information which he received, he
stated , from an executive of the insurance company and which embraced the in-
formation in the form required and used by the Company but which was not in the
form demanded by Lawson.
On October 26 Lawson again raised the question of a cost breakdown between
unit and extra-unit employees and was given the same answer . There followed a
general discussion of other factors of the plan 25 All that appears from the minutes
is that the discussion was inconclusive.
A difficulty with resolving this issue is that the minutes do not reflect with preci-
sion the reasons why Lawson considered the age and length of service of the em-
ployees necessary to bargaining on this issue nor can I find, from the minutes,
anything but a naked statement that the Company could not make this information
available without extraordinary effort and expense. 6
The General Counsel urges that information as to sex of employees was withheld
from the Company although it was available on April 21, as evidenced by General
Counsel 's Exhibit No . 16-f. But this information- was given to the Union on that
date and there is no reason why the Union could not relate this to insurance as
easily as the Company. '
I cannot find that , in refusing to give the Union a breakdown either as to sex or
as between the employees in the bargaining unit and those excepted , that the Com-
pany acted in bad faith . As to the first , this information was given the Union and as
to the second I must accept the Company 's statement that the insurance costs were
not broken down on such a basis. The insurance issue, like so many others, would
appear and disappear in the discussions with no explanation why it had been left
dormant except that other issues took precedence at certain times. I find no abso-
lute refusal to give any information which the Company had available . Where it
was not available the Company either refused to give what it did not have or asked
that the Union share the cost where substantial cost appeared to be involved.
e. Leave of absence, seniority , and employees ' profit-sharing and retirement plan
One of the allegations related to the charge that the Company failed to provide
information respecting the above items is that the Company refused to give the
Union a list of the addresses of all, its employees . On October 1, 1959. Lawson
wrote Janofsky demanding the addresses of all employees in the bargaining unit.27
The request followed a request for all names, dates of hire, and current seniority
status. While the latter information may have been relevant to determining whether
or not the Company had established uniformity in its profit -sharing plan between the
Los Angeles division and the marine division in Minneapolis , I do not find that the
addresses of all employees were essential to bargaining on this or any other issue.
This was the ground upon which Janofsky refused to give the addresses 28 i find
no obligation on the part of an employer to release information to the bargaining
union merely because it is available and is requested . A reasonable ground for
a f:eneral Counsel's Exhibit No 14. page 702.
21 General Counsel ' s Exhibits Nos 14, page 414 : and 21 , page 771.
"I do not agree with the statement In General Counsel 's brief that the Comnnnv's
witnesses revised their estimate of the time required to comnile all the information in the
form requested by Lawson . Frances Gross , the Comnanv ' s insurance coordinator , testified
that it would take more than a week for her to supply the information Paul AT Mandel,
data processing supervisor, testified that the IBM records showed the name lob clas.ifica-
tion, shift, payroll code to show whether the emnloyce was hourly or salaried , seiiiorlty'
date , date of last transaction , and date of last rate change The records were lncomnlete
as to matrimonial status , sex, and birth year ,Mandel'made an estimate of the length of
time required to provide a part of the information requested by Lawson but the estimate
was confined to those employees with respect to whom the records were complete (This
was estimated at 60 percent ) Mandel made no estimate of the time required to Provide
the Union with complete information In the form required for General Counsel 's Exhibit
No 18-d
27 General Counsel 's Exhibit No 8-s
29 General Counsel's Exhibit No 21 , page 736
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making the request and necessity for the information must be shown. This was
not done with respect to this request.
I have searched the record for support of the allegation that the Company did
not give the Union all necessary information relating to its leave-of-absence policy
and its seniority plan. The leave-of-absence policy and seniority policy were con-
tained in the booklet entitled "You and McCulloch" which set forth the Company's
personnel policies in detail.29 I do not find discussion in the meetings related to
failure to give information regarding leave of absence or seniority nor do I find
support for this allegation in the minutes. This portion of paragraph 9(a)(5)
must fail for lack of proof.30
The Company's profit-sharing retirement plan with its amendments 31 was given
to the Union at the meeting on January 23.32 The plan was adverted to at the meet-
ing on January 30 but only in relation to other issues.33 Dispute with respect to
the plan arose when the Union charged that employees under the bargaining contract
at Minneapolis received greater benefits under the plan than those at Los Angeles
because of a more liberal leave-of-absence policy under the Minneapolis contract.
The minutes of the July 6 meeting refer to a request for a list of employees showing
which accumulated and which did not accumulate seniority while on leave of absence
but they do not show the request.34 On August 19 the Union again charged that
employees at Minneapolis received greater benefits under the bargaining contract
there than the Company was offering at Los Angeles. But in this and subsequent
arguments, including the "Hutchinson" case, the source of conflict was the disparity
between the Minneapolis contract and the Los Angeles policy and proposals. I
cannot find that the Company refused any information necessary to bargaining with
respect to the profit-sharing retirement plan.
Concluding with respect to paragraph 9(a), I find no evidence to support any of
the allegations therein.
3. Offering conditions of employment less than established
a. As to holiday pay
This allegation relates to the Company's demand that the contract provide that
employees must work the day preceding and the day succeeding the holiday to
receive the benefit of holiday pay. This requirement is not an unusual one and is
intended to prevent excessive absenteeism over holiday periods. The Company had
been awarding holiday pay if an employee had worked during the holiday week so
this proposal was admittedly more strict than prevailing practice. The Company,
without a contract, had the right unilaterally to change its practice if it thought
holiday privileges were being abused. Faced with a contractual commitment it was
unwilling to continue a policy which was open to abuse. But the mere proposal of
less desirable working conditions in negotiations is not in itself sufficient reason to
reach a conclusion of bad faith.35 It is a factor in evaluating the totality of bargaining
conduct.
b. As to seniority
A comparison of the seniority provisions of "You and McCulloch" and those in
the Company's proposed contract 36 -eveals that they are identical. While there is
reference by Lawson to restoring what the Company had taken away with respect
to seniority I do not find support for his statement in the record 37 I cannot sustain
a finding that the Company offered less seniority than had been established during
negotiations.
21 General Counsel's Exhibit No 5-a.
° There were innumerable arguments concerning the Company's leave and seniority
policies and their application in specific instances but I do not find that the Union we*,
handicapped in either bargaining or the processing of grievances by failure to give ade-
quate information respecting the policies.
31 General Counsel's Exhibits Nos 19-a, b, c.
"General Counsel's Exhibit No 14, page 7.
91 General Counsel's Exhibit No 21, page 12
zN General Counsel's Exhibit No. 14, page 254.
85 Cranston Prtnt Works Company, 115 NLRB 537, 559-564.
se General Counsel's Exhibit No 5-a
37 General Counsel's Exhibit No. 22, page 546.
McCULLOCH CORPORATION 211
4. Insisting' the grievances within the unit be presented on free time while per-
mitting grievances from other employees to be presented on company time
The respective grievance and arbitration procedures proposed by the parties and
the settlement of individual grievances which arose during bargaining negotiation
provided continued and acrimonious argument. As to the specific allegation of
paragraph 9(c) it is clear that the Respondent at all times insisted that all griev-
ances steps must be taken on "free" time. This is not, of course, any per se in-
dicia of bad faith and I do not understand that such a claim is asserted by the
General Counsel. (The foremost reason advanced by the Company in support of
its free time proposal was that it would sharply curtail if not eliminate the presen-
tation of "crackpot" grievances.) The Company had previously permitted grievances
on company time but the practice appears to have ceased when the Company,
pursuant to a Board order, withdrew recognition from the employees relations
committee.38 My study of the minutes does not find support for the statement in
the General Counsel's brief that an employee using the informal-formal procedure
could do so on his own time but that if he presented the grievance with union
representation it must be presented on free time. (The General Counsel's brief
does not cite authority on which he relies.) I therefore find that, in the narrow
form of the allegation, paragraph 9(c) of the complaint is not sustained.
5. Taking an adamant stand and refusing to bargain on union security
The Company took the position from the beginning of negotiations that it would
not agree to a union-shop or to a checkoff provision. While the Company did have
a union-shop contract at Minneapolis such a contract had been in effect when the
Company acquired that plant. It never retreated, however, from its refusal to
agree to a union-security clause. On the other hand it did discuss the issue at length
during the bargaining sessions and while the discussions appear to have been fruit-
less they were not foreclosed.
I do not find that by taking an adamant stand on this issue the Company violated
Section 8(a)(5) of the Act. The Act does not require either party to agree to a
proposal or the making of a concession 39
6. Demanding, late in the certification year, that any agreement reached be con-
fined to the certification year and withdrawing recognition when the certification
year expired
As has been shown (footnote 6) the Union had been designated as collective-
bargaining agent of the employees by the meager margin of 625 to 609. On Novem-
ber 9 McCulloch received a letter from a group which designated itself as the
McCulloch employees committee advising the Respondent that the Union no longer
represented a majority of the employees 40 McCulloch replied on November 10
asking for proof in support of this claim,41 and on November 11 representatives of
the committee met with Kaiser and submitted 893 decertification cards.42 At
this time there was a total of 1,644 employees in the bargaining unit. It was on
the basis of this count that the Respondent, in its counterproposal of a complete
contract, fixed, December 18 as the termination date 43 On December 8 Kaiser
again met with the representatives of MEC and had the committee check its cards
for duplications and then Kaiser and Stamper went through the cards, checking
the names by departments. This check according to Kaiser, revealed 886 legitimate
cards against a current unit of 1,572. It was then proposed by Bioletti that if a
contract were agreed upon the termination date should be left to the National Labor
Relations Board. At the last meeting held on December 16 the Respondent de-
clined to meet again until the question concerning representation raised by the peti-
tion filed by MEC was settled. Although the brief of the General Counsel alleges
that the Respondent unlawfully and discriminatively assisted the MEC no such
charge was filed and there is not an iota of evidence in the record before me to
justify this allegation. Accordingly, I can only find on the facts before me that
38 See McCulloch Motors Corporation, 120 NLRB 1709.
s° See N L R.B. v. American National Insurance Co., 343 U.S. 395.
'0 Respondent's Exhibit No. 8.
11 Respondent's Exhibit No 9.
42 General Counsel's Exhibit No. 11-b.
4° On December 4 the original charge alleging refusal to bargain was filed.
614913-62-vol. 132-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent was confronted, on November 11 and again on December 8, with
sufficient evidence to justify a good-faith doubt that the Union continued to repre-
sent a majority of the employees in the bargaining unit. Under these circumstances
neither the demand that the contract be confined to the certification year nor the re-
fusal to bargain after the certification year violates Section 8(a)(5) of the Act.44
7. Posting, mailing, and otherwise disseminating biased information concerning the
bargaining conferences coupled with assurances, promises of benefit, and other
inducements calculated to undermine the Union's bargaining position and cause
defection in its ranks
In the absence of specific treatment of this allegation in his brief I can only
assume that the General Counsel refers to his Exhibits Nos. 10-a through 10-o, which
are Respondent's communications to its employees while the parties were bargain-
ing. (During the bargaining; period the Union distributed some 60 handbills to the
employees, General Counsel's Exhibits Nos. 9-a through 9-vv-v.) I agree with
counsel for the Respondent that Exhibits Nos. 10-a through 10-c and Nos. 10-n
and 10-o are beyond the 6-month limitation of Section 10(b) and cannot be con-
sidered evidence of violations. They are admissible only to the extent that they
cast light upon the Employer's state of mind at the bargaining table.
General Counsel's Exhibit No. 10-f is a letter from President McCulloch to his
employees referring to union charges that antiunion statements had been made by
a McCulloch supervisor. This letter gives the results of the Company's investiga-
tion of the charge and states that the supervisor was given a disciplinary suspension
for discussing the Union with an employee in violation of the Company's rules.
General Counsel's Exhibit No. 10-g is a letter from McCulloch, dated September
8, to employees outside of the bargaining unit. It stated that as a result of the an-
nual audit of the Company's book the Company would contribute $300,000 to the
profit-sharing plan. (Company contributions were fixed and computed partly on a
basis of the Company's profits ) The letter then referred to the Company's recent
wage survey of other companies in similar business and set forth specific wage in-
creases and increases in hospitalization benefits which would be made effective
September 15. The letter stated that the Company would offer the same benefits to
employees in the bargaining unit..
General Counsel's Exhibit No. 10-h is a bulletin advising the employees that
solicitation for support of a decertification petition could not take place in the
plant on working time.
General Counsel's Exhibit No. 10-i is a letter, dated October 8, referring to the
letter of September 8 (supra), stating that the Union was offered the same benefits
which were extended to the extra-unit employees on September 9, to be effective
when a contract was signed. (The Company had refused the Union's demand that
the benefits be made effective immediately.) The letter then discussed some of the
principal items of disagreement between the Union and the Company.
General Counsel's Exhibit No. 10-j is a letter from McCulloch to the employees,
dated November 5, which set forth at some length the status of bargaining negoti-
ations and the position of the Company with respect to the more important issues in
dispute.
General Counsel's Exhibit No. 10-k is a bulletin from Kaiser to the employees,
dated December 29, which announced that the Company had filed a petition for an
NLRB election on December 28 and that a decertification petition had been filed on
December 21. It then advised the employees that no further bargaining sessions
would be held until the NLRB had acted upon the unfair labor practice charges filed
by the Union and an election had been held.
General Counsel's Exhibit No. 10-1 is another bulletin from Kaiser, dated Febru-
ary 17, advising the employees that the NLRB was issuing complaint based upon the
unfair labor practice charges and that in view of the inevitable delay-which would
ensue before final determination the Company was putting into effect the benefits
which had already been given the extra-unit employees and offered to the Union.
The benefits were made retroactive to December 17, 1959, the day following the
end of the certification year.
General Counsel's Exhibit No. 10-m is a bulletin, dated February 22, advising
the employees when their retroactive paychecks would be issued.
I do not find that any of the above communications constituted promises of bene-
fit or other inducements calculated to undermine the Union's bargaining position or
44 Lloyd A Fry Roofing Company, 123 NLRB 647; Celanese Corporation of. America,
95 NLRB 664
McCULLOCH CORPORATION 213
to cause defection among its members. I do not understand the contention that a
a statement of benefits to be given employees who were not in the bargaining unit
coupled with a statement that the same benefits were offered to the Union on behalf of
the unit employees as a bargaining proposal, constituted an inducement to quit the
Union. The Union may not have enjoyed the dilemma of either accepting or re-
jecting such an offer but collective bargaining presents hazards to both sides and the
Company could not have done other than make the offer it did without either grant-
ing benefits to excepted employees while withholding them from unit employees or
giving the Union a concession of benefits without any quid pro quo. This offer and
the effectuation which followed will be considered under subsequent topics which
make more specific reterence to them. I do not find the allegations in paragraph 9(f)
of the complaint sustained by evidence in the record before me.
8. Announcing and granting wage increases and other benefits to employees outside
the unit in a manner calculated to undercut the Union's bargaining position
This allegation refers to the granting of increases in wages and hospitalization
benefits to employees excluded from the bargaining unit. (General Counsel's Ex-
hibit No. 10-g, supra.) The extra-unit employees were notified of the increases by
letter dated September 9 and the increases were made effective September 15. On
September 9 the Company made the same offer, through the Union, to the unit em-
ployees and this constituted to the Company's proposal to the Union of wage in-
creases and hospitalization benefit increases. It rejected the Union's suggestion that
the benefits be conferred as a "down payment" toward benefits which might be
reached in final agreement. As Respondent points out, the Company traditionally
made effective its new wage scale in the fall of each year when the results of its
survey of other companies was completed. For the first time it was confronted with
the predicament created by its current bargaining negotiations with an outside union.
It could elect between withholding all benefits from all employees or it could grant
the benefits immediately to its excluded employees and make an offer of the same
benefits to the Union for the unit employees. It chose the latter course. Since it
had been the past practice of the Respondent to make the benefits available when the
results of its survey had been completed I do not see how it could, in good conscience,
have withheld announcing the results or conferring them upon the excluded employees.
Inevitably, it appears to me, some of the onus for failure to disclose the information
or to make its limited grant of benefits, had Respondent chosen that course, would
have fallen on the bargaining agent and an alternative allegation of bad faith would
have been provoked. If the General Counsel had a tenable issue it must lie in Re-
spondent's refusal to give all employees the benefits immediately thus advancing the
the Union's bargaining position without obtaining any quid pro quo. I do not hold
that the Respondent was obligated so to weaken its bargaining posture. It is, I
believe, neither within my province nor that of the Board to dictate which course
Respondent should have followed. We have the narrow duty of determining whether
or not the course selected can be deemed evidence of bad faith. Considered in iso-
lation from the Respondent's conduct in negotiations and relied upon as a violation
per se, I do not find it can be so described 45
9. Unilaterally determining and granting the amount of its contribution to the Em-
ployees' profit-sharing plan and other benefits without bargaining with the Union
In the same letter to its employees announcing the increases in wages and hospitali-
zation benefits for extra-unit employees the Company announced that its contributions
to the profit-sharing plan would be in excess of $300,000. (General Counsel's Ex-
hibit No. 10-g, supra.) Neither the briefs of the parties nor the minutes of the
bargaining sessions cast much light upon this allegation, the gravamen of which lies
in unilateral action. When the Union was certified and for many years prior thereto
the Company had in effect a profit-sharing plan. The plan itself is a lengthy docu-
ment of 40 pages with an amendment of 10 pages. (General Counsel's Exhibit
No. 19-a.) It is a trust agreement in which the Company is the settlor, the Bank of
America is the trustee, and the employees are the beneficiaries. Contributions to be
made by the Company are fixed by article V of the plant and are computed accord-
ing to the annual profits of the Company as detailed in the plan. Volutary contri-
butions could be made by employees under article IV. Since the contribution of the
Company was fixed by the terms of the trust agreement and the Company was obli-
gated to announce the amount of its annual contribution, I am at a loss to understand
10 Shell Oil Company , Incorporated, 77 NLRB 1306, 1309-1310
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rationale of the charge that the announcement of its annual contribution was made
in bad faith. The announcement and the contribution were both in continuance of the
Company's prior policy, the plan was a part of the employment conditions at Mc-
Culloch, and the contribution was in compliance with its lawful obligation. (The
allegation that the Company did not make full and necessary information with respect
to the plan available to the Union and the allegation that employees at Minneapolis
received greater benefits under it than those at Los Angeles has already been dis-
cussed and disposed of by me. See paragraph 2-e, supra.) Since there was neither
a change in nor a modification of the plan I can conceive of no theory under which
continuation of the plan constituted unlawful unilateral action.
10. Unilaterally granting and putting into effect wage increases and other benefits
without consulting and bargaining with the Union
On February 17, 1960, the Company announced to its employees in the bargaining
unit that the National Labor Relations Board was issuing complaint upon the unfair
labor practice charges filed by the Union. In view of an anticipated delay in reach-
ing final determination of the charges which might prevent the employees from re-
ceiving any benefits for years to come the Company granted the unit employees the
benefits which it had offered the Union on September 9. The benefits were made
retroactive to December 17, the day following the end of the certification year. I
have already found that the Company had reasonable grounds for the doubting that
the Union represented a majority of the employees in the bargaining unit on De-
cember 16. In demonstration that the doubt was in good faith the Company had
filed its own petition for a National Labor Relations Board election. That election
and the resolution of the question concerning representation were indefinitely deferred
when the Regional Director issued complaint.
Under these circumstances I do not believe that equity would condone further
postponement of the increase in wages and corollary benefits. I have found no evi-
dence to indicate, even inferentially, that the beneficences were conferred to thwart the
rights of the employees to bargain collectively or for any other discriminatory
purpose. Continued withholding would impose a freeze upon wages while the unfair
labor practice charges were pursued through the Board and possibly the courts. But
the Act does not impose wage controls during the frustrating period of delay before
final adjudication is reached 46 and the Respondent could not, in view of its doubt
the majority status of the bargaining agent, negotiate further. It made such election
at its peril but it did not act in violation of the Act 47
11. Standing and remaining adamant in its unilateral control of rates of pay, wages,
hours of employment, and other conditions of employment
Since the record herein conclusively demonstrates that the Respondent did not
refuse at any time to bargain on rates of pay and other conditions of employment
I am at a loss to understand the above allegation. Had the Respondent taken the
40 The Board in American Cyanamid, supra, characterized reference to delay in its case-
handling processes as "gratuitous and injudicious." The facts in that case point their
own moral While the parties were negotiating for a new contract a narrow issue of
dispute arose which the Union, on May 14, 1958, brought to the Board with the not un-
reasonable hope that it could be resolved by the Board before the next bargaining meet-
ings to be held 2 years later But the case was not brought to hearing until July 7,
1959, and although the Intermediate Report issued on August 26, 1959, the Board did not
issue its decision until November 16, 1960, more than 21/ years after the filing of the
charge While some delay in the processing of refusal to bargain charges is due to the
priorities accorded other sections of the Act by the statute, Section 8(a)(5) and (b) (3)
are increasingly losing significance when the issues are allowed to stagnate until they
become not only moot but wort. Foreknowledge of the inefficacy of relief by adjudication
inevitably affects the strategy and tactics of the parties at the bargaining table, for the
pragmatist is counseled by circumstance. This, therefore, becomes a factor which must
be calculated by the examiner evaluating their conduct.
47 See Celanese Corporation of America, supra, where the respondent granted a previ-
ously offered wage increase of 15 cents per hour to all returning strikers. While the
Board found that a bargaining impasse had been reached before the increase was given,
I see no significant distinction between an impasse and a termination of bargaining based
on a doubt of majority status. In the first instance the employer was to establish a true
impasse and in the second he must establish his good faith In either case be assumes
the risk. See also Stoner Rubber Company, Inc., 123 NLRB 1440 (Members Jenkins
and Fanning dissenting in part).
McCULLOCH CORPORATION 215
position that any of the above issues were removed from the area of collective bar-
gaining or that Respondent was entitled to reserve exclusive control over such issues
I might agree that a violation had been established . , But this was not the case and
there are no facts in the record to support such a contention . If it is urged that the
Respondent was under an obligation to make concessions or to agree to the Union's
proposals then Section 8(d) provides the unequivocal negative answer. As the
Supreme Court has said in American National Insurance,' supra, page 404:
... it is equally clear the Board may not, either directly or indirectly , compel
concessions or otherwise sit in judgment upon the substantive terms of collective
bargaining agreements.
Thus the statute and the Supreme Court have disposed of any contention that the
good faith of Respondent 's bargaining tactics may be evidenced by its failure to
make a piecemeal surrender on the bargainable issues. The employer is bound to
bargain but he is not bound to agree.
While I agree the Respondent 's resistance to agreement is subject to appraisal in
determining his compliance with the statutory obligation I do not find evidence in
this record from which I may conclude that this Respondent 's position with respect
to specific issues constituted bad-faith bargaining.
12. Surface and bad-faith bargaining
While I have found that none of the specific allegations of independent or per se
violations has been established the more massive question of the totality of Respond-
ent's conduct must be faced.
No proper evaluation of its conduct at the bargaining table can be made without
consideration of facts extraneous to the immediate issues of dispute. As the minutes
indicate , the parties emerged from a bitter election campaign in which the margin
of victory for the Union was narrow . No effort was made by either party to con-
ceal the mutual hostility which existed and few sessions were free from statements
disparaging motive and expressing mistrust 48 As the Board said in Times Publish-
ing Company , 72 NLRB 676, 682:
The test of good faith in bargaining that the Act requires of an employer is
not a rigid one but a fluctuating one, and is dependent in part upon how a rea-
sonable man might be expected to react to the bargaining attitude displayed
across the table.
Both the Respondent and the Union gave every evidence that they were prepared
for hard , tough negotiations and no appraisal of Respondent 's conduct can be made
without that factor in mind. The reading of the minutes does not convey the image
of a meek and conciliatory union seeking any reasonable agreement from a recal-
citrant and unyielding employer although I concede that such is the picture portrayed
in the brief of the General Counsel.
The brief of the General Counsel cites over 100 bargaining issues or bargaining
tactics upon which he relies to establish the bad faith of Respondent . Those spe-
cifically alleged in the complaint as independent violations have already been found
lacking in merit. The pursuit of each of the remaining issues through the labyrin-
thine path of negotiations has been concluded but I see nothing to be gained by
detailing those pursuits and the results here. Such a task would be fruitless 49 I
have studied the minutes , the proposals and counterproposals,50 and the arguments
advanced with some care . I think it sufficient to say that the long and tedious
examination of the exhibits does not disclose that this is a case where the employer
"could find nothing whatever to agree to in an ordinary current -day contract sub-
mitted to him , or in some of the union's minor requests " nor where the employer
made "not a single serious proposal meeting the union at least part way." In such
a case I agree that the Board may conclude that there is a desire not to reach agree-
48 At the first meeting Lawson referred to the Company as a "concentration camp" and
the use of invective , taunts , and sarcasm continued throughout
'9 The very able brief of Respondent , which does attempt that task, runs to 222 pages.
As Member Jenkins stated in his dissent in Arrow Gas Corporation , 124 NLRB 766, 771:
I do not take it to be a responsibility or duty of a Trial Examiner that he specifically
refer to all the evidence in a record lest he be found to have overlooked certain testi-
mony . Such a requirement would foist an almost insuperable burden upon him and
would lead inevitably to voluminous Intermediate Reports
The Board itself reached a similar conclusion with respect to its own responsibility and
duty in Kohler Co , 128 NLRB 1062 ( footnote 13)
51 General Counsel's Exhibits Nos. 6, 7, 14 ( pages 420 and 421), and 20
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment with the Union . 51 Nor do I find that the Company foreclosed negotiation on
any mandatory subject of collective bargaining nor that it insisted upon any non-
mandatory subject 52 Neither do I find that it withdrew any proposal when agree-
ment appeared to have been reached and so indicated its predetermination not to
execute a contract . I see no point in reviewing each and every article upon which
agreement was reached to assay how much the Union may have given and how
much the Respondent since the case is not resolvable on a point system. To ask
the Board to sit in judgment of each thrust and counterthrust , to measure each pro-
posal and counterproposal , and to appraise each challenge and rejoinder is to im-
pose a task not only impractical but beyond the Board 's authority under the statute
as the Supreme Court so clearly stated in American National Insurance Company,
supra. It was precisely this fear that the Board was acting as judge of what con-
cessions an employer must make and of what proposals and counterproposals he
may or may not make which led to the Taft-Hartley amendments and the enactment
of Section 8(d).53 It is not for the Board to say what it deems fair and reason-
able 54 As the Fifth Circuit said in N.L .R.B. v. Herman Sausage Company, Inc.,
275 F. 2d 229, 231:
Deep conviction , firmly held and from which no withdrawal will be made, may
be more than the traditional opening gambit of a labor controversy. It may
be both the right of the citizen and essential to our economic legal system, thus
far maintained , of free collective bargaining . The Government , through the
Board , may not subject the parties to direction by compulsory arbitration or
the more subtle means of determining that the position is inherently unreason-
able, unfair , impracticable or unsound.
In short , the proposition that the Board should sit at the bargaining table as
arbiter or judge or that it should inhibit or restrain the freedom of the parties in
negotiation has been rejected.
Upon the above findings of fact, and upon the entire record in this case, I make
the following:
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. International Union , United Automobile, Aircraft and Agricultural Implement
Workers of America. (UAW) AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in any unfair labor practices in violation of Sec-
tion 8 ( a) (1) and (5) of the Act.
[Recommendations omitted from publication ]
11 See N L R B v Reed d Prince Manufacturing Company, 205 F 2d 131 (C A 1)
67 See N L R B v Wooster Division of Borg-Warner Corporation , 35f, U S 342
sa N L R 13 v . United Clay Mines Corporation , 219 F 2d 120 ( C A 6), citing American
National Insurance Company, supra
nn NLRB v IBS Mfg Co et at., 210 F 2d 634 (CA 5)
Illinois-Ruan Transport Corporation and Bernerd N. Lawrence
Automotive , Petroleum and Allied Industries Employees Union,
Local 618, affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America and
Bernerd N . Lawrence . Case's Nos. 14-CA-2307 and 14-CB-8!5.
July 18, 1961
DECISION AND ORDER
On March 6, 1961, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
132 NLRB No. 26.