Midwest Casting Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1971

194 N.L.R.B. 523 (N.L.R.B. 1971)

MIDWEST CASTING CORP.
Midwest Casting Corporation and Local Union 42 of
the International Molders and Allied Workers
Union, AFL-CIO. Case 26-CA-3889
December 14, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On August 6, 1971, Trial Examiner Ramey Dono-
van issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and
a supporting brief, and the Respondent filed a brief
answering the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C A 3). We have carefully examined the record and
find no basis for reversing his findings.
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN , Trial Examiner : The charge was filed
on January 12, 1971, against Midwest Casting Corporation,
herein Respondent or the Company, by Local Union 42 of
the International Molders and Allied Workers Union,
AFL-CIO, herein the Union . A complaint issued against
Respondent on February 26, 1971, alleging refusal to
bargain with the Union in violation of Section 8(a)(1) and
(5) of the Act in five specified respects . Respondent's
answer denied that it had refused to bargain . The case was
tried in Little Rock, Arkansas , on April 19 through 21,
1971.1
1 Respondent's motion to correct the record is granted The Trial
Examiner hereby corrects page 6, lines 5-25, and page 7, lines 1-8, where
witness Swafford is incorrectly shown to have been questioned by the Trial
Examiner instead of by Mr Clark, the General Counsel.
2 Respondent is a subsidiary of Stephens, Incorporated , an organization
FINDINGS AND CONCLUSIONS
1. JURISDICTION
523
Respondent is a corporation with a place of business in
Mabelvale, Arkansas, where it operates a foundry that
manufactures metal plates for pianos and counter weights
used in forklift trucks.2
During a representative 12-month period, Respondent, at
its Mabelvale operation, purchased and received goods and
materials, valued in excess of $50,000 directly from points
outside Arkansas, and, during the same period, it sold and
shipped products valued in excess of $50,000 from its
Mablevale plant to points outside Arkansas.
It is found that Respondent is an employer engaged in
commerce within the meaning of the Act and that the
Union is a labor organization within the meaning of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent has had contractual relations with the Union
over a period of years. The most recent contract was for the
period from December 4, 1967, to December 3, 1970.
Prior to 1970 the contracts between the parties had been
negotiated by management with the union representative
and a committee of plant employees. Neither side had
attorneys participating in contract negotiations. However,
during the summer of 1970 Respondent consulted Attorney
Lyon regarding a seniority problem.3 In the course of going
into the matter, Lyon and Respondent decided that the
contract was unclear on seniority since it was a blend of
plantwide and group seniority. Further examination of the
entire, contract led to the decision that, since contract
negotiations were anticipated later in the year, Lyon should
review the entire contract. In conjunction with manage-
ment, Lyon studied the contract and then drafted an
extensively revised contract that was intended to clarify the
relationship between the contracting parties and to alter
aspects of the contract that management wished to change.
The foregoing remained an intramural matter between
Respondent and its attorney until, as we shall see, contract
negotiations commenced in November 1970 between
Respondent and the Union.
By letter of September 14, 1970, Swafford, the union
representative, wrote to Respondent and stated the Union's
desire "to open the agreement for renegotiations on terms
and conditions for a new contract."
In acknowledging receipt of , the Union's request to
reopen the contract, attorney Lincoln also, requested an
outline of the union, proposals for a new contract. On
October 15, 1970, Swafford went to the plant and handed
Coulter, the plant manager, a longhand writing of 18 union
contract proposals. Not unnaturally, the 18 proposals
involved the granting of improvements and advantages to
the Union and the employees, e.g., 75 cents per hour total
otherwise not described in the record.
8 Lyon is with the law firm of House, Holmes and Jewell. Other
associates of that firm who appear in the contract negotiations between the
Respondent and the Union in 1970-71 are Lincoln and Lovett.
194 NLRB No. 91
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increase in 18 month contract; increase in reporting
pay; three additional. holidays;..supervisors ,to performsno
unit work; temporary transferee from lower to higher
classification to receive higher rate, but temporary
transferee from higher to lower classification to retain his
higher rate.
The Negotiations
By mutual agreement the parties met for the first time in
contract negotiations on November 6, 1970, at a motel in
Little Rock. The respective negotiators, at this and
subsequent sessions were: For the Union: Swafford, district
representative of the Union from Harrison, Tennessee; and
an employee committee of six of Respondent's employees,
including officers of the local union. For Respondent:
attorneys Lincoln and Lyon; Coulter, plant manager;
Schutter, plant superintendent; Sims, secretary-treasurer of
Respondent; and Millwee, a management consultant of
Stephens, Incorporated, parent of Respondent, who
worked closely with Respondent's management on finan-
cial aspects of the local operation. For the most part,
Swafford was the union spokesman and Lincoln, the
spokesman for Respondent.
At the November 6 session, Respondent stated that it had
a complete contract proposal to submit to the Union and it
gave the Union a written copy of its proposed contract. In
order to afford the Union time to acquaint itself with the
proposed contract, the Respondent withdrew to another
room for about an hour. The parties then convened
together and began to go through the proposed contract,
article by article.4
By questions and mutual discussion, the parties covered
about the first five articles of the proposed contract on
November 6. For instance, the Union had some questions
about part of the recognition clause, but, as Swafford
testified, when the matter was explained by Respondent
there was no problem. The proposed representation article
provided for five union plant committeemen, but it was
mutually agreed that the Union would have six committee-
men. The proposed management rights article was more
detailed and elaborate than the corresponding clause in the
old contract. The Union raised various questions about
certain sections of the article but told Respondent that its
position would depend on what was provided in other
contract articles. The discussion of management rights was
therefore of a limited nature at this session. The proposed
no-strike clause was also more detailed and exacting than
its counterpart in the old contract. The Union voiced
objection to,certain' time limits in the clause regarding
union warnings and orders to illegal strikers. The matters
were discussed, but not in depth. The parties were in effect
endeavoring to cover as many articles of the contract as
possible byway of a light survey-of theground and had not
endeavored to resolve matters that presented serious
4 The old contract consisted of 14 articles in 17 pages. Respondent's
1970 proposed contract embraced 23 pages and 20 articles Testimony as to
what was said and done concerning each proposed article and subdivisions
thereof at each of the bargaining sessions was furnished by Swafford, the
General Counsel's sole witness at the hearing. Lyon performed a
corresponding function as Respondent's witness Various other witnesses of-,
Respondent testified on this or that particular bargaining session or event
divergence. This first session ran from about 4:30 p.m. to 9
.p.m.
At the November 6 session, Respondent proposed that
the parties meet again on the following day, Saturday.
Swafford said that he would not be able to do so and could
not meet again until after November 14. A meeting, was
therefore scheduled for Monday, November 16. The
Respondent suggested that the bargaining be held during
the day rather than confining the bargaining to evening
sessions. Swafford refused unless Respondent agreed to pay
the six employee members of the union negotiating team
the wages they would lose by participating in negotiations
instead of working. Respondent refused to do so.
On November 16 the parties again met from approxi-
mately 5 to 9 p.m. They discussed article VI, Hours and
Overtime, of the Respondent's proposal. The Union voiced
objection to some of the provisions in the article. The
matters were discussed. Some were agreed upon and some
were not. Where, for instance, the Company proposal
provided that in the event of slack business, the Company
could reduce plant operations without consulting the
Union before laying off employees for lack of work, it was
agreed to, when the provision was added that seniority
would be followed. Another provision would allow
supervisors to perform unit work. The Company said that
its operations required that it have this flexibility if a
particular situation arose. To meet the union objection the
Company said that it would provide that supervisors would
not work if by doing so any unit employee would be
deprived of straight time hours. The Union did not agree.
With respect to wages, the Respondent's written contract
proposal provided for a 5-cent increase in 1970, 1971, and
1972, except for laborers. At Respondent's suggestion on
November 16, it was agreed to defer any discussion of
wages in article VII until the parties first attempted to agree
on the language of other parts of the contract. The parties
discussed a transfer provision in article VII. The Compa-
ny's proposal provided that an employee temporarily
transferred to a higher paying job should receive the higher
rate after 1 week and if he remained on such a job for more
than 6 months he would be reclassified to the higher rate;
and if an employee was transferred to a lower paying job
for more than 2 days he would receive the lower rate. The
Union contended that whenever an employee was trans-
ferred to a higher paying job, he should receive the higher
rate but that when transferred to a lower paying job his
present rate would not be lowered. The Company said it
would change the 2 days to 1 week as the time before a
transferee to a lower paying job would be paid at the lower
rate but that it felt that on transfers rates should, go dawn as
well as up depending on whether the transfer was to a
higher or to a lower paying job.
A section of the Company's proposed article VII
provided that. the Company could grant merit wage
increases in its sole discretion but would advise the Union
Although the Examiner heard all the testimony at the hearing and has read
the complete transcript of testimony, he deems it neither feasible nor
necessary to describe the respective statements or positions by each party
on each and every article discussed at the various sessions . We shall
describe the respective positions by citing specifics from time to time in
order to reflect what, in our view, was the nature of-'the bargaining.
MIDWEST CASTING CORP. 525
when such increases were made. The Union said that such
increases might be discriminatory and the Company agreed
to provide that increases would be on a nondiscriminatory
basis.5
Article VIII dealt with checkoff of union dues. The
Company's written proposal was substantially identical to,-
the checkoff provision in the old contract, i.e., employee
written authorization was required and such authorization
could be cancelled by the employee at any time upon
notice. The _Union's proposal to the Company provided, in
substance, that the authorization would be irrevocable for 1
year or until the expiration of the contract whichever
occurred sooner. According to Swafford, Lincoln stated on
November 16 that the matter of checkoff depended on the
Union's cooperation with the Company on the language or
provisions in other sections of the contract. The checkoff
was discussed along the Imes of the respective proposals but
not in great length, or to any dispositive point.
On article IX dealing with discharges the Union agreed
on most of the enumerated reasons for discharge, e.g.,
drinking on the job, etc., but raised a question about
violation of local city or state ordinances being a cause for
discharge. The Union objected to a provision that, if upon
arbitration, a discharge was found to be warranted and
backpay was ordered, the backpay should be offset by
intermediate earnings. At a subsequent meeting the Union
agreed to this provision.
A meeting was arranged for the following day, November
17. Respondent proposed that the meeting be held during
the day. The Union refused unless the Company would pay
the wages of the employee members of the union
negotiating committee. The Company said that it would
pay half of the wages but the Union said that it had no
funds to pay the balance. The Company said that there
should be longer bargaining sessions because the expiration
date of the old contract was near. However, the meeting
again commenced about 5 p.m. and adjourned about 9 p.m.
On November 17 the parties discussed article X,
Seniority. The company proposal was that on layoffs,
recalls, and promotions the Company would consider
length of service, skill, ability, and aptitude and that length
of service would govern if the other factors were relatively
equal. However, the Company, except in cases of
discrimination, could determine skill, ability, and aptitude
and its determination thereon was excluded from the
grievance procedure. The Union objected to the latter
provision. The Company proposal was that seniority would
be lost by 6 months continuous layoff. Although the old
contract provided for loss of seniority after 12 months-
layoff the Union proposed that this be eliminated and that,
in effect, seniority would not be lost by layoff of any
duration. Subsequently, the parties agreed that seniority
would be lost after layoff for 12 months.
On article XI the Company proposal eliminated job
postings which had been in the old contract. Instead it was
5 As we have earlier indicated the proposed contract had a substantial
number of articles as well as subdivisions of articles. We are not attempting
to describe everything said on each article and section thereof but, in our
opinion, both the Umon and the Company were stating and discussing
their respective positions. Each side displayed flexibility on matters where
it deemed that it could, having in mind their respective views and positions
on what they considered to be items of major or minor importance.
provided that the Company could promote or demote with
notice to the Union and with the reasonableness of the
Company's decision being subject to the grievance and
arbitration clause. The Union wanted job posting. The
Company said that job posting had not worked well and
that there had been problems about whether the job had
been posted correctly or long enough and no one had been
satisfied. Also, according to the Company, the job posting
was time consuming and there was too much of a time lag
when the Company needed to fill a job promptly.
With respect to article XII, Holidays, the Company
proposed six holidays as in the old contract. The Union had
proposed three additional holidays, Good Friday, day after
Thanksgiving, and Christmas Eve. The Company said that
the article involved money and suggested that, like wages, it
be passed over temporarily until the language in the other
contract articles could be worked out. This was done.
The parties had no problems with article XIV, Rules and
Regulations. On article XV, Grievances, there was
substantial agreement after the Respondent acquiesced in a
union request regarding visitation rights at the plant for the
union representative. Article XVI, Arbitration, provided,
inter alia, that if the union and the Company were unable to
agree on an impartial arbitrator, a list of possible
arbitrators would be sought from the local chancellor. This
provision had been in the old contract. However, at the
November 17, 1970, bargaining session the Union wanted
to substitute the Federal Mediation Service for the
chancellor and explained its reasons therefor. Respondent,
by the next meeting, agreed to this change. Article XVII,
Classifications, was passed over since it dealt with job
classifications and rates and was therefore a money item.
Consistent with Respondent's suggestion at an earlier
meeting, the parties were endeavoring to reach agreement
on nonmoney articles before turning their attention to
money matters. Article XVIII, Conformity to Existing or
Future Laws, and article XIX, Miscellaneous, apparently
merited no attention. The last article, article XX, Duration
of Agreement, as set forth in the company proposal,
provided for a 3-year contract from December 4, 1970. The
Union said that 3 years was too long a period.
At some point in this November 17 session, as he had
done previously, Lincoln urged that the negotiations be
held during the daytime. Either at this or at a prior meeting
Lincoln said that the bargaining sessions should be longer
and that the 3 to 4 hours in the evening were not enough.
On November .17 Lincoln stated that he did not consider
that the Union was carrying its responsibility as it should
regarding negotiations. He also said that he did not feel that
the Union was cooperating with the Company in trying to
reach agreement on some of the contract articles.
According to Swafford, Lincoln specifically mentioned the
Company's no-strike clause in connection with his remark
about lack of union cooperation.6 Lincoln said that if the
6 Briefly stated, the Company's proposal had been that in the event of
an illegal walkout the International representative of the Union should take
certain specific steps within certain time periods in communicating with
employees regarding the illegal walkout. The parties differed over such
matters as the number of days within which the union representative
should act and whether by registered, certified, or regular mail and so
forth.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union did not show more cooperation, the Company would
withdraw its checkoff proposal.
The following is a description of the Union's position as
given by Swafford to Lincoln in response to the above
matters raised by Lincoln at various meetings and as
described by Swafford in his testimony. The Union would
not meet during the day unless the Company paid the six
employees on the union committee the wages they would
lose by not working. The Company refused to do this but
did offer to pay half the wages. This was not acceptable to
the Union because it said it did not have the money to pay
the other half and apparently the committeemen were
unable or unwilling to forego half their pay.7 As to evening
sessions, the Union would not meet beyond about 9 p.m.
because, Swafford said, the committeemen had worked all
day and then had to be at work at 7 a.m. the next morning.8
With respect to Swafford's schedule and consequent
unavailability of the union contingent to meet as frequently
as proposed by the Company, Swafford said he told
Respondent "that I had other negotiations I had to take
care of, grievances to process, and that I had spent as much
time on this negotiation as I had on any other negotia-
tions." Swafford testified that he was district representative
of the Union in a five-state area. He attended meetings of
various local unions and handled or participated in various
grievance proceedings and negotiations in a wide spread
geographical area.
At the November 17 meeting the parties also discussed
the date of their next meeting. Swafford said that he would
not be available until December 1 because of various
commitments,9 A meeting for December 2 was therefore
arranged and was held from approximately 5 to 8:30 p.m.10
On December 2 the parties went through the Company's
proposed contract that they had been considering through-
out the previous sessions . They narrowed matters to those
on which they, disagreed and also confronted the money
issue. The Company's proposal as originally submitted
provided for a 3-year contract with a 5-cent-an-hour
increase in the first year of the contract and 5 cents in each
of the 2 succeeding years. On December 2, the Company
supplemented this proposal by adding a 5-cent incentive for
each hour worked to all employees who worked a full 40-
hour week.ii This incentive did not apply to laborers, of
which Swafford estimated, there were 4 or 5 in the work
force of about 90 or 100.
The Union's proposal was for a 75-cent-an-hour increase
in an 18-month contract. The Union then said it would
agree to a 60-cent package in an 18-month contract. The
4 In prior years the Company had paid the committee for attendance at
daytime negotiations. The Company states that this was because there were
only three committeemen and now there were six.
8 Swafford testified that on one occasion the Company had suggested a
Saturday meeting but that he declined because of a prior commitment. On
an occasion when the Company had suggested a Sunday session Swafford
said that he could not get back to the area on that particular Sunday.
9 The matter of meeting during the day was also raised Swafford's
position regarding his availability as well as the issue of daytime meetings
has been described at some length above.
iU On November 17 the Union suggested to the Company that a Federal
mediator attend the next meeting. It appeared that the Union had already
contacted a particular mediator. The Company said that it had no
objection to this mediator's participation The mediator, however, first
appeared at the December 3 meeting, infra
u The record is clear that the Company had a severe absenteeism
Company asked Swafford if he considered his wage
proposal to be a responsible offer. He said, yes, and that if
the Company thought that 60 cents was out of the ball park
then "We were wasting our time." The Company asked
what 60 cents represented in the hourly rate. After some
computation, Swafford said that it was 50 cents per hour
plus 10 cents in fringe benefits, such as three additional
holidays and other fringes. The Company then made its
own calculation and figured the fringe benefits at 22 or 23
cents or a total package of 72 or 73 cents rather than 60.
While the Union did not oppose the Company's 5-cent
incentive, it said that it did not count the 5 cents as part of
the economic package. The Company disagreed, saying, in
effect, that it was 5 cents to be paid by the Company and
received by employees.
The Company said that it would make an additional
wage proposal. Instead of 5 (cents), 5, and 5, it was offering
5, 7, and 10 plus the 5-cent incentive. Swafford said that this
was not getting anywhere and would not settle the contract.
The Company said that 60 cents was excessive. The Union
said that it would not buy (accept) the Company's offer.
The Company said it withdrew its entire contract proposal.
Swafford said, you mean we spent four meetings on the
contract and you now withdraw it. Lincoln said, yes, and
stated that the Union had not manifested cooperation and
responsibility in trying to reach an agreement. Swafford
then proposed that the parties discuss the union proposals.
The Company agreed.
In the course of the discussions regarding the 18 items
that the Union had set forth in its contract proposal not
much progress was made. Many of the items had already
been involved in previous discussions since the Union, in
objecting to company contract proposals, would directly or
indirectly, refer to its own demands, e.g., one of the union
proposals was that in the event of slack business the plant
hours be reduced to 32 before any layoffs were made; the
Company rejected this because it said it needed more
flexibility and that sometimes one department'or section
would have sufficient work whereas another department
might have no work. This matter of reducing hours and
layoffs had been discussed at prior meetings when the
Company's proposals were being considered. Another
union proposal was a 75-cent raise in an 18-month contract.
The Company rejected this. The wage topic, of course, had
first been the subject of discussion between the parties
regarding the Company's wage proposals and in the course
thereof the Union's wage demands had been put forward.
On a number of the union proposals,, the Company said
problem and it had many employees who absented themselves for one
reason or another and did not work a full 40-hour week. The incentive
program offered by the Company therefore had a modest objective, namely
to encourage employees to work a full workweek which presumably an
employer is entitled to expect, albeit this employer was also offering 5 cents
an hour more per hour to all employees who worked a full week. 'T'his
incentive program is to be contrasted with, for instance, an employer on a
piecework system Under such a system an employee has a quota of say 50
units per hour in order to earn a nummum rate. Units produced above the
quota are paid for at an incentive rate. If the employer offers a union in
such an industry an incentive rate or a higher incentive rate, it may well
entail a substantial increase in the speed at which employees will have to
work to cam the incentive since the minimum quota will be geared to any
incentive offered. An incentive; therefore, in such circumstances, is not
necessarily as beneficent as it may appear on its face.
I
MIDWEST CASTING CORP. 527
that its position would depend on what was agreed upon on
other items, e.g., three additional holidays; the Company
said that the wage rate agreed to by the parties would have
a bearing as to the granting of additional holidays.
One of the union proposals was for a checkoff,
irrevocable for a year or for the contract duration. The
matter of checkoff had been discussed in prior bargaining
sessions when the contract proposed by the Company was
being discussed. On December 2 when the union checkoff
proposal came up, the Company would not agree to the
union proposal. The Company also said that it had only
one secretary in its office to handle all the office work and
in view of the Union's lack of cooperation in not devoting
enough time to negotiations the Company felt it should not
have the burden of collecting dues and it now proposed that
the Union collect its own dues.
Another of the Union's contract proposals was for a
"Pension Plan (Molders National Plan) 5 cents by
Company and 5 cents deducted from each employee."
When this proposal was reached on December 2 as the
parties were going down the list of proposals, the
Company's position is a matter of sharp conflict in the
testimony of Lyon, who was present, and Swafford who
was also present. No corroborating witnesses testified in
support of the conflicting versions.12
Swafford testified that, when the matter of the union
pension proposal was reached, Lincoln said that he was not
going to talk about pensions, that pension plans were where
the unions cheated their members and look at Jimmy Hoffa
and the hotel in Hot Springs. Swafford said that he was not
set on the Molders National Plan but would consider any
plan that would grant the same benefits for the money.
Lincoln said, according to Swafford, we are just not going
to talk about pensions.
Lyon testified that nothing was said to the effect that the
Company would not discuss pensions. He states that there
was some reference to the Teamsters pension plan and the
Company had made some remarks about how plans had
been manipulated and also referred to Jimmy Hoffa.
According to Lyon, the Company said that it was
sympathetic to a pension plan but that it did not want the
Molders National Plan or any union administered plan.
Lyon testified that nothing had been explained about the
pension plan proposed and he did not know anything about
it. Although Swafford said he was not dead set on the
Molders National Plan, the matter of pensions was not
pursued after the Company, on the above occasion, asked
Swafford if pensions was a big item and he said, no,
according to Lyon.
The Examiner believes that the Company spoke critically
of union pension plans including the Molders National
Plan proposed by Swafford. We believe that Lincoln
probably did say something to the effect that he did not
12 The union committeemen were present in December as were the two
company attorneys Lincoln and Lyon and the management officials. At the
hearing Lincoln examined Lyon as the principal company witness
regarding this and other phases of the negotiations
13 Probably a party who follows a course of surface bargaining is the
least likely to outnghtly refuse to even discuss a particular subject since
surface bargaining by definition is a technique of going through the
motions or appearance of bargaining on all subjects , it is the antithesis of
overt refusal to even discuss a bargaining demand.
14 No attempt was made to amend the complaint
want to discuss a union plan such as had been offered and
referred to Hoffa and some hotel as purported examples of
union pension malfeasance.
We have difficulty in believing that any experienced
labor law attorneys such as Lincoln and Lyon would have
taken the position that they would not even discuss the
subject of pensions or any pension plan. It is elementary
law that pensions are a mandatory subject of bargaining
and in no other instance, throughout the negotiations, had
the Company refused to discuss a particular subject, albeit
the General Counsel charges that there was only surface
bargaining.13 Also, since nothing had occurred between the
Company and the Union regarding the matter of pensions
after December 2, we deem it of some significance that
Swafford, in describing a meeting on February 3 at which
the Federal mediator and the Company and the Union
were present, testified as follows:
... the meeting started . . . the Union went over the
issues that were open [the matters that were still
unresolved issues ] and we had 8 issues open at that time
... Wages was No. 1. Union dues checkoff, No. 2; job
posting was No. 3 [4 was union clause regarding skill
and ability]; 5. was contract . date or term; 6.
Elimination of B classifications ; 7. 10% adjustment for
crane operators; 8. [method by which union would
notify employees engaged in any wildcat work
stoppage]
There was no mention of pensions being an issue. Certainly
if the Company had earlier said that it would not discuss
wages, this would not have inhibited the Union from listing
wages as an issue still outstanding . We think the same is
true of pensions . Pensions was not an issue , we believe,
because it never came into full bargaining focus on
December 2 or thereafter, either by what the Company said
or by an effort by the Union to bring the matter into full
focus as a continued bargaining demand in issue between
the parties. The subject was more or less passed over. We
also note that the complaint, although describing the
respects in which the Company refused to bargain, makes
no reference to pensions although in his brief the General
Counsel states that Respondent refused to discuss pensions
with the Union.14
The parties met next on December 3, with the Federal
mediator present. The parties briefly described the status of
the negotiations and their respective positions. The
Company resubmitted its contract proposal that had been
the subject of negotiations in the prior sessions but which it
had withdrawn on December 2 after the Union had rejected
the various wage proposals offered by the Company.15 The
Company said, however, that its proposal did not include
checkoff and it was not offering checkoff.16
The mediator then placed the parties in separate rooms
and they remained separated for about 1-1/2 hours while
15 Lyon testified that the contract proposal had been withdrawn on
December 2 because of what the Company regarded as the Union's
summary rejection of the additional wage offers made by the Company
According to Lyon, the contract withdrawal was attributed to company
frustration over the Union 's position on wages and the Company hoped
that the withdrawal would shock the Union into adopting a more
reasonable stance regarding wage increases.
16 Here and/or at prior and subsequent meetings the Company's stated
reasons for not agreeing to checkoff were: (1) union lack of responsibility
and cooperation in participating in more and longer negotiation meetings;
(Continued)
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the mediator spoke with them separately. At one point
during the separation the mediator asked the Union for a
proposal on a 3-year contract. The Union said, 25 cents per
hour increase each year, plus 5 cents incentive, or a total of
80 cents. The mediator had conferred with the parties
separately on this occasion at some length on the various
contract items in dispute. At-one-point-he told the Union.
that the Company offered 3 days pay in the case of death in
the family; an additional holiday; increase call-in pay from
2 to 4 hours. The Union said this would not settle the
contract and that there were other items to be resolved. At
length the parties were brought back together by the
mediator. The Company then offered a wage increase of 5
cents the first year, plus a 5-cent incentive; 7 cents the
second year, plus a 5-cent incentive; and 10 cents the third
year, plus a 5-cent incentive. The Company said that if this
offer was rejected by the Union and the employees it
represented, the Company did not intend to operate the
plant.17 Swafford testified that it was understood that he
would present the company proposal to the membership at
the December 4 meeting. Swafford also testified that just
before the December 3 meeting adjourned the mediator
stated to both parties "that he felt that there was no room
for a settlement, and that if either side had any changes to
contact him and he would arrange a meeting later." 18 No
future meeting was arranged although Swafford said that
he had a membership meeting the next afternoon, Friday,
December 4, and would be available. Lincoln said he would
be gone for the weekend to attend the Arkansas-Texas
football game on Saturday. Lyon or Lincoln said that Lyon
would be in town and the Company would like to be
informed whether the Union at its Friday meeting voted to
reject or accept the Company's offer or whatever.
On the morning of December 4, Lyon was summoned to
the plant by Milwee, the representative of the parent of
Respondent. Lyon and Lovett, an attorney colleague, met
with Milwee and Coulter at the plant. It was decided to
increase the Company's wage offer to the Union so that at
the union meeting that afternoon, when the membership
voted, the Company's best and firmest offer would be voted
on. The additional money was placed in the incentive since
it was believed that this would ameliorate the absentee
problem and thus give the Company some return.19 The
offer in cents for the 3-year contract was, therefore, 5, 7,
and 10; and a 15-cent incentive for the first year instead of
(2) company office staff consisted of one secretary who handled all paper
work, including accounts payable and receivable , letters, insurance
program for employees, and payroll, the latter being a manual and not an
automated operation (these facts about the one office clerical are
undisputed and acknowledged in the record); and (3) in another plant of
the Company, it recalled an employee because of his skill and passed over
two other employees. The two latter employees were on checkoff (thus
manifesting union membership) but the man recalled had revoked his
checkoff authorization several months previously. The Union involved filed
a charge of discrimination against the Company, alleging that the recall
was based on discriminatory reasons. Although the charge was ultimately
dismissed, it caused the Company expense and time The Company
therefore did not in the instant plant wish to have a checkoff and did not
want to know (through checkoff) who was or was not a union member and
wished to protect itself from possible future grievances or charges on the
ground that this or that personnel action favored a nonunion employee
who was not on checkoff as distinguished from employees having their
dues checked off and thus known as union members
17 December 3 was a Thursday The old contract expired at midnight
that night Both parties were aware that there was a scheduled meeting of
5; a 10-cent incentive for the second year; and a 5-cent
incentive the third year. The Company regarded this offer
as a 52 cents package.
Lyon contacted Swafford and asked to meet with him
and his committee that afternoon about 3 p.m. before the
union meeting. When asked by Swafford, Lyon said the
Company would pay the wages of the committee for
attendance at the meeting. Preparatory for the meeting
Lyon had the entire contract retyped embodying therein
the various matters previously agreed upon.
When Swafford came to the plant that afternoon he
learned from Superintendent Schutter that some of the
employees had been milling around and not working, and
had expressed uncertainty about what they would do20
Schutter told them to go home if they were not going to
work, which they evidently did. The Union had not voted
on a strike and had not ordered any work stoppage.
At the meeting between the Company and Swafford and
the union committee that afternoon, Lyon passed out
copies of the revised contract including the new wage offer.
He made it clear that the contract offered was firm and said
that matters not included would not be included. He said
that the Company had decided to operate the plant and not
lockout on Monday and that, whether the Union voted to
accept or reject the contract, the Company was going to
place the wage package it had offered into effect. Lyon and
other company witnesses state that Swafford made no
comment or protest when the Company said that it was
going to place the wages into effect. Swafford testified that
he said, "I protest this." In any event, after discussing some
other aspects of the contract the meeting adjourned, with
the understanding that the Company would be advised
whether the union membership voted to accept or to reject
the contract.
Since the Company had said that it was going to place in
effect the wage offer whether or not the Union accepted the
offer, in our opinion, there was not much to be said by
Swafford on this aspect. As a factual matter, however, we
are not persuaded that he said anything by way of protest at
this time. Further, and more importantly, neither Swafford,
the Union, nor the employees, on December 7, protested
against the increase or refused to accept it or went on
strike.21 The employees continued to work at higher wages
the union membership on the afternoon of Friday, December 4.
18 Lyon's version is substantially the same. He states that the mediator
said that it did not "seem like either side was going to be willing to move,
that we could not get a contract and there was no point in just dragging it
out." The Examiner believes that the mediator said both the remarks
attributed to him by Swafford and those described by Lyon
is Through Milwee and others, Respondent at the hearing offered
evidence regarding Respondent's type of business and product, the
competition it was experiencing as the result of various factors in the
economy, and the fact that the Respondent had operated at $72,000 loss
for the year . Respondent estimated the wage and fringe package that it was
offering as costing $62,000 and that its offer was on the high side
considering its financial position and that such offer was therefore firm.
Although the Company did not plead inability to pay during negotiations,
Swafford testified that the Company did discuss the competition it had
from other foundries and the fact that its business was off.
20 The old contract had expired.
21 The strike did not take place until January 18, 1971, about a month
and a half after the wage increases went into effect
MIDWEST CASTING CORP. 529
than those received under the expired contract while
'negotiations continued.22
Returning now to the chronology of events , the Union
held its membership meeting after its representatives had
met with the Company as described above . Swafford called
Lyon on the evening of December 4 and said the
membership had rejected the Company's offer . He said, we
will be in touch with the Federal Mediation Service.
Swafford said nothing about the Company 's prior declara-
tion that the wage offer would be implemented whether or
not the Union voted to accept or not . He said nothing
about employees not working under such wages or
anything of a protesting nature .23 By letter to Lincoln on
December 7, Swafford confirmed that the union member-
ship had rejected the Company 's contract proposal but
Swafford suggested that the parties continue to negotiate
for a reasonable contract.
On Monday, December 7, the Company began paying
the higher wage that had been offered to and had been
rejected by the Union on December 4. Also, on December
7, the Company wrote a letter to its employees . The letter
stated that the Company and the Union had been
attempting to negotiate a new contract but had reached an
impasse and had been unable to agree . The Company said
that it was necessary to operate its business under terms
that would result in prices for its products that would be
acceptable to its customers .24 The letter then listed various
items or terms requested by the Union to which the
Company had agreed . The letter set forth the December 4
wages that it had offered to the Union and said that the
Union had stated that it would not take less than 75 cents,
plus a 5-cent incentive pay. It was also stated that the
Company had refused the union demand for checkoff. The
letter concluded:
The Company notified the Union on Friday, December
4, 1970, that it planned to start paying the new wages
offered by the Company, effective Monday, December
7, 1970. Therefore all employees who continue to work
will be paid on the basis of the new wages offered by the
Company.
On December 18, through the Federal mediator, a
22 Even prior to December 4, Swafford had indicated to the Company
that the Union had no plans to strike upon the expiration of the old
contract and he counselled the employees to continue to work This was
not the situation where employees, because of a wage increase, refused to,
strike despite the efforts of the union representative to bring about a strike
in order to exert pressure on the employer.
23 Swafford testified that at its December 4 meeting the union
membership took no action regarding a strike and he had recommended
that they continue to work (which would be under the higher wage scale
that the Company had said it was placing in effect), while the Umon^
continued to negotiate. Swafford's recommendation was followed.
24 Elsewhere in the record, it appears that prior to the expiration of the
old contract the Union had indicated that it was amenable to a 30-day
extension of the old contract. The Company decided that it needed to
know its costs for the ensuing year or 3 years in order to bid on customers'
business . It decided that the new contract should beresolved rather than
extend the old contract for a brief period and that it would be unrealistic to
use the wages of the old contract as its costs in making future bids for
business It therefore assertedly made its best wage offer to the Union on
December 4 and decided that, in the posture of the bargaining, it would
and could use the wages of its best and firmest offer as the basis of cost
estimates for the future, with or without a contract, depending on whether
the Union accepted or rejected what the Company considered to be a firm
and ultimate offer.
meeting was arranged. The parties discussed the matters on
which they were apart. The Union mentioned, inter alia,
that it had to have checkoff and job posting. Wages were
discussed. The Company said it was firm on the money.
The Union said that if the Company would not change its
position on money they were wasting their time. The
mediator separated the parties, spoke to them, and brought
them together again. According to Swafford, the meeting
concluded with the mediator saying that he did not see any
room for a settlement, that he would ask both sides to take
a close look at their positions, and if either side had any
changes, that they should call him and he would arrange
another meeting. The meeting had lasted from about 5 p.m.
to 7:30 p.m.
The parties met on January 15, 1971, with the mediator.
They went over and discussed the various matters in the
proposed company contract on which they were in
disagreement. During the meeting the Union said that on
wages it proposed 20 cents the first year, 25 the second year,
and 25 the third year plus the 5-cent incentive for the 3
years. The Company said that it was firm on its wage offer.
Swafford also brought up the matter of the minimum rate
for laborers in the Company's proposed contract which was
set forth as $1.60, and $1.65 after 30 days.25
On December 4 when the Company gave the Union its
latest contract proposal, Swafford had commented on the
fact that the minimum rate therein for laborers was the
same $1.60, $1.65, whereas during the term of the old
contract it had been upped to $1.70 and $1.75.26 The
Company replied on December 4 that it was not willing to
change its (December 4) contract proposal of $1.60, $1.65
on laborers.
The foregoing, therefore, is the background, when
Swafford, on January 15, again raised the question of why
the laborers' minimum in the current contract proposal was
not $1.70, $1.75 instead of $1.60, $1.65. The Company said
that on laborers it wanted to be in the position of paying
only what it had to pay in order to hire them and if it could
hire laborers at $1.60 it would do so, or, if it had to pay
$1.70 to hire them, it would do S0.27
The above explication of the laborers' matter, while
25 The old contract provided a minimum rate for laborers of $1.60 and
$1.65 after 30 days. The Company's first contract proposal to the Union on
November 6 was, as to laborers, the same as the old contract. The next
written contract proposed by the Company on December 4 was apparently
the same. The old contract and the subsequent company contract proposals
provided that the Company could unilaterally agree to pay rates in excess
of the minimum to present or future employees. In the 18 points submitted
to the Company by the Union for changes to be made in the expiring old
contract there was no reference to the laborers' minimum rate nor any
reference to, or proposal about, the contract language giving the Company
the unilateral right to pay rates in excess of the minimum.
26 Swafford testified that sometime during the term of the old contract,
the Company had informed Swafford and the union committee that it had
changed the laborers' rate to $13D and, $1.75 (as it lxad the tight-to-do
under the contract terms). It is not clear that the Company changed the
rates in the old contract at that time from $1.60, $1.65 to $1.70, $1.75, or
whether it simply began hiring laborers at $1.70, $1.75 and advised the
Union that it had changed the rates for laborers. The physical evidence of
the old contract shows no change.
24 While this is a hard bargaining stance, it was what the Company
could do and did under the terms of the old contract and what its
proposals, from November 6 on, consistently provided in written terms. In
short, the Company did not want to raise the minimum contract rate for
laborers from $1.60, $1.65 to $1.70, $1.75 although it apparently was paying
(Continued)
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somewhat extended in order to make it intelligible, is not
intended to convey the impression that this subject was the
major topic of discussion or dispute on December 4 or
January 15. It was one of a variety of topics discussed by
the parties and consumed no more time than other matters
in dispute.
The basic disputes on January 15, as on prior occasions,
included, for instance, the general wage increase, checkoff,
job posting, and some other matters. On various matters
there was some movement on the part of either the
Company or the Umon or both but on other matters there
was no progress. The meeting concluded with the mediator
remarking that there had not been enough movement to
settle the contract. Neither party proposed another
meeting.
On January 16 at a union meeting, Swafford states that
he reported on the matters still in dispute. He named the
various matters such as wages, checkoff, and so forth, and
said the Union was still trying to reach an agreement. He
said the decision was up to the membership whether they
wished to continue to work or to strike. At this point the
General Counsel asked Swafford,
Q. Was any mention made of the Company putting
the wage increase into effect?
A. Yes, right.
The witness then said that he had stated his opinion that the
wage increase was entirely wrong and was an unfair labor
practice.28 A strike was voted and it commenced on
January 18 with picket signs bearmg the Union's name and
the words "On strike."
The next bargaining session was on February 3, as
arranged by the mediator. The Umon enumerated the
issues in dispute. They were: (1) wages; (2) checkoff; (3) job
posting; (4) ability, skill, and aptitude being subject to
arbitration; (5) term of the contract; 29 (6) elimination of B
job classifications; (7) 10 percent up wage adjustment for
crane operators; (8) ' type of notification by Union to
employees who engaged in illegal walkout. Lincoln asked
Swafford if the Umon would accept the company money
offer (wages) in the event that the Company agreed to items
two through eight. Swafford said that would not settle the
contract. The parties discussed the matters in dispute.
During the meeting the Union proposed in wages that there
be an increase of 20 cents, plus 5 cents incentive, the first
year and 20 and 5 the second year, and 20 and 5 the third
year. The Company did not agree. The Company said that
on checkoff it would allow a union representative to come
into the plant on a designated day to collect dues and that it
would provide tables and chairs. This was not acceptable to
the Union. The Union said that on the crane operators it
would accept 5 percent instead of 10 percent. The
Company did not agree. The Union made a proposal on
its current relatively few laborers $1.75, some of whom had possibly been
hired at $1 60 and some possibly at $1 70
28 In the Examiner's opinion the wage increase was not a major factor
or a catalyst in the strike vote and we doubt that it was a factor with the
employees who voted to strike. Indeed, Swafford's original testimony
wherein he described to the employees the points at issue between the
Union and the Company did not mention the wage increase and this
matter was not raised by the Union with the Company at anytime after the
increase was announced on December 4.
29 The Company wanted the contract to be 3 years from December 4
and retroactive. The Union's position was that the 3 years should be from
item 8 above which was not accepted . The Company agreed
to arbitration on ability , skill, and aptitude . Other matters
remained with little or no progress made.
The parties met on February 16 with the mediator. The
Union proposed an increase in the first year of 15 cents,
plus a 10-cent incentive ; 15 and 10 the second year; and 20
and 5 the third year . The Union said it had to have checkoff
and job posting . The Company said that wages were a big
hangup and it was not prepared to change . They discussed
other issues but made only slight movement . The Union
said that it did regard the term of the contract as a real
hangup.
The next meeting was March 1, with the mediator. The
Company presented a complete contract which , it consid-
ered, embodied changes made or offered, plus some
additions . Wages were the same as the Company's last
offer, described above in connection with the offer on
December 4. The Union did not agree on wages and
proposed 15-cent and 10-cent incentives; 15 and 10; and 20
and 5 for the 3 years. The Company did not agree. The
contract proposal provided for job posting for 2 days.
Although the Union had demanded 3 days, it accepted the
job posting, a matter long in dispute . Other matters that
had been agreed to were in the contract .30 The Union said it
had to have checkoff . The Company offered some changes
in its position regarding Bclassifications but there was no
agreement . The Union made a proposal regarding notifica-
tion to employees who engaged in an illegal work stoppage
but this was not acceptable to the Company . Apparently
there was agreement on the contract term , that it should run
from December 4, 1970 , as proposed by the Company.
On March 12 the next meeting was held . The parties were
unable to resolve the various matters on which they had
been apart. On checkoff , the Company again mentioned its
clerical problem of one clerical employee in the office and
referred to the possibility of having to hire another clerical
to handle the work . It proposed that it would grant a
checkoff if the Union would pay a portion of the cost in the
amount of $25 per month . This was not acceptable to the
Union . The Company discussed having a provision in the
contract whereby the Company could place the plant on a
4-day, 10-hour workweek . However , the Union did not
agree and the proposed written contract submitted by the
Company on March 1 , plus some additions submitted on
March 12, still 'provided for the 5 -day, 8-hour week, and
had nothing about the 4-day week.
Although some effort was made to arrange another
meeting, the fixing of a mutually satisfactory date
foundered on the conflicting schedules of Swafford and the
company representatives . As of the close of the instant
record no further meetings had been held.
the date the contract was signed.
30 The March 1 contract proposal set forth the laborers' minimum as
$1.65, and $1 70 after 30 days. Although the record indicates that this was
the first time the Company had set forth anything but $1.60 and $1 65 on
this item, there is nothing in the record about what was said about this on
March 1. In retrospect , this matter of the laborers, since it was not
mentioned after January 15 (and only on December 4 and January 15) and
was not listed by the Union thereafter as one of the unresolved issues
between the parties, does not appear to have been a major obstacle
between the parties.
MIDWEST CASTING CORP. 531
Conclusions
The complaint alleges that Respondent refused to
bargain in violation of Section 8(a)(5) and (1) of the Act "in
that Respondent: (a) Negotiated with the Union in bad
faith and with no intention of entering into any final or
binding collective bargaining agreement. (b) Withdrew its
entire contract proposal on December 2, 1970, including
those portions on which agreement had been reached. (c)
Refused to negotiate with respect to a contractural
provision for voluntary checkoff of union dues. (d) On or
about December 7,1970, unilaterally, and without reaching
a bargaining impasse, granted a wage increase to the
employees in the unit described in paragraph 7. (e) On or
about December 7, 1970, promised the employees in the
unit described lif paragraph 7 above that they would receive
increased wages if they refrained from engaging in
protected concerted activities and threatened to withhold
wage increases from the said employees if they engaged in
protected concerted activity."
The Trial Examiner does not agree that the evidence
shows that Respondent negotiated in bad faith or engaged
in surface bargaining with no intention of entering into a
contract. In our opinion, the evidence, which we have
described at some length, indicates genuine collective
bargaining and a desire to conclude a contract. The fact
that Respondent was firm on various matters and desired a
contract with terms that it regarded as acceptable is not
illegal. The Union on its part was also seeking a contract
with terms that were acceptable to it.
In overall context, we do not regard the Company's
withdrawal of its entire contract proposal on December 2,
1970, as 'a refusal to bargain or as evidence of bad faith
bargaining. In view of the Respondent's reinstatement of its
contract proposal at the next bargaining session on
December 3, Respondent's explanation that its action was a
bargaining tactic designed to evoke a more receptive
response by the Union to company proposals hitherto
rejected is' credible. In bargaining, parties not infrequently
resort to various ploys but such moves must be appraised in
overall context.
Although in its original contract proposal Respondent
had offered the same checkoff provision as the old contract,
i.e., checkoff authorization of an employee revocable any
time at the will of the employee, the Union had not
accepted that proposal by December 2. The Union was
demanding an irrevocable checkoff as that term is
explained earlier in our Decision. After December 2, the
Company no longer offered checkoff. The Company told
the Union, in effect, that it regarded checkoff as something
of a favor wholly for the Union's benefit and that the
Company did not feel that, what it regarded as the Union's
lack of responsibility in failing to meet more frequently and
for longer periods and its attitude on various company
31 "It is plain that the negotiations were carved on primarily on behalf
of Respondents [employer] by a busy and successful lawyer . It is
understandable that in a busy law practice some difficulty arises in giving
as prompt consideration to the requests of a representative of the opposing
side as would entirely satisfy the other. Nevertheless . [this] does not
exempt the employer from the normal requirements that nothing be done
for the purpose of stifling an opportunity for discussion There remains on
the employer the positive legal duty to meet and confer with the Union at
proposals such as wages, merited a checkoff from the
Company.
It is the Examiner's primary responsibility to evaluate
whether the parties were bargaining in good faith and
whether their various bargaining positions were reasonably
tenable; but it is not his function to substitute his views for
reasonably tenable positions of the parties. For instance, we
do not undertake to say that the Union's wage demands
were too high or the Company's wage offer too low; or that
one position or the other was right or wrong on the length
of time seniority should be retained after layoff; or that the
Union was right or wrong in feeling or saying at one stage
that the Company was not interested in a contract but was
out to break the Union; or that the Company was right or
wrong in criticizing the Union for not meeting more
frequently and for longer periods. We evaluate all the
foregoing types of positions in an overall context and unless
they are so untenable or so contrary to good-faith
bargaining as to reveal a desire to frustrate agreement, we
do not focus on this or that bargaining position as illegal,
regardless of whether we agree or disagree with a particular
position of one of the parties.
While parties in contract negotiations are not required to
meet every day for 14 hours a day and while there is no
precise formula as to how much availability for meetings is
required, there have been a substantial number of cases on
the matter of the availability of a party's representative for
bargaining sessions . These cases most commonly are
against employers and in many instances involve the
availability of an employer attorney and his committee.
Unless it was agreeable to the opposite party, we have little
doubt that an employer representative in bargaining, e.g.,
an attorney or employer officials, would be in a difficult
legal position if he or they were available for bargaining
only three or four times a month or only for 3 or 4 hours in
the evening because he represented many other clients in
other contract negotiations and grievances and so forth,
and because the officials had a plant or plants to run during
the day. The genuineness of the facts, namely that a
representative is in fact a very busy man or that officials
have other work to do and do not wish to subordinate it,
does not confer absolution.31
The evidence shows that Swafford was a busy man and
we understood his position as to why his committee would
not meet during the day or for long duration at night. Aside
from the fact that the issue is not before us, we do not find
that the Union was not bargaining in good faith because of
its relative unavailability for more frequent and longer
meetings in November up to December 2. But we also
believe that Respondent was irritated by the situation and
that it did view the situation as indicating irresponsibility
and a lack of cooperation on the Union's part.32 We believe
that all this was a contributing factor to a harder bargaining
stance on Respondent's part on December 2 and 3,
reasonable times and intervals." N.L R B. v. Exchange Parts Company, 339
F 2d 829, 832-833 (C.A. 5); A. H. Belo Corporation v. N L R B., 411 F.2d
959, 968 (C.A. 5), (Company could not meet more than once a week for 2
hours because its attorney had negotiations with other unions.)
32 In our opinion , the Respondent, for instance , had no legal obligation
to pay the union committee for attendance at daytime bargaining sessions.
Swafford's duties and schedule and the committee 's availability and_
compensation were primarily an intramural union matter.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particularly with respect to the granting of checkoff, as
Respondent, in fact, told the Union. Regardless of whether
we agree or disagree with the position adopted by
Respondent or its reasons, we do not regard it as evincing
bad-faith bargaining. We do not believe Respondent's
position was adopted in order to thwart the consummation
of a contract. We do not find that, as alleged, Respondent
refused to negotiate regarding checkoff.33
With respect to the wage increase of December 7, 1970, it
is our opinion that the parties had reached an impasse on
the wage issue and that the Union and the employees
acquiesced in the wage increase and continued to work at
the higher wage until such time as they chose to strike, more
than a month after the increase went into effect.
On December 2, the Company's wage offer was 5 (cents),
5 and 5, plus a 5-cent incentive in a 3-year contract. The
Union's demand was for 75 cents in an 18-month contract.
The Union then proposed 60 cents in an 18-month contract
which the Company believed was actually 72 or 73 cents if
the fringes were correctly calculated. The Company offered
5, 7, and 10, plus a 5-cent incentive. The Union rejected this
and said they were getting nowhere. The Company said the
union wage demand was excessive and to impress upon the
Union that the Company considered the Union's demands
beyond reason, the Company withdrew its contract
proposal.
The parties met with the mediator on December 3 and
were kept apart for 1-1/2 hours while he attempted to evoke
from either party a basis for bridging the wage gap (and
some other issues) separating the parties. The best offer
from the Union was a 3-year contract with 25, 25, 25, and 5,
or a total of 80 cents as compared with their original offer
on December 2 of 75 cents in an 18-month contract and a
later offer of 60 cents (alleged by the Company to be
actually 72 cents) in an 18-month contract. The Company's
proposal did not come near the Union's latest 80-cent
proposal. The best the Company would do was 5 and 5; 7
and 5; and 10 and 5 or 37 cents. The Company said that if
this offer was rejected by the Union at its December 4
union meeting, the Company intended to close the plant on
33 We have also considered that Respondent on the matter of checkoff
cited its one-woman clerical force and that at various times Respondent
agreed to having a union representative come into the plant on a
designated day to collect dues or that it would grant a checkoff if the
Union would contribute to the clerical expense by paying $25 a month for
the checkoff service. The Union displayed no interest in the proposed
alternatives but adhered to its demand for checkoff by the Company
without qualifications . On this matter of proposed alternatives to checkoff
as pertinent considerations in determining good faith in bargaining the H
K Porter case (H. K Porter Company, 153 NLRB 1370) is of some interest.
The Trial Examiner and the Board in that case found that the company
had not bargained in good faith regarding checkoff The Trial Examiner's
Decision, adopted by the Board, noted that during the bargaining the
company had refused to agree to checkoff . The decision states that the
union then proposed that its financial secretary or its stewards be allowed
to collect dues in the plant during nonwork hours. The company rejected
both alternatives ; but the implication is present in the case that if the
company had accepted either alternative or had counterproposed either
alternative originally, in reply to the union demand for checkoff, a finding
of refusal to bargain might not have been made . In the Court of Appeals
the refusal to bargain finding was affirmed , with the Court observing, inter
aka, that "On several occasions the Union offered to withdraw its demand
for checkoff if the Company would permit union stewards to collect dues
during nonworking hours. . . But the Company rejected this alternative
as well." (United Steelworkers [H K Porter Co.] v. N.L.R B, 389 F 2d 295
(C.A.D.C.).) The same implication exists, in our opinion , as described above.
December 7. The Union evinced no receptivity to the
Company's offer but agreed to submit the company
proposal to the union membership. At the conclusion of the
December 3 session, the mediator, an objective, disinterest-
ed, and qualified observer of the bargaining positions of the
parties, stated "that he felt that there was no room for a
settlement." No one present disputed the accuracy of this
observation. The mediator went on to state "that if either
side had any changes to contact him and he would arrange
a meeting later." No future meeting was scheduled.
Just before the union meeting on December 4 the
Company increased its wage offer to the Union and said, in
effect, that this was its best and firmest offer and that it
would continue to operate and would place the wage offer
in effect on December 7 whether accepted or rejected by
the Union. The Union rejected the wage offer on December
4 .34
As we have indicated, we believe that the parties had
reached an "impasse on wages and that the Company's
placing its wage offer into effect was not illegal.35 This is
not a situation where an employer refuses to agree to grant
a wage increase in the course of bargaining with a union but
then turns around and grants a wage increase unilaterally
to the employees; nor is it a situation where the employer
unilaterally offers and gives a higher wage increase to
employees than he had offered to the Union as bargaining
agent. Here, the Company made its offer to the Union and
the Union, with the vote of its membership, rejected the
offer. The same offer was then placed in effect by the
Company.36 There was no bypassing or doubledealing.
Neither the Union nor the employees were obliged to
receive The increase wages. They were free to strike. The
Company had obtained no contractural agreement by
implementing its wage offer. The Union and the employees,
although they would not agree to bind themselves to a
contract specifying the offered wages, chose to accept the
increased wages until such time as they elected to strike.
Evidently they believed that, during the period while the
employees were being paid higher wages than those in the
old contract, the Union, through negotiations, might secure
Checkoff is a method or procedure for collecting union dues. No method
or procedure is immune to counter proposals or to alternate collection
methods when the subject is in the collective-bargaining arena and the
offering of tenable counterproposals will often indicate the existence of
good-faith bargaining The case reached the Supreme Court on the issue of
the remedial power of the Board to correct a finding of refusal to bargain
on the subject of checkoff. The validity of the finding of a refusal to
bargain by the Board and the Court of Appeals and any implications
therein were not before the Supreme Court and were not disturbed (H K
Porter Company v. N.LR.B., 397 U.S. 99).
34 When Swafford notified Lyon of the rejection on December 4,
neither party made a different offer or proposal nor suggested a date for
another meeting.
35 ••, , , a deadlock is still a deadlock whether, produced by one or a
number of significant and unresolved differences in positions " Taft
Broadcasting Co., 163 NLRB 475. The Examiner does not regard the fact
that bargaining on wages did not commence until December 2 as
dispositive Impasse is a question of fact under all the circumstances.
36 "An employer is not required to lead with his best offer; he is free to
bargain . But ... he has no license to grant wage increases greater that any
he has ever offered the Union at the bargaining table ." In a footnote
at this point, the Court stated, "Of course, there is no resemblance between
this situation and one wherein an employer, after notice and consultation,
`unilaterally' institutes a wage increase identical with one which the Union
has rejected as too low ...:. N.LR.B. v. Katz, 369 U.S. 736.
MIDWEST CASTING CORP.
an even higher wage than that offered and implemented by
the Company. If eventually a higher wage was not
obtained, the Union could then strike if it chose to do S0.37
The Examiner does not regard the Company's letter to
the employees on December 7 as illegal. It was a factual
account of the status of negotiations between the Company
and the Union. The latter was not denigrated or
undermined. Its status as bargaining agent was referred to
and it was plain from the letter that as the result of
collective bargaining the Union had obtained the Compa-
ny's agreement to various improved working conditions
and fringe benefits 38 The wage offer was described as that
which had been offered to the Union and rejected. The
letter said that the Company had told the Union on
December 4 that it was placing the wages in effect on
December 7, and that this would be done and that,
beginning on December 7, the new rates would be paid.
It is obvious, in our opinion, that the wages that the
Company would be paying on December 7 and thereafter
would be paid to those who worked and would not be paid
to those who did not work either because they struck or
otherwise did not work. Those who work are paid and those
who do not work are not paid. Whatever the wages the
Company would be paying on December 7, whether old or
new rates, would be received by those who worked and
would not be received by people who chose not to work.
Since the Company was going to pay the new rates on
December 7 all employees who worked would be paid on
that basis. This was so stated in the letter.39
While the Company probably hoped that the employees
would not strike, it is no threat or illegal inducement to tell
employees that those who work will be paid the wage rate in
37 Absent some wholly unexpected and cataclysmic business disaster, it
would be virtually impossible, legally and practically, for the Company,
after December 7, to offer a lower wage scale to the Union in a contract
than the scale that the Company had placed in effect on December 7. But
the Union could demand a higher wage scale in return for a contract and
the Company could agree if it wished. In short, when the Company
implemented its wage offer on December 7, future bargaining could result
in higher wages than those implemented on December 7 but could not
result in lower wages unless the Union agreed (a highly unlikely
occurrence). The Union and the employees therefore chose to continue to
negotiate and not strike (having offered to extend the old contract for 30
days and continue to work at the old wages , there was no reason not to
533
effect at the time they work and that those who do not work
will not receive any pay. In this case the wages on
December 7 would be and were the new wages that the
Company had previously offered to the Union.
It is recommended that the complaint be dismissed
because it is not sustained by a preponderance of the
evidence on the record as a whole.
The instant hearing closed on April 21, 1971. On July 21,
1971, the Trial Examiner received from Respondent a
motion to reopen hearing and adduce additional evidence.
On July 26, 1971, the Trial Examiner received from the
General Counsel an opposition to Respondent's motion.
The motion in essence seeks to introduce in evidence a
contract executed by the Union and the Respondent on
July 16, 1971. The argument by Respondent is substantially
that the contract and parts thereof refute and render moot
various complaint allegations. We disagree. Actions by the
parties subsequent to the hearing and in a period following
the litigation have, in this case, little or no relevance or
materiality as to the issues litigated. Positions or actions
taken subsequent to the hearing may have been due to a
change in position by the parties or may have been due to
the ultimate effectiveness of prior illegal tactics, if there had
been such tactics, or may have been due to the prior
litigation experience itself. We have not considered
posthearing events in arriving at our decision in this case
and we deny Respondent's motion. As requested by
Respondent in its motion by way of alternative action, we
will place the motion and its July 16, 1971, contract
attachment, as well as the General Counsel's opposition, in
a rejected exhibit file.
work for 30 or 45 days at the higher wages effectuated by the Company)
since negotiations on wages had nowhere to go but up, from the Union's
standpoint, once the Employer implemented a wage offer which thereupon
became an actual floor as to the terms that would be embodied in a
contract.
38 Inter aka, the letter stated: "During the bargaining the Company has
agreed to these requests by the Union " (underscoring supplied): [the items
are listed].
39 ". . . the right to bargain collectively does not entail any `right' to
insist on one's position free from economic disadvantage." American Ship
Building Co v. N.L.R B, 380 U.S. 300.