Metlox Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 16, 1976

225 N.L.R.B. 1317 (N.L.R.B. 1976)

METLOX MANUFACTURING COMPANY 1317
Metlox Manufacturing Company and International
Brotherhood of Pottery & Allied Workers, Local
329, AFL-CIO-CLC. Case 31-CA-5502
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following
FINDINGS OF FACT
September 16, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On April 5, 1976, Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Metlox Manufacturing
Company, Manhattan Beach, California, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case held on February 10, 1976, is based on
an unfair labor practice charge filed by the above-cap-
tioned Union on July 28, 1975, and a complaint issued on
November 26, 1975, on behalf of the General Counsel of
the National Labor Relations Board, herein called the
Board, by the Regional Director for Region 31, alleging
that Metlox Manufacturing Company, herein called Re-
spondent, has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, herein called the Act. Respon-
dent filed an answer denying the commission of the alleged
unfair labor practices.
1. THE BUSINESS OF RESPONDENT
Metlox Manufacturing Company, the Respondent, a
California corporation , has its office and principal place of
business located in Manhattan Beach, California , where it
is engaged in the manufacture of ceramic dinnerware and
related products , and annually sells and ships goods valued
in excess of $50,000 directly to customers outside of Cali-
fornia and , admittedly , is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act
II. THE LABOR ORGANIZATION INVOLVED
The International Brotherhood of Pottery & Allied
Workers, AFL-CIO-CLC, and its affiliate, Local 329,
herein together referred to as the Union, are labor organi-
zations within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background' and Issues
In 1963 a majority of the Respondent's production and
maintenance employees designated the International
Union to be their bargaining representative in a Board-
conducted election and thereafter in June 1963 the Board
certified the International Union to represent all of the
employees. Respondent, in violation of Section 8(a)(5) and
(1) of the Act, refused to meet with the International
Union to negotiate the terms of a collective-bargaining
agreement until about November 1, 1963, and, then, in
1964 during the negotiations which followed further violat-
ed Section 8(a)(5) and (1) by refusing to permit the details
of its records to be disclosed to the International Union in
support of its claimed financial inability to grant a wage
increase. N L.R B v. Metlox Manufacturing Company, 378
F 2d 728 (C A 9, 1967), enfg. 153 NLRB 1388 (1965). The
parties between 1964 and 1970 bargained sporadically
without success in reaching an agreement. Then in 1970, in
violation of the Court's decree in N.L R.B v Metlox Man-
1 The background. as described infra, is based in substantial part on the
Board's findings and conclusions in Medox Manufacturing Company, 153
NLRB 1388 (1965), enfd 378 F 2d 728 (C A 9, 1967), and the Special
Master's findings and conclusions adopted by the court in N L R B v Met-
lox Manufacturing Company, 83 LRRM 2346,71 LC ¶ 13,817 (C A 9, 1973)
1 have not given any consideration to the judgment of the United States
Court of Appeals for the Ninth Circuit against Respondent filed March 3,
1970, (G C Exh 30(c)), inasmuch as it is based on a settlement stipulation
See Brotherhood of Teamsters & Auto Truck Drivers, Local No 70, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America (H A Carney and David Thompson, Partners. d/b/a C & T Truck-
ing Co), 191 NLRB 11 (1971), and Southwest Chevrolet Corp. 194 NLRB
975 (1972)
225 NLRB No. 192
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ufacturing Company, supra, as well as of Section 8(a)(5) and
(1) of the Act, Respondent refused the International
Union's requests to set aside enough time for reasonably
continuous, consecutive, and purposeful negotiations; en-
gaged in a studied pattern of delay, evasion, and procrasti-
nation in negotiating; refused to permit an International
Union representative to visit the plant during the hours of
its operation in order to observe dust and sanitary condi-
tions; rejected union stewards that were appointed or
might be appointed to adjust grievances with management;
and refused to place into effect those elements of a griev-
ance procedure that had been substantially agreed upon.2
The court in its order issued on April 18, 1973, directed
Respondent to purge itself of contempt by, among other
things, commencing to bargain with the International
Union no later than 15 days from the entry of its order and
to "thereafter proceed to bargain upon consecutive days
until contract proposals . . . have been considered and ac-
tion taken in relation thereto...." It was under the cloud
of the court's contempt decree that Respondent on March
28, 1974, almost 11 years from the date of the International
Union's certification as the employees' bargaining repre-
sentative , entered into its first collective-bargaining agree-
ment with the International Union 3 The agreement includ-
ed a grievance procedure which, in substance, provided for
the settlement of contractual grievances by impartial arbi-
tration only upon the mutual consent of the parties and
further provided that if either Respondent or the Union
did not agree to submit a grievance to arbitration then
either one might terminate the entire bargaining agreement
by giving 10 days' notice and that thereafter the Union had
the right to strike and the Respondent to lock out its em-
ployees. The Union during the term of the agreement was
rebuffed by Respondent on each of the three occasions it
sought to arbitrate a grievance, so, by letter of October 21,
1974, the Union gave notice to Respondent that pursuant
to the aforesaid terms of the collective-bargaining agree-
ment that it desired to terminate the agreement effective
November 1, 1974.
The instant case involves the collective-bargaining nego-
tiations between the Union and Respondent over the terms
of an agreement to replace the one which was terminated
on November 1, 1974. General Counsel, as alleged in the
complaint, contends that during the course of the negotia-
tions Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain about union security, dues
checkoff, and arbitration, and by otherwise failing to bar-
gain in good faith and by unilaterally changing the em-
ployees' wages and paid holidays at a time when no bar-
gaining impasse existed and by refusing to supply
information to the Union.
2 See the unpublished report of the Special Master, G C Exh 30(b)
which was adopted by the court in N L R B v Metlox Manufacturing Com-
pany, supra
3 Local 329 an affiliate of the International Union, was formed shortly
after the agreement was executed for the purpose of jointly representing the
unit employees with the International The record reveals that Local 329 has
in fact jointly represented the unit employees and that Respondent has
recognized the status of Local 329 and the international Union as that of a
point bargaining representative
B. The Bad-Faith Bargaining
1 The facts
a. The December 4, 1974, negotiation meeting
The first negotiation meeting occurred on December 4,
1974, at which time the Union presented, in writing, pro-
posed changes to the recently terminated contract. The
negotiators engaged in no negotiating but the Company's
spokesperson, Labor Relations Consultant Norman Jones,
reviewed the Union's proposals to make sure he under-
stood them. It was agreed, at Respondent's request, that
the Union would submit its proposals in the form of a
collective-bargaining agreement at the next bargaining ses-
sion.
b. The December 13, 1974, negotiation meeting
The next negotiation meeting was held on December 13,
1974, at which time the Union, in writing, submitted a pro-
posed contract. Although the proposal retained several of
the provisions in the old contract, in general it constituted
a significant departure from the old agreement . Some of
the more significant changes are: (1) A union-security
agreement which in substance provided for union member-
ship after an employee's 31st day of employment as a con-
dition of continued employment The old agreement pro-
vided for maintenance of membership wherein, " if . . . an
employee joins the Union after 30 days of employment or
30 days after the signing of this Agreement . . then said
employee shall remain a member of the Union in good
standing " (2) A dues-checkoff provision requiring the Re-
spondent to check off employees' union dues upon written
authorization The old agreement did not contain a similar
provision (3) A multistep grievance procedure culminating
in compulsory arbitration. The old agreement, as described
previously, did not contain a similar provision (4) An in-
crease in the number of paid holidays and in vacation pay
(5) An increase in the shift differential paid to the employ-
ees employed on the second and third shifts (6) Double
time for employees employed over 48 hours a week rather
than one and one-half times their regular rate of pay are
provided in the old agreement. (6) Requirement for Re-
spondent to provide certain equipment, gloves, masks, etc.,
to the employees in addition to remedying certain alleged
onerous physical conditions-temperature, lighting, noise
level, etc. (8) Plantwide bumping rights for laid-off employ-
ees and employees to be selected for layoffs , transfers, and
promotion by seniority. (9) Requirement for Respondent
to replace or repair all handtools, except electrical tools, of
the maintenance department employees which become
broken or worn out. (10) Requirement for Respondent to
pay the entire cost of the employees' medical and life insur-
ance coverage, rather than only a part of the cost as was
the current policy. (11) Five days of yearly paid sick leave.
The old agreement did not provide for paid sick leave. (12)
"These provisions are (1) non-discrimination , (2) call-in report pay-
ments. (3) union representation , (4) management rights, (5) rest periods, (6)
military clause, (7) union leave, (8) pregnancy leave , (9) injury on job
METLOX MANUFACTURING COMPANY 1319
A pension plan. The old agreement did not provide for a
pension plan. (13) Jury duty pay. The old agreement did
not provide for jury duty pay. (14) A 15-percent across-the-
board wage increase for all employees in each year of a
3-year contract plus other wage related proposals calling
for an additional increase in the wages of certain employ-
ees.
Jones, upon receipt of the Union's proposal, went
through the entire proposal and indicated that Respondent
agreed with all of the provisions which had been included
in the old agreement 5 and asked that the parties defer their
discussion about the remainder of the Union's proposal
until the next meeting. The Union agreed.
During this meeting or the meeting of December 23,
1974, Jones declared that he had discussed the subject of a
contractual grievance procedure ending in compulsory ar-
bitration with the Respondent's president, Shaw, and that
based on this conversation Jones felt there was no way that
Respondent would agree to this proposal. In answer to an
inquiry about how the Company intended to handle em-
ployees' grievances, Jones stated that if the Union failed to
resolve a grievance to its satisfaction that the Union could
call the employees out on strike
c The December 23, 1974, negotiation meeting
The next negotiation meeting was held on December 23,
1974, at which time the Union's entire proposal was dis-
cussed and reviewed. The outcome was Respondent agreed
to accept the language in the proposal's preamble which
was virtually identical to the old agreement Respondent
refused to agree to any of the changes or additions to the
old agreement contained in the proposal.
d. The January 13, 1975, negotiation meeting
The next negotiation meeting took place on January 13,
1975,6 at which time Respondent was supposed to submit
its contract proposals. But, when Jones stated that
Respondent's proposals were not quite ready, the parties
agreed to meet January 16 The meeting ended after a brief
discussion about matters not pertinent to this proceeding
e. The January 16 negotiation meeting
On January 16, the parties next met and Respondent
submitted its proposed contract which was effective from
November 1, 1974, to November 1, 1975, an agreement of
9-1/2 months' duration. This proposal, a written one, in-
corporated those provisions included in the Union's pro-
posal which Respondent at the meetings on December 13
and 23, 1974, as described previously, had agreed to ac-
cept. It rejected outright, offering no counterproposals, the
Union's proposals for dues checkoff, maintenance tool re-
5 These provisions are set out, supra, in In 4 In addition Jones voiced
agreement with one other item not contained in the old agreement. namely,
that upon the request of the International Union two employees could he
given leaves of absences without pay to take positions with the International
Union
e Unless otherwise specified all dates hereafter shall refer to 1975
placement, paid sick leave, pension plan and paid jury
duty. Also rejected were the Union's proposals on union
security, grievance arbitration procedure, leave of absenc-
es, seniority, probationary employees, group medical insur-
ance, and bulletin boards. Instead Respondent proposed
that the language of the old contract be retained for these
subjects. One improved economic benefit, other than wag-
es, was offered by Respondent, namely, an increase in the
number of paid holidays from four to five.? On wages
Respondent's proposal noted that effective January 1,
1975, the minimum hourly wage rates of employees had
been increased by law to $2.10 and proposed that if the
Union agreed to the Respondent's proposed contract that
all employees employed in classifications whose wages had
not been increased January 1, 1975, would receive a 5-cent-
an hour increase except for those employed in maintenance
and repair classifications, and that the employees working
in 6 of 16 decorating department classifications would re-
ceive an additional 5-cent-an-hour increase. What this
meant was that, since approximately 70 of the Re-
spondent's 100-plus classifications (excluding mainte-
nance and repair) had received wage increases, pursuant to
the minimum wage law on January 1, only the employees
employed in about 36 classifications would get wage in-
creases under the Respondent's wage proposal
The negotiators reviewed and discussed the Re-
spondent's entire proposal. On union security and dues
checkoff, the Respondent's spokesperson, Labor Relations
Consultant Jones, stated that he had been told by Shaw,
the Respondent's president, that Shaw would "not go for
Union Security and Checkoff" nor would Shaw accept a
grievance procedure ending in compulsory arbitration but
that the Union would have to strike to resolve a grievance
if Respondent did not wish to submit the grievance to arbi-
tration. In discussing union security, the Union's spokes-
person, International Union Representative Perazzo, stated
that the Union "would not sign a contract without the
Union Shop proposal "
The meeting ended with Jones informing the Union's
negotiators to contact Jones for another meeting when the
Union had something further to say. Perazzo in effect
pointed out that there did not seem to be anything more to
say inasmuch as Respondent's proposal was entitled "fi-
nal" 8 and that Jones had characterized it in this fashion
during the meeting. Jones answered, "this is our final pro-
posal for today "
f. The Union's January 20 counterproposal
On January 20, the Union prepared a counterproposal to
Respondent's January 16 proposal. Perazzo transmitted it
by letter, on January 22, to Evan Shaw, the president of
Respondent The letter indicated that the parties had been
fighting for about II years, that it was time they stopped
fighting and worked together. Perazzo explained to Shaw
that his letter was not an attempt to go over Jones' head
but that Perazzo's intent in sending the letter was "to make
the peace and start working together." The letter went on
7 The Union had proposed an increase from four to nine paid holidays
8 In fact, Respondent's January 16 proposal was entitled "Final Counter-
proposals to Union"
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to say that the Union had collective-bargaining agreements
with other employers in the area, which it named, and if
Shaw spoke to those employers he would discover they had
no problems in their relationship with the Union. Perazzo
indicated it was his desire that Shaw be counted among
those employers who were his friends and expressed the
wish that the ill will of the past between the Union and
Respondent be washed away for everyone's good. Regard-
ing the negotiations and the Union's new proposal the let-
ter explained the Union's wage proposal was in line with
the Government's wage guidelines, explained the basis for
the union-security and dues-checkoff proposals, and noted
that "our biggest problem seems to be your hard stand on
union security and checkoff," and asked Shaw to try to live
with the Union's proposed contract for 1 year.
On January 29, Perazzo, by letter, transmitted the Janu-
ary 20 proposal to Jones and asked him to give it serious
consideration, declaring, "we are cutting our proposal
down to the bone in an effort to come up with a contract,"
and also informed Jones that he had taken the liberty of
writing Shaw and that a copy of that letter had been en-
closed for Jones' information The letter concluded with a
request for a negotiation meeting.
The Union in its January 20 proposal told Respondent
in effect that it was dropping its previous proposals and
accepting the Respondent's on the following subjects- paid
vacations, funeral leave, seniority, probationary employees,
maintenance tool replacement, health insurance, bulletin
boards, paid sick leave, and pension plan. Likewise, the
Union indicated it accepted Respondent's health and safe-
ty proposal and was not pressing its demand that Respon-
dent promise to furnish certain employees various kinds of
equipment and to improve specified physical conditions in
the plant, but was only asking that in those instances where
Respondent had agreed to provide equipment and to im-
prove the plant's physical condition that the agreements be
reduced to writing. But for several other subjects on which
the parties had been apart-dues checkoff, grievance arbi-
tration procedure, overtime, leaves of absence, and paid
jury duty-the Union's January 20 proposal remained un-
changed from its previous proposal. And on union security,
paid holidays, shift differential pay, and wages, although
the parties still remained apart, the Union had substantial-
ly reduced its demands. Now it proposed two rather than
five additional paid holidays; a lesser increase in the shift
differential paid the second and third shifts; on wages a
5-percent increase for all employees rather than the 15-
percent increase initially demanded;9 and dropped the de-
mand for strict union security, proposing instead that em-
ployees presently employed did not have to join the Union
but that persons hired after the contract was signed would
have to join the Union after 30 days of employment.
g. The March 17 negotiation meeting
The negotiation meeting which followed the one held on
9 The Union's January 20 wage proposal also dropped the several other
demands made in the Union's initial proposal which in effect would have
increased the wages of certain employees over and above the 15-percent
increase
January 16 took place on March 17 at which time Respon-
dent submitted a counterproposal to the Union's January
16 proposal. Respondent proposed a 1-year contract iden-
tical to the recently expired agreement in all but the follow-
ing six respects. (1) The old contract did not provide that
two employees would be given, on request of the Interna-
tional Union, a leave of absence without pay not to exceed
2 years to take a position with said union, whereas,
Respondent's January 16 and March 17 proposals included
this provision. (2) Neither the January 16 proposal nor the
old contract provided that an ill employee "may" be grant-
ed sick leave for 6 months without pay but without a loss
of seniority. (3) The old contract and Respondent's Janu-
ary 16 proposal provided that an employee can be absent
from work due to a death in the immediate family a maxi-
mum of 3 days without pay, whereas, Respondent's new
proposal increased this to 5 days absence without pay. (4)
The old contract, as well as the Respondent's January 16
proposal, provided that an employee called to the plant to
perform emergency will be paid a minimum of 4 hours pay,
whereas, the Respondent's March 17 proposal provided
only a minimum of 2 hours call-in pay. (5) The old contract
and Respondent's January 16 proposal provided that in the
case of layoff probationary employees would be laid off
first but "if a further reduction becomes necessary the least
senior qualified employee would be laid off next," whereas,
Respondent's March 17 proposal provided that after pro-
bationary employees "the least qualified junior employee
in Classification shall be laid off next." (6) The old con-
tract provided for four paid holidays whereas Respon-
dent's January 16 and March 17 proposals increased this
by one to include New Year's Day.
Respondent's March 17 proposal contained a wage pro-
posal as an attachment. However, this attachment was re-
moved by Jones before the Union's negotiators had the
opportunity to examine it. Jones explained that the attach-
ment was not correct and Respondent would make the
needed corrections and then transmit its wage proposal by
letter to the Union.
The parties did not discuss Respondent's March 17 pro-
posal but agreed that the union negotiators would take the
proposal with them and consider it and await the trans-
mittal of the Company's wage offer before indicating the
Union's position.
Following the meeting of March 17, Jones on the same
day, by letter, forwarded Respondent's wage offer to the
Union. It provided less of an increase in wages than was
proposed by the Company in its previous offer of January
16. Then the Respondent offered a 5-cent-an-hour increase
to the employees employed in approximately 36 out of 100
plus job classifications. The March 17 wage offer provided
for a 5-cent-an-hour increase for only decorating depart-
ment employees employed in 12 job classifications. Also
Respondent for the first time proposed that a new hire
employed in a classification which paid an hourly rate in
excess of the legal minimum wage would be hired, not at
the contractual rate but, "at an hourly rate that is commen-
surate with their previous training and experience." Jones'
March 17 letter which transmitted the Respondent's wage
offer concluded with this declaration:
METLOX MANUFACTURING COMPANY 1321
As we indicated to you and your committee this is the
final offer [referring to the Respondent's March 17
counter proposal] of the company and should the
Union not accept said offer, then we agreed that the
parties have reached an impasse in negotiations.
h. The Union's April 10 proposal
International Union Representative Perazzo, by letter of
April 10, responded to the Respondent's March 17 propos-
al with a counterproposal. Perazzo, in this letter, told Jones
that an impasse had not been reached in the negotiations
and asked Jones to consider the Union's counterproposals
which he was submitting and to meet with the Union for
further negotiations.
An examination of the Union's April 10 proposal reveals
that in all material respects the Union was adhering to its
proposal of January 20 except that the Union's April 10
proposal was more onerous to the Respondent insofar as it
proposed that a new hire be regarded as a probationary
employee for only the first 30 days of employment rather
than 90 days.
i. The May 12 negotiation meeting
The next negotiation meeting after the meeting held
March 17 took place on May 12 at which time the negotia-
tors discussed a number of the areas which were keeping
the parties from reaching agreement.
On seniority when asked why Respondent desired to
change the language of the old contract regarding layoffs,
Jones offered no explanation but simply stated that Re-
spondent "found they could not live" with the language in
the old contract.
On wages Jones indicated that because the Company's
business was "very bad" its wage proposal was the best it
could offer. The union negotiators in response asked if the
Union agreed to forego any wage increase whether Re-
spondent would agree to negotiate wages during the term
of the contract. Jones stated that since the contract would
be only 1 year in duration there would be no point in con-
ducting wage negotiations during its term.
On arbitration the union representatives asked if Re-
spondent would agree to any type of grievance procedure
ending in cumpulsory arbitration. Jones indicated that the
president of Respondent, Shaw, would not accept compul-
sory arbitration. Likewise, Jones stated Shaw would not
accept a contract with a dues-checkoff clause, explaining
to the union negotiators that Shaw wanted nothing to do
with dues checkoff because he felt it was the Union's busi-
ness. One of the Union's negotiators informed Jones that it
seemed that Shaw's attitude was that the employees could
just have their "own little club and [Shaw] does not want to
be involved or aware of us at all " The Respondent's nego-
tiators indicated that this was an accurate assessment of
Shaw's feeling
During the meeting Jones, according to the credible
and undenied testimony of union negotiator Pope, stated
that "we [referring to the Respondent's negotiators] can
negotiate anything except union security, checkoff and ar-
bitration . . . these are the two things that we cannot nego-
tiate on." Continuing, one of the Company's negotiators,
Avery, the assistant to President Shaw, stated that he had
tried to talk Shaw into changing his opposition on some of
these things but that it was impossible to change Shaw's
mind Jones also informed the union negotiators that he
had given Shaw about 12 different versions of arbitration
procedures and that Shaw had rejected all of them. The
union negotiators asked if there was any reason for Shaw's
adamant stand, to which Jones, as Pope's credible and un-
denied testimony shows, replied:
Shaw was much against Unions in general, and that he
was very much against the union because of certain
things that had happened away from negotiations and
away from the strike. [Jones] mentioned particularly
the letter that Tom Perazzo had written to Shaw at the
end of January. . . . Perazzo had gone out of the
chain, [and] that Shaw was a stickler for going through
the right channels. And when people did that .. .
[Shaw] never forgot it.. . .
Also while discussing the Union's demand for compulso-
ry arbitration and that an arbitrator be selected from a list
furnished by the FMCS, Jones commented that the list
furnished by the FMCS was unsatisfactory because his ex-
perience had shown that some of the persons listed were
deceased and others were not available to hear a grievance
for 3 months. It is plain from the record that Jones did not
advance this as a reason for Respondent's refusal to accept
compulsory arbitration; rather, he was simply criticizing
the method the Union proposed to select an arbitrator.
On May 13, following the conclusion of the aforesaid
negotiation session, Jones wrote a letter to Perrazo in
which he stated that the Respondent was willing to contin-
ue negotiating if Perazzo felt that another meeting would
result in progress but that, "otherwise, we can see no good
reason to have another meeting as the company will not
change their position in regard to [union security, wages,
grievance arbitration, or seniority as set forth in its March
17 proposal]."
j. The June 18 negotiation meeting
The next negotiation session took place on June 18. The
meeting opened with Jones declaring that he felt the Union
had stalled long enough and Respondent that day wanted
to know whether the Union intended to accept Re-
spondent's March 17 proposal When the union negotia-
tors answered in the negative Jones replied he felt that the
negotiations were at an impasse. Perazzo told Jones to
"call it whatever you want" but the Union would not sign
the Respondent's March 17 proposal.
k. The December 9 negotiation meeting
Between the June 8 negotiation session and December 9
no further negotiation meetings were held. The next such
meeting, held on December 9, was scheduled at the
Union's request and, at the start of the meeting, Jones stat-
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed that the Respondent was present at the Union's request
and asked what the Union wanted. The Union's negotia-
tors stated they wanted to reach an agreement and to dis-
cuss what they felt were the major areas of disagreement
between the parties, expressing the view that if they could
reach agreement on these subjects that it would be possible
to reach a complete agreement The union negotiators told
Jones that from their point of view the major noncost items
in dispute were union security, dues checkoff, and arbitra-
tion and that the major cost items in dispute were wages,
paid holidays, jury duty pay, vacation pay, and funeral
leave These were the subjects discussed.
Regarding union security the union negotiators asked if
Respondent would consider a "union shop" agreement.
Jones said this was impossible because Shaw was diamet-
rically opposed to forcing anyone to join "anything" if they
did not want to. The Union then proposed, as they had
done in their January 20 proposal, a modified union-secur-
ity agreement which Jones rejected, stating that Shaw felt
the same way about this proposal since it was really forcing
employees to join something.
Regarding a grievance procedure ending in compulsory
arbitration the Union again proposed such a procedure
and Jones again rejected it. When the Union asked what
Respondent's objection was to compulsory arbitration,
Jones answered that the old contract had a provision for
arbitration The Union pointed out that under the old con-
tract Respondent always had refused to arbitrate and it
was the Union's belief that Respondent would never volun-
tarily agree to resolve grievances using an impartial arbi-
trator. Jones stated that under the terms of the old contract
the Union could always strike Respondent over a griev-
ance. The union negotiators stated that the Union did not
want to settle grievances by striking since it was not condu-
cive to a harmonious bargaining relationship and asked
Jones if Respondent had any other ideas for resolving
grievances. Jones did not.
Regarding dues checkoff Jones stated Respondent op-
posed this proposal since it did not want to do the Union's
bookkeeping and felt it should not bear the burden of the
cost of doing this work and, also, that Respondent wanted
to know as little as possible about the employees who were
members of the Union in order to avoid being accused of
discriminating against them.
The major cost items brought up by the Union at this
meeting were a 35-cent-an-hour general wage increase for
all employees, plus an additional 10 cents an hour for each
employee for each year of employment; an increase in paid
vacation benefits; three additional paid holidays; paid fu-
neral leave, and jury duty pay Jones rejected these propos-
als, stating that the wage proposal would cost the Compa-
ny almost one-half a million dollars in the first year, and
that agreeing to pay employees for jury duty was danger-
ous since there is no way of knowing how many would be
called for this duty.
To sum up, the Union's proposals made at this meeting
on union security, dues checkoff, and arbitration remained
unchanged from its January 20 proposal and its major cost
proposals were significantly greater than its January 20
proposals. The Respondent on the other hand stood fast on
its March 17 proposal.
1. The January 16, 1976, negotiation meeting
The parties met on January 16, 1976, at which time Re-
spondent submitted a set of counterproposals which in per-
tinent part read as follows:
1. Union Security: We reject your proposal of a
Union Shop However, we would discuss any other
proposal in writing (sic) you offer but you have stated
you would not sign an agreement without the Union
Shop provision
However, we would agree to inform all new employ-
ees that there is a Union at the Plant when an agree-
ment is signed Also, the Union can post a copy of the
Agreement on their Bulletin Board.
2 Check-Off. Company rejects
3 Holidays. Add Labor Day to the list of holidays.
4. Grievance and Arbitration Company rejects the
Unions' proposal However, we would add a Section
in the old agreement for a Mediation between the par-
ties wherein an outside person would hear both parties
and then make a recommendation but it would not be
binding on either party
5. Wage rates and classifications. See attached
7. All other Sections of the Agreement to remain
the same per the Companys' last offer.
Respondent's wage offer, in substance, provided that all
employees whose hourly wage rate was not increased to
$2.30 on January 1, 1976, pursuant to the minimum wage
law, would receive increases from 5 cents to 30 cents per
hour.
To sum up, the Company's proposal was identical to its
March 17 one except for the fact that Respondent was now
offering an additional paid holiday, a grievance procedure
which required the parties to mediate their disputes prior to
resorting to economic self-help and, instead of proposing a
5-cent-an-hour increase limited to a select group employed
in the decorating department, offered hourly increases
ranging from 5 cents to 30 cents per hour for a larger group
of employees.10
Jones notified the Union that if the Respondent's pro-
posal was accepted by the end of January 1976 that its
terms would be retroactive to January 16, 1976. The nego-
tiators agreed that the Union would consider the proposal
and notify Jones by letter of its decision.
On January 26, 1976, Perazzo wrote Jones that the
Union rejected Respondent's new proposal in its entirety,
explaining that the wage offer did not include a general
wage increase. Perazzo also indicated that the Union
would drop its demand for union security if Respondent
agreed to a general wage increase, dues checkoff, and a
grievance procedure ending in compulsory arbitration.
On February 3, 1976, Jones acknowledged Perazzo's let-
ter and asked that the parties schedule another negotiation
meeting
10 The proposed increase was not a general one inasmuch as a significant
number of employees who, as described above, received a minimum wage
increase January I. 1976, received no increase under Respondent's proposal
METLOX MANUFACTURING COMPANY 1323
The hearing in this proceeding was held on February 10,
1976, pursuant to a complaint which had issued on No-
vember 26, 1975.
2. Conclusions
This is another one of those troublesome cases in which
the Board is asked to evaluate a course of bargaining to
determine whether a respondent was merely engaged in
"hard bargaining" or surface discussions without a sincere
desire to reach an agreement. Respondent contends that
the record demonstrates that this is a case of permissible
"hard bargaining" whereas the General Counsel and
Charging Party urge that it establishes that Respondent
negotiated in bad faith without any sincere desire to reach
an agreement. The applicable principles of law governing
this dispute, while very difficult to apply, are well settled
and are set out herein.
Section 8(d) and 8(a)(5) of the Act require both the em-
ployer and the representative of the employees "to meet at
reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employ-
ment.. .." This duty requires the parties to "approach
the bargaining table with an open mind and purpose to
reach an agreement consistent with the respective rights of
the parties." L.L. Mature Transport Company v. N L.R.B.,
198 F.2d 735, 739 (C.A. 5, 1952) As the court aptly said in
N.L R.B. v. Herman Sausage Company, 275 F.2d 229, 232
(C.A. 5, 1960):
[O]ne must recognize as well that bad faith is prohib-
ited though done with sophistication and finesse Con-
sequently, to sit at a bargaining table, or to sit almost
forever, or to make concessions here and there, could
be the very means by which to conceal a purposeful
strategy to make bargaining futile or fail. Hence, we
have said in more colorful language it takes more than
mere "surface bargaining," or "shadow boxing to a
draw," or "giving the Union a runaround while pur-
porting to be meeting with the Union for purpose of
collective bargaining."
It is, of course, also true that, as the statute states, no
party is required to make concessions, and that no one
need yield any positions fairly maintained. N L R B. v.
American National Insurance Co., 343 U.S. 395, 410 (1952);
H K Porter Co., Inc., Dorton Division-Danville Works v.
N.LR.B, 397 U.S. 99 (1970). But on the other hand the
law is settled:
. . if the Board is not to be blinded by empty talk
and by the mere surface motions of collective bargain-
ing, it must take some cognizance of the reason-
ableness of the positions taken by an employer in the
course of bargaining negotiations. Thus if an employer
can find nothing whatever to agree to in an ordinary
current-day contract submitted to him, or in some of
the union's related minor requests, and if the employer
makes not a single serious proposal meeting the union
at least part way, then certainly the Board must be
able to conclude that this is at least some evidence of
bad faith, that is, of a desire not to reach an agreement
with the Union . In other words, while the Board can-
not force an employer to make a "concession" on any
specific issue or to adopt any particular position, the
employer is obliged to make some reasonable effort in
some direction to compose his differences with the
union , if Section 8(a)(5) is to be read as imposing any
substantial obligation at all. N L.R.B. v. Reed & Prince
Manufacturing Company, 205 F.2d 131, 134-135 (C.A.
1, 1953).
In N.L.R B v. Insurance Agents International Union, AFL-
CIO, 361 U.S. 477, 485, 486 (1960), the Supreme Court
recognized that "[c]ollective bargaining .. . is not simply
an occasion for purely formal meetings between manage-
ment and labor, while each maintains an attitude of `take it
or leave it', it presupposes a desire to reach ultimate agree-
ment, to enter into a collective bargaining contract";
though "the parties need not contract on any specific terms
... they are bound to deal with each other in a serious
attempt to resolve differences and reach a common
ground." And, as the court observed in N.L R.B. v. Gene-
rac Corporation, 354 F.2d 625, 628 (C.A. 7, 1965), "Good
faith bargaining must be evinced by more than superficial
efforts to negotiate a wage agreement. Good faith means
sincerity, candor, and a willingness to negotiate toward the
possibility of effecting compromises." Finally whether a
respondent has bargained in good faith normally rests
upon "a finding of motive or state of mind which can only
be inferred from circumstantial evidence," N.L.R.B. v.
Reed & Prince Manufacturing Company, 205 F.2d 131, 139-
140, and "[T]he previous relations of the parties, antece-
dent events explaining behavior at the bargaining table,
and the course of negotiations [which] constitute the raw
facts for reaching such a determination." Local 833, Inter-
national Union, United Automobile Aircraft and Agricultural
Implement Workers of America [Kohler Company, Interve-
nor] v. N.L.R B., 300 F.2d 699, 706 (C.A.D.C., 1962).
Guided by the foregoing principles and in agreement
with the position of the General Counsel and Charging
Party I cannot characterize Respondent's course of con-
duct in the negotiations as merely "hard bargaining." The
record establishes that Respondent negotiated without a
sincere desire to reach agreement in violation of Section
8(a)(5) and (1) of the Act. In reaching this conclusion I was
influenced by the following considerations in their totality.
(a) Respondent entered into negotiations with a closed
mind on the subjects of union security, dues checkoff, and
grievance arbitration, and throughout the negotiations re-
mained adamant in its opposition to entering into an agree-
ment containing any one of these items. Respondent's posi-
tion on these subjects cannot be described merely as "hard
bargaining"; rather, it is more like the absence of bargain-
ing involving a predetermined resolve not to budge from
an initial decision. Thus, at the May 12 negotiation session
Jones, the Company's labor relations consultant, admitted
that Shaw, the Company's president, had instructed him
that union security, dues checkoff, and grievance arbitra-
tion were nonnegotiable, they were not matters for collec-
tive bargaining. Consistent with this admission Re-
spondent's negotiators at all times during negotiation,
before and after May 12, in effect informed the union neg-
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otiators that it would be a waste of time for them to press
for these proposals. In other words Respondent, which was
obligated to enter into negotiations with an open mind,
had a fixed inflexible position on three significant manda-
tory subjects of bargaining, union security, dues checkoff,
and grievance arbitration, and was obviously only going
through the motions of bargaining about these matters. I
say obviously because so long as Jones was under instruc-
tions from his principle that these subjects were nonnegoti-
able he could not approach negotiations with an open
mind and fairly consider and explore the Union's argu-
ments and possible solutions. This is not a situation where
Respondent was willing to be persuaded and remained un-
persuaded, nor is it a situation where Respondent may
have wished to make the effort to reach common ground
for agreement on the disputed subjects but found no op-
portunity to do so consistent with its strongly held reasons
for taking its position. Here Respondent, as Jones in effect
admitted, entered negotiations with a closed mind, a pre-
determined resolve not to budge from an initial decision
that union security, dues checkoff, and arbitration were
not matters for collective bargaining. This approach to bar-
gaining is not consistent with Respondent's duty to negoti-
ate with a sincere desire to reach agreement on the terms of
a collective-bargaining agreement for it is the type of be-
havior which not only reflects a cast of mind against reach-
ing agreement but which by its nature is calculated to ob-
struct or inhibit the active process of discussion which is
essential to collective bargaining.
(b) Respondent during 1975 did not give the Union a
reason for its inflexible position on union security On dues
checkoff and grievance arbitration, during the May 12 bar-
gaining meeting, Jones reported that Shaw, the Re-
spondent's president, was opposed to dues checkoff be-
cause it was the Union's business and that Shaw's opposi-
tion to arbitration was based on the fact he was "very
much against Unions in general" and particularly was
"very much against this Union" because International
Union Representative Perazzo, instead of dealing solely
with Jones, had written a letter to Shaw in January enclos-
ing the Union's bargaining proposals and asked for Shaw's
cooperation in helping create a harmonious bargaining re-
lationship.
This lack of reliance on inconvenience or other business
purpose for its position that union security, dues checkoff,
and arbitration were nonnegotiable subjects negates any
contention that Respondent's bargaining stance on these
matters was consistent with a good-faith desire to reach
agreement." Indeed, the reason advanced by Respondent
for its stand on grievance arbitration, namely, its hostility
11 I realize that at the December 9 negotiation meeting Jones attributed
Respondent's stand on dues checkoff to the fact that it did not want to do
the Union's bookkeeping or bear the cost and that its opposition to union
security was based on Shaw's desire not to force persons to join "anything "
In considering this explanation I cannot shut my eyes to the fact that they
were offered for the first time immediately following the issuance of the
instant unfair labor practice complaint accusing the Respondent of violat-
ing the Act by, among other things, its bargaining position on union security
and dues checkoff In such an atmosphere, tainted by live controversy, I do
not consider the reasons advanced by Jones on December 9 to justify
Respondent's bargaining position as reliable as his previous explanation or
his previous failure to explain
toward Unions in general and toward the Union in particu-
lar, indicates that Respondent's unyielding stand was moti-
vated out of a desire to undermine the Union.
(c) Respondent failed to make a reasonable effort in any
direction to compose its differences with the Union. Thus,
on January 16 in response to the Union's initial contract
proposal which asked for substantial changes in the old
contract and substantial increases in the employees' wage
and fringe benefits, proposed that the Union reexecute the
old contract without any increase in the employees' bene-
fits except for one additional paid holiday and a 5-cent-an-
hour wage increase for employees working in about 36 of
the Company's 100-plus job classifications. The Union, in
response, on January 20 offered to accept the Re-
spondent's bargaining positions on paid vacations, fu-
neral leave, seniority, pension plan, and maintenance tool
replacement, and substantially modified its position on
union security, paid holidays, shift differential, and wages
in an effort to make its proposals on these subjects more
palatable to the Respondent Respondent's reaction, on
March 17, was to propose a contract which offered the
employees a lesser wage increase than was contained in
Respondent's January 16 proposal. Likewise, Respondent's
March 17 offer, when compared with the one it advanced
on January 16, reduced the employees' call-in pay from 4
to 2 hours a day and rephrased the portion of the seniority
clause concerning layoffs This, despite the fact the Union
previously had agreed to accept Respondent's January 16
call-in pay and seniority proposals. V2 In sum, when the
Union at the early stages of the negotiations indicated a
willingness to bend on issues in order to reach agreement,
the Respondent demanded that the Union accept a propos-
al which was even less desirable than Respondent' s initial
proposal. In addition, as described in detail above, Re-
spondent informed the Union that this proposal, the
March 17 proposal, was not bargainable, that it was
Respondent's "final offer" and if it was rejected Respon-
dent would consider the negotiations at an "impasse."
Since the Union only recently had offered substantial con-
sessions in response to Respondent's initial bargaining pro-
posal, the January 16 proposal, and had not even an oppor-
tunity to consider Respondent's March 17 proposal, the
alacrity with which Respondent interjected the term "im-
passe" into the negotiations casts grave doubts about its
good faith in bargaining to reach an agreement.
The parties thereafter met in 1975 on April 10, May 12,13
June 18, and December 9, with Respondent maintaining
the identical bargaining position advanced on March 17,
12
Respondent's unexplained repudiation of its call-in pay and seniority
proposals previously agreed to by the Union, when taken in context , consti-
tutes additional evidence that Respondent was not engaged in good-faith
barrammg
1 At the May 12 meeting the Union , in an effort to reach agreement,
suggested that since Respondent was justifying its wage proposal on the
ground of poor business that the Union would agree to forego any wage
increase for I year provided they reach agreement on the other terms of a
contract and provided that Respondent also agreed that the contract could
be reopened during its term for wage negotiations Jones, as described
above, rejected this offer and immediately after the meeting notified the
Union that, since Respondent would not change its position on union secur-
ity, wages, grievance arbitration, and seniority, there was no sense in sche-
duling negotiating meetings unless the Union was willing to capitulate on
these subjects
METLOX MANUFACTURING COMPANY
which, as described above, did not constitute a significant
change from Respondent's initial proposal of January 16
and in certain areas-wages and call-in pay-offered the
employees less than the January 16, 1975, proposal. I do
not view Respondent's subsequent January 16, 1976, modi-
fication of its previously inflexible bargaining position as
the product of genuine collective bargaining. The January
16, 1976, proposal was made by Labor Relations Consult-
ant Jones only after the issuance of the instant unfair labor
practice complaint accusing Respondent of bad-faith bar-
gaining and after Jones, who represented Respondent dur-
ing the unfair labor practice proceeding, filed an answer
denying the allegations of the complaint. These circum-
stances, viewed in the context of the whole record, con-
vince me that the January 16, 1976, offer was made more
with an eye toward litigation rather than by any sincere
desire to resolve differences and reach a common ground.
(d) The Union, as described above, was certified by the
Board in June 1963 to represent the Respondent's employ-
ees, yet did not succeed in negotiating a contract with Re-
spondent for almost 11 years. During the course of these
protracted negotiations the Board and the Court of Ap-
peals for the Ninth Circuit, as described supra, found that
Respondent violated Section 8(a)(5) and (1) of the Act and
thereafter, as found by the court, Respondent violated the
court's decree by engaging in additional violations of Sec-
tion 8(a)(5). It was against this background, under the
cloud of the court's contempt citation, that Respondent
reached its first agreement with the Union. Under the cir-
cumstances I believe it would be unrealistic to ignore
Respondent's past history of bargaining misconduct even
though, in the interim between the past misconduct and the
current negotiations, a collective-bargaining agreement
was reached. Accordingly, in evaluating the evidence bear-
ing on the Respondent's motive or state of mind in the
current negotiations with the Union, I have given some
weight-albeit not significant weight-to the Respondent's
past history of bargaining misconduct.
Based on the totality of the aforesaid conduct and on the
record as a whole I find that the evidence preponderates in
favor of a finding that, as alleged in the complaint, the
Respondent since March 17, 1975, has gone through the
motions of negotiations in bad faith without any sincere
desire to reach an agreement with the Union and that by
engaging in this conduct has violated Section 8(a)(5) and
(1) of the Act."'
In concluding that Respondent has bargained in bad
faith in violation of Section 8(a)(5) I have taken into ac-
count the Union's initial position that it would not sign an
agreement unless it contained a union-security agreement.
It is clear , however, that almost immediately thereafter in
its proposal of January 20 that the Union indicated to Re-
spondent it was not inflexible about union security inas-
14 Insofar as the complaint alleges that Respondent since May 12, 1975,
has violated Sec 8 (a)(5) by refusing "to discuss" union security , dues check-
off, and arbitration , I shall recommend that it be dismissed , for, although
Respondent 's bargaining position and its actual conduct during the negotia-
tions with respect to these subjects indicate that Respondent was not bar-
gaining in good faith to reach a complete agreement , the evidence does not
establish that Respondent 's conduct with respect to these three mandatory
bargaining subjects , by itself , constitutes a violation of Sec 8(a)(5)
1325
much as it then offered to enter into an agreement which
contained a modified union-security agreement and there-
after made a proposal which completely omitted a union-
security agreement of any kind. Also, I have considered
that the Union at the December 9 negotiation meeting of-
fered a new proposal which involved cost provisions sub-
stantially greater than its last proposal, thus widening the
area of disagreement between the parties. By this date,
however, the Respondent had engaged in a course of bad-
faith bargaining for almost 9 months. This is not a situa-
tion where the Union by its own conduct has created a
situation which precludes a test of the Respondent's own
good faith. Also, I have construed Jones' January 16, 1976,
proposal on union security, which has been described
above, as an indication that Respondent's bargaining posi-
tion was influenced by the Union's adamant stand on
union security. 15 But , as previously described, early in the
negotiations the Union indicated that its position on this
subject was not inflexible. On January 20, 1975, it with-
drew its demand for strict union security and proposed a
modified union security agreement. In any event, I do not
feel that I can ignore the fact that Jones' January 16, 1976,
statement about union security was uttered for the first
time 12 months after the Union said that it would not ac-
cept anything less than a union shop and only after the
issuance of a complaint charging Respondent with bad-
faith bargaining and with refusing to bargain about union
security. Under these circumstances, Jones' self-serving
statement impresses me more as an afterthought than as a
genuine indication that Respondent's bargaining position
had been influenced by the Union's stand on union secun-
ty.
C. The Unilateral Change in Employees' Terms and
Conditions of Employment
On July 1, 1975, Respondent wrote the Union that effec-
tive July 7, 1975, it was putting into effect the changes in
the conditions of employment which had been part of its
March 17, 1975, proposal which included a wage increase
and an additional paid holiday. In view of my conclusion,
supra, that the impasse in bargaining resulted from the
bad-faith bargaining of Respondent,16 I find that these uni-
lateral changes in wage rates and other terms and condi-
tions of employment constituted a violation of Section
8(a)(5) and (1) of the Act. Indiana Metal Products, a Divi-
sion of Textron Inc., 180 NLRB 606, 607 (1970). Nor did
the Union's failure to respond to Respondent's notice re-
flect a waiver of bargaining on those issues. Such a waiver
must be clear and uequivocal. Here, the Union on July 28,
1975, filed the charge in this case, indicating its conclusion
that, in view of Respondent's bad faith bargaining, to re-
quest further bargaining would be futile. Indiana Metal
Products, id.
15 This is a strained interpretation of Jones' statement
16 The record establishes that, contrary to the General Counsel's conten-
tion, negotiations had reached an impasse on the date Respondent notified
the Union it intended to implement its March 17 proposal
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Refusal To Furnish Information
1. The refusal to allow the Union to inspect employees'
production records
This aspect of the litigation involves Respondent's ad-
mitted refusal to allow the Union to inspect employees'
production records. The Union believed this information
was necessary so that it could intelligently process the
grievances of employees Velma Nilsson, Genevieve Diaz,
and Vicky Kampa. All three had been disciplined for low
production. Nilsson was discharged and the other two were
issued written disciplinary notices. They grieved to the
Union over their discipline.
On June 18, 1975, during a discussion involving
Nilsson's grievance, the Union's representatives told Jones,
Respondent's labor relations consultant, that the Union
wanted to compare Nilsson's production records with the
production records 17 of other employees performing the
same work since the Union thought that the production of
other employees, who were not discharged or disciplined,
was as low as Nilsson's and if this was correct then
Nilsson's discharge was not "just." Jones offered to make
Nilsson's records available for inspection but refused to
allow the Union to inspect records of the other employ-
ees. 18
On September 30 the Union's representatives reiterated
their request for Nilsson's records and for the records of
those employees who had been performing the same work
as Nilsson, and asked for the same type of information in
connection with the grievances of Diaz and Kampa. Jones
took the position that the records of Nilsson, Diaz, and
Kampa would be made available to the Union but no
others.
On October 3 and 7 the Union's International Represen-
tative Perazzo wrote letters to Jones requesting that the
Union be allowed to inspect Nilsson's records as well as
the records of eight or nine decorators-Nilsson had been
employed as a decorator-who were employed at the same
time as Nilsson, explaining that the Union desired to com-
pare their records with Nilsson's inasmuch as the Union
believed that Nilsson had been the victim of discrimina-
tion. Likewise, Perazzo asked that the Union be furnished
with the records of Diaz and Kampa as well as the records
of five other named employees who did the same work as
Diaz and Kampa, explaining in effect that the Union
thought that the warnings issued Diaz and Kampa were
not justified since other employees with the same produc-
tion record had not been disciplined.
On October 8 Jones wrote Perazzo that Nilsson's records
would be made available to the Union, upon request, but
that the Union's request for the records of Diaz and Kam-
pa was denied in part. In this respect Jones noted that one
of the two grievants had left the employ of Respondent, so
17 The Union, the record reveals, made it plain to Jones that it desired to
see only the employees production records not their entire personnel file
le Jones later during the meeting indicated he might consider giving the
Union the records of employees named by the Union The Union's repre-
sentatives declined to name the employees, indicating they wanted a ran-
dom selection
Jones stated, "her records are not available for review with-
out her written permission," but the records of the grievant
still in the Company's employ would be turned over to the
Union upon request. Jones denied the Union's request for
the records of the other employees which the Union want-
ed to inspect to determine whether Diaz, Kampa, or Nils-
son had been discriminated against. Jones' explanation for
this refusal was that the records of these employees were
confidential and would only be released to the Union if the
employees involved gave their written authorization,
On December 9 the Union's representatives reiterated
the above requests for information to Jones, who apparent-
ly took the same position, as above, except that now he
refused to furnish Nilsson's records because, Jones ex-
plained, she was no longer employed by Respondent.
It is settled that "between the expiration of one agree-
ment and the reaching of a new one, . . . employers and
unions must continue to meet and confer to seek agree-
ment in good faith, not only over terms and conditions of a
proposed new agreement, but also over employee griev-
ances which may arise during such hiatus." The Hilton-
Davis Chemical Company, Division of Sterling Drug, 185
NLRB 241, 242 (1970). In this situation a union owes the
employees it represents the statutory duty of fair represen-
tation in the processing of their grievances. Local 933, Unit-
ed Automobile, Aerospace and Agricultural Implement Work-
ers of America (UAW), 193 NLRB 223, 237 (1971). The
union may not process these grievances in an arbitrary and
perfunctory manner. Vaca v. Sipes, 386 U.S 171 (1967);
William Ruzicka v General Motors Corporation, 523 F.2d
306 (1975). Accordingly, when the contract terminated in
the instant case the Respondent and the Union recognized
their statutory obligations; they continued to discuss em-
ployees' grievances despite the absence of any contract.
This part of the instant litigation involves, as described in
detail above, the Union' s requests for information pertain-
ing to three such grievances. The requested information,
which Respondent refused to furnish, was relevant and
necessary to the Union so that it might intelligently process
employees' grievances; the Union needed to inspect the
production records of the grievants and other employees
who performed the same work to determine whether the
Respondent had discriminated against the grievants. Nev-
ertheless Respondent refused to furnish the information. In
this regard it is settled that an employer fails to bargain in
good faith, and thereby violates Section 8 (a)(5) and (1) of
the Act, if he refuses to furnish a union with potentially
relevant information necessary to the proper performance
of the Union's statutory representative function of pro-
cessing grievances. N L R B. v Acme Industrial Co., 385
U.S. 432 (1967) 19
Based on the foregoing I find that Respondent violated
Section 8(a)(5) and (1) of the Act by failing and refusing to
provide the Union with the information requested in its
19 Acme dealt with the narrow issue of "whether the Board must await an
arbitrator's determination of the relevancy of the requested information
before it can enforce the union's statutory right", however, the Court indi-
cated that the principles it ennunciated were a corollary of "the general
obligation of an employer to. provide information that is needed by the
bargaining representative for the proper performance of its duties" Supra,
435-436
METLOX MANUFACTURING COMPANY 1327
letters of October 3 and 7, 1975 Respondent was not privi-
leged to withhold the requested information on the ground
of confidentiality especially where as here its claim of con-
fidentiality was never substantiated. The Detroit Edison
Company, 218 NLRB 1024 (1975); The Ingalls Shipbuilding
Corporation, 143 NLRB 712, 717 (1963); The Hearst Corpo-
ration (Boston Record-American-Advertiser Division) 102
NLRB 637, 645-646 (1953).
2. The refusal to furnish timestudies information
A substantial number of the employees represented by
the Union are compensated under a wage incentive system,
referred to sometimes as the WOLFAC system. General
Counsel contends that Respondent in violation of Section
8(a)(5) and (1) of the Act, refused the Union's request for
"time studies information." The facts which are relevant to
an evaluation of this contention can be briefly stated.
On December 13, 1974, during a negotiation meeting
Union International Representative Perazzo asked Jones,
Respondent's labor relations consultant, for information
"on how the time and motion studies were used at [Res-
pondent]." Perazzo testified he could not remember Jones'
reply but that his request for information "wasn't refused."
On December 23, 1974, during a negotiation meeting
Perazzo testified he asked Jones and Plant Superintendent
Beard to furnish the Union with "some kind of informa-
tion on how they worked the incentive system
(WOLFAC)," so that the employees would be able to un-
derstand the system and know how to compute their incen-
tive earnings. Jones told Perazzo he could go to a library
and get a book which would explain the WOLFAC system
and stated that the employees could easily discover how
much they earned under the incentive system because the
incentive rates were posted on the plant bulletin board.
Perazzo, the sole witness to testify about what occurred at
this meeting, on direct examination made it appear that in
response to his request for information that all that was
said by Respondent's representatives was that he could go
to the library to get the information and that the incentive
rates were posted in the plant.20 Perazzo further testified
that he never received "any of the information that [he]
had asked for" nor did he "ever receive any information"
from Respondent about the incentive system. This latter
assertion is false because, as described infra, by letter of
February 13, 1975, Beard furnished the Union with de-
tailed information about the incentive system. Also, on
cross-examination, Perazzo admitted that there was more
to Respondent's reply to his December 23 request for in-
formation than his testimony on direct examination re-
veals. Reluctantly, Perazzo testified that on December 23,
in reply to his question, Beard "was trying to explain" to
the Union's negotiators about the Company's incentive
plan. Perazzo then admitted that in his prehearing affidavit
submitted to the Board in support of the instant unfair
labor practice charges that he had stated that "at the De-
cember 23 meeting [Jones] brought Don Beard along and
201 realize Perazzo's testimony was undemed but nevertheless am con-
strained to state he did not impress me as a reliable witness His testimony
was uncertain and vague
at that meeting Beard explained this new incentive program,"
which had never been previously discussed by the Union's
negotiating committee "other than asking and getting an
explanation from Jones and Beard." Based on the foregoing
I find that at the December 23, 1974, meeting Beard in
response to Perazzo's request verbally explained how the
Respondent worked its wage incentive system.
On January 18, 1975, the Union's recording secretary,
Jan Pope, wrote Plant Superintendent Beard that the
Union "to function properly" needed among other things
the following information "in writing":
The manner in which hand decorator's wages are
computed including the standards used to determine
how much, if any, bonus for number of patterns
learned is given, how the 145% limitation works, how
and on what patterns a new pattern allowance is giv-
en, and any other information which will help the dec-
orators to compute their earnings under the present
system. We would also like to know whether or not
Artware Decorators have their wages computed in the
same manner and if not we need to know how their
earnings are computed.
Beard, by letter of February 13, 1975, answered Pope's re-
quest in detail. Beard's response, almost two pages in
length, has been attached to this Decision as "Appendix
A."
On May 20, 1975, Respondent's plant manager, Cleland,
by letter, notified Pope that at the negotiation meeting of
May 12, 1975, Pope had asked for answers to several ques-
tions which Cleland was listing in his letter along with his
answers. One of the questions attributed to Pope is, "many
employees do not know how to figure their pay under the
WOLFAC system Could we [referring to Respondent] ex-
plain it to them better?" Cleland replied, "Yes, we will have
our I.E. department work up a simple explanation of how
it works and we will also arrange to better inform them in
person."
On June 18, 1975, at a negotiation meeting Perazzo, as
Pope testified, informed Jones that the Union was "still
waiting for the information on the time studies that [the
Union] asked for to learn how you use the time studies."
Jones replied that if Perazzo wanted to learn about the
Company's incentive system "to get a book out of the li-
brary."
It is undisputed that Respondent at a date not shown in
the record informed the Union, by a letter not in evidence,
that the Company would allow a qualified engineer, re-
tained by the Union, to go through the plant with the
Company's engineer to study the Company's incentive sys-
tem. There is not a scintilla of evidence however that the
Union ever requested that Perazzo or any other union rep-
resentative or agent be allowed access to the plant for the
purpose of studying the wage incentive system.
The foregoing constitutes the whole record on the issue
of whether, as contended by the General Counsel, Respon-
dent refused to furnish the Union with "time studies infor-
mation." The sole evidence within the 10(b) limitation peri-
od which colorably supports this contention is Pope's
credible and uncontradicted testimony that on June 18,
1975, Perazzo told Jones that the Union was, "still waiting
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the information on the timestudies that [the Union]
asked for to learn how to use the time studies," and that
Jones replied that Perazzo should educate himself about
the Company's wage incentive system by reading a library
book. Neither Perazzo nor Pope, the only witnesses who
testified in this proceeding, explained what the specific in-
formation was which the Union had previously requested
and which Respondent had failed to supply. The record, as
described above, reveals that whenever the Union prior to
June 18 had asked for information about the wage incen-
tive system that its requests were honored. Thus, on De-
cember 23, 1974, when Perazzo asked for "some kind of
information on how [Respondent] worked the incentive
system," Superintendent Beard verbally provided the infor-
mation. On January 18, 1975, when the Union asked Re-
spondent for a written explanation about the way the in-
centive system applied to certain jobs, the Company's plant
superintendent supplied in writing detailed information
[Appendix A] and offered to meet in his office with anyone
from the Union to explain any other questions pertaining
to the incentive system. Then, on May 20, 1975, in re-
sponse to the Union's request that Respondent explain to
the employees how to figure their pay under the incentive
system, the Respondent's plant manager informed the
Union that Respondent's industrial engineering depart-
ment would work up a simple explanation for presentation
to the employees.21
Based on the foregoing I am of the opinion that the
evidence fails to preponderate in favor of a finding that
Respondent refused a request by the Union for informa-
tion which would enable the Union to understand and
evaluate the Respondent's piecework rates and standards
on which they are based, rather the record reveals that
whenever the Union asked for this type of information it
was furnished Accordingly, I shall recommend that the
complaint be dismissed insofar as it is broad enough to
include the allegation that Respondent violated the Act by
refusing to furnish the Union with "time studies informa-
tion."
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union, International Brotherhood of Pottery &
Allied Workers, AFL-CIO-CLC, and its Local 329, are
labor organizations within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees, includ-
ing shipping and receiving employees and leadmen em-
ployed by Respondent, exclusive of all office clerical em-
ployees, watchmen, guards, designers, professional
employees and supervisors as defined by the Act, consti-
tute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
21 1 do not regard this as a request that Respondent furnish the Union with
information it was a request that Respondent furnish an explanation di-
rectly to the employees
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid unit within the meaning of Section 9(a) of the
Act.
5. By refusing on or about March 17 , 1975, and thereaf-
ter, to bargain in good faith with the Union as the exclusive
bargaining representative of its employees in the aforesaid
appropriate unit, and by unilaterally changing wage rates
and other terms and conditions of employment without
having bargained to a good -faith impasse on these subjects,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. By failing and refusing to provide the Union with in-
formation requested in its letters to Respondent dated Oc-
tober 3, 1975, and October 7, 1975, Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices affecting com-
merce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effec-
tuate the policies of the Act
I shall recommend that, upon request, Respondent im-
mediately supply the Union with the information requested
in the Union's letters to Respondent dated October 3,
1975, and October 7, 1975. The fact that two of the griev-
ants are no longer employed by Respondent does not moot
their grievances and the Union's need for the information.
One purpose of the Union in requesting the information
pertinent to Nilsson's grievance was to determine whether
Nilsson had been discriminated against and if so to con-
vince Respondent to reinstate her. The passage of time has
not made the requested information any less relevant for
this purpose. Likewise, the grievance of the employee who
received a written disciplinary warning and thereafter left
Respondent's employ is not moot insofar as the Union,
after analyzing the requested information, may be able to
convince the Respondent that the grievant was treated un-
fairly, when compared to others, and that the blot on her
employment record-the warning notice-should be re-
moved. But in any event, even assuming that all three of
the grievants are no longer employed by the Respondent or
have lost all interest in their grievances it does not render
the grievances moot and make the Union's need for the
information academic, for, in processing grievances like
the ones involved herein, the Union is "safeguarding not
only the particular employee's interest, but also the inter-
ests of the entire bargaining unit by exercising vigilance to
make certain that the employer does not initiate or contin-
ue a practice of imposing punishment unjustly." N.L.R.B.
v. J. Weingarten, Inc., 420 U.S. 251, 260-261 (1974).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
METLOX MANUFACTURING COMPANY 1329
ORDER 22 APPENDIX A
Respondent, Metlox Manufacturing Compai.y, Manhat-
tan Beach, California, its officers, agents, successors, and
assigns, shall-
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
International Brotherhood of Pottery & Allied Workers,
AFL-CIO-CLC, and its Local 329, as the exclusive repre-
sentative of the employees in the unit described herein-
above.
(b) Unilaterally changing wages and other terms and
conditions of employment without having bargained to a
good-faith impasse with the Union on these subjects.
(c) Refusing to furnish relevant information needed by
International Brotherhood of Pottery & Allied Workers,
AFL-CIO-CLC, and its Local 329, to represent the em-
ployees in the unit described hereinabove.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2 Take the following affirmative action, which is
deemed necessary to effectuate the purposes of the Act:
(a) Upon request, bargain collectively in good faith with
the International Brotherhood of Pottery & Allied Work-
ers, AFL-CIO-CLC, and its Local 329, as the exclusive
representative of the employees in the unit described here-
inabove, and if an agreement is reached embody such
agreement in a signed contract.
(b) Upon request, furnish the Union with the informa-
tion requested in the letters from the Union dated October
3, 1975, and October 7, 1975.
(c) Post at its place of business in Manhattan Beach,
California, copies of the attached notice marked "Appen-
dix B.1123 Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly signed
by the Respondent's representative, shall be posted by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material
(d) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found
22 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
23 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
2. In regard to decorators' pay calculations, all decorat-
ing standards are established in standard hours per 100
pieces, using the MTM system for measurement. These
standards are available to you in the foremen's office
To calculate a decorator's pay, take the number of units
completed, and multiply by the standard for that item. Do
this for all items completed. Add the appropriate special
allowances to determine the total standard hours earned.
Multiply the total standard hours earned, times the job
rate; the result would be the money earned under the in-
centive system. If the amount of money earned under the
incentive system is less than the hours worked, multiplied
by the decorator's hourly base pay, the greater amount will
be paid.
It was asked about our bonus that rewards each decora-
tor for the number of patterns she can decorate proficient-
ly. To be considered proficient on a pattern, a decorator
must decorate that pattern at an index of 100 percent or
more with acceptable quality. This means, a decorator
must earn this index for a minimum of 40 hours. When a
decorator feels that she has qualified on a particular pat-
tern, she is to notify her department head. He, in turn, will
request a review for this particular person. The payroll
committee will verify from the records, her productivity,
and verify that her quality is acceptable. She then will be
given credit for that particular pattern.
The bonus for number of patterns learned is as follows:
Decorator A-1 to 4 patterns-no Bonus
Decorator AI-5 to 9 patterns-10 cents per hr. Bo-
nus
Decorator A2-10 to 14 patterns-20 cents per hr.
Bonus
Decorator A3-15 to 19 patterns-30 cents per hr.
Bonus
Decorator A4-20 to 24 patterns-40 cents per hr.
Bonus
Decorator A5-25 or more patterns-50 cents per
hr. Bonus
This additional pay for each decorator classification will
be added to her regular earnings, and will not be a part of
her fob rate on which incentive earnings are calculated.
In regard to the 145 percent index limitation, it is applied
as follows.
The total hours earned for the week are divided by the
total hours worked for the week. If this index is in
excess of 145 percent, then the total hours worked will
be paid at 15 percent times the job rate.
Under the Metlox-Wofac incentive system, time stan-
dards were developed so that an average experienced
decorator, working with good skill and effort, follow-
ing the prescribed method, and within reasonable
quality levels, can earn 125 percent. It is recognized
that an exceptional decorator may exceed this aver-
age, and may earn up to 145 percent. Earning above
this level may not provide consistent quality, and
therefore, a bonus will not be paid above the 145 per-
cent level.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We were asked a question on "new pattern allowance."
A new pattern introduced to the Decorating Department is
considered new for 6 months from its date of introduction
into the Decorating Department. During this time, a deco-
rator assigned to this pattern will, for the first 40 hours, be
paid her incentive earnings, or her average hourly earnings,
whicnever is greater, based on the previous 6 month period
ending June 30 or December 31.
For the next 120 hours, the decorator will be paid 1 /2 of
her average hourly earnings, and 1 /2 of her actual earnings
on the pattern, or her actual earnings on the pattern,
whichever is greater. In no event will the decorator be paid
less than her hourly base pay.
Regarding your questions about Artware decorators.
The Artware decorators have a base rate the same as the
dinnerware decorators, but in our Artware department, we
have no patterns such as we have in dinnerware, so conse-
quently, there is no pattern bonus. Their standards are set
in standard hours per 100 units, and their pay is calculated
the same as it is calculated for the dinnerware decorators.
If anyone has a specific question, I will be happy to meet
with them in my office, and explain further.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively in good
faith with the International Brotherhood of Pottery &
Allied Workers, AFL-CIO-CLC, and its Local 329, as
the exclusive representative of our employees in the
appropriate bargaining unit described below and if an
agreement is reached embody such agreement in a
signed contract.
WE WILL, upon request, furnish the Union with the
information it requested in its letters to us dated Octo-
ber 3, 1975, and October 7, 1975.
WE WILL NOT refuse to bargain collectively in good
faith with the Union as the exclusive representative of
the employees in the bargaining unit described below.
WE WILL NOT unilaterally change wages and other
terms and conditions of employment of the employees
in the bargaining unit described below without having
bargained to a good-faith impasse with the Union on
these subjects.
WE WILL NOT refuse to furnish relevant information
needed by the Union to represent the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of rights guaranteed them in Section 7 of the Act.
The bargaining unit is: All our production and
maintenance employees, including shipping and re-
ceiving employees and leadmen , exclusive of all of-
fice clerical employees, watchmen, guards, design-
ers, professional employees and supervisors as
defined in the Act.
METLOX MANUFACTURING COMPANY