Mixermobile Manufacturers, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1964

149 N.L.R.B. 592 (N.L.R.B. 1964)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mixermobile Manufacturers , Inc. and Metal Trades Council of
Portland and Vicinity, AFL-CIO. Case No. 36-CA-1300. No-
vember 9, 1964
DECISION AND ORDER
On May 25, 1964, Trial Examiner William E. Spencer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support thereof, while
the General Counsel and the Charging Party filed briefs in answer to
the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with clarification of the order as
set forth below.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders that
the Respondent, Mixermobile Manufacturers, Inc., its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, with the following modifications :
1. Delete subparagraphs (a) and (b) of paragraph 2 thereof, and
substitute therefor the following language :
"(a) Upon request by Metal_ Trades Council of Portland and
Vicinity, AFL-CIO, execute the agreement submitted to it on Octo-
ber 22, 1963, the agreement to be effective from that date to at least
the next renewal date as provided therein following signature, but if
no such request to execute is made, bargain, upon request, with the
Union as the exclusive bargaining representative of employees in .the
previously described appropriate unit."
2. Reletter the other subparagraphs of paragraph 2. accordingly.
149 NLRB No. 60.
MIXERMOBILE MANUFACTURERS, INC. 593
3. Delete the second paragraph of the notice, inserting in lieu
thereof the following language :
WE WILL, upon request, execute the final draft of the agree-
ment submitted to us by the Union on October 22, 1963, the
agreement to be effective from that date to the next renewal date
as provided therein following signature, but if no request to
execute is made, we will, upon request, bargain collectively with
the Union as the exclusive bargaining representative of all em-
ployees in the following unit :
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (B) of the National Labor Relations
Act as amended ( 61 Stat . 136; 73 Stat . 519), herein called the Act , was heard
before Trial Examiner William E . Spencer at Portland , Oregon, on March 31,
1964, pursuant to due notice. The complaint, issued on February 5, 1964, by
the General Counsel of the National Labor Relations Board, the latter herein
called the Board, upon a charge duly filed on December 23, 1963, by Metal
Trades Council of Portland and Vicinity, AFL-CIO, herein called the Union,
alleged in substance that Mixermobile Manufacturers , Inc., herein called the Re-
spondent or the Company , refused to bargain with the Union , the duly certified
representative of its employees in an appropriate unit , thereby violating Section
8(a)(1) and (5) of the Act. Respondent in its duly filed answer • denied the
commission of the alleged unfair labor practices.
Upon the entire record in the case , from my observation of the witnesses,
and after considering the briefs filed with me by the General Counsel , the Union,
and the Respondent , respectively , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Oregon corporation engaged in the manufacture of heavy
equipment , including scoopmobiles , maintains a principal office and place of busi-
ness at Portland, Oregon. During the past 12 months its purchases exceeded
$1,000,000, of which amount in excess of $500,000 was for goods originating
outside the State of Oregon . During the same period it manufactured in
Oregon and sold in excess of $2,000,000 in value of equipment , of which amount
in excess of $1,000,000 was shipped directly to points outside Oregon.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
Pursuant to elections initiated by RM petitions, the Union has twice been
certified as bargaining representative in the appropriate unit set forth below, the
first time in April 1960, the second about June 12, 1962 . The appropriate unit is:
All production and maintenance employees of Respondent ( including shipping,
receiving , and warehouse employees), excluding all clerical employees , employees
of the purchasing, engineering , and parts departments, and guards , professional
employees , and supervisors as defined in the Act.
During the period of the first certification no bargaining agreement was
consummated by the parties. Negotiations were continuing in February 1963,
and a final bargaining conference was held in the Offices of the Federal Mediation
and Conciliation Service on June 25, 1963. It is the General Counsel's and
the Union's position that agreement on a contract was reached at this meeting.
Following the June 25 meeting, the Union prepared a draft of the agreement,
executed it, and submitted it to the Respondent for the latter's execution. The
Union on two or three occasions thereafter inquired of the Respondent why
770-076-65-vo1. 149-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it had not executed the agreement, and was told by the latter in response to
the first inquiry that Respondent had not as yet had time to read and study
it, and on a later occasion that in the opinion of the Respondent it did not
accurately reflect what was agreed on at the June 25 meeting. It was not,
however, until September, after the Union had filed a charge of unfair labor
practices against the Respondent, and the Union's attorney, Donald S. Richardson,
had twice inquired of Respondent's attorney, Henry McCarthy, concerning Respond-
ent's failure to execute the agreement, that the latter advised Richardson that
the "field or service work provisions" in the draft of the agreement submitted
by the Union "were not right"-this without amplification-and that the Respond-
ent had not received a "side letter" which apparently represented some concessions
by the Union and was supposed to accompany the draft of the agreement. There-
after, the Union made a careful comparison of its draft of the agreement
with notes and minutes kept of the negotiations and discovered that it contained
some inaccuracies. After making this discovery the Union withdrew its charge
of unfair labor practices, and its attorney, Richardson, submitted to the Respondent
a corrected draft of the agreement.' Richardson's covering letter stated, in part:
We have been informed that you have contended that the written agreement
previously furnished to you did not conform in all respects with the agreement
reached in your negotiations with the Council. We also understand that
you have raised the question of a "side letter" from the Union concerning
certain points.
Included with the enclosure of the corrected contract draft was the side letter
referred to.
The Respondent made no reply to this communication nor has it made any
response to other communications concerning the agreement addressed to it by
the Union.
Respondent's general manager, Stanley Wagner, who participated in contract
negotiations, admitted that the contract and side letter submitted by the Union
on October 22 conformed in all respects to agreements reached in negotiations
which culminated in the meeting with the Federal Conciliator on June 25, but
testified that the agreements so reached were not complete because of the omission
of certain job descriptions proposed by the Respondent at a bargaining session
on February 12, 1963. As to the omitted job descriptions, he testified, there
was no agreement.
The Respondent's failure to make any response whatever to the Union's repeated
inquiries concerning its execution of the draft of an agreement submitted by
the Union on October 22; its failure to inform the Union on any point
of difference existing between it and the Union with respect to the submitted
draft; and conduct throughout the period subsequent to the final bargaining
session of June 23 in withholding execution of an agreement while furnishing
the Union with no detailed explanation of its action in doing so, all constitute
a clear and patent refusal to bargain in good faith. Wagner's explanation
that Respondent considered that it was under no duty to meet with the Union
or answer its communications except in a meeting with the Federal Conciliator,
and that, apparently, only at the Union's request, constitutes no justification for
its course of conduct. Its duty to meet with the Union at all reasonable times,
with or without a Federal Conciliator-who would be called in only by mutual
consent of the bargaining principals-was in no sense qualified by the fact
that bargaining sessions in the past had been held in the Conciliator's office
and, presumably, with him in attendance. Nor was there any duty on the part
of the Union, as a bargaining principal, to initiate the matter of a further
meeting with the Respondent, unless and until the latter had afforded it some
explanation of its failure and refusal to execute the bargaining agreement. In
view of Respondent's experience in dealing with labor organizations, first through
a multiemployer unit and later individually, and its retention of a legal adviser,
I am unable to believe that its failure to respond to the Union's repeated demands
that it execute the agreement submitted to it by the Union or furnish the Union
with an explanation of its refusal to do so, was due to a good-faith misunderstand-
ing of its bargaining obligations: on the contrary, I think it fairly obvibus
that it was due solely to its desire to postpone or evade altogether cementing
a contractual obligation with the Union.
1 There was delay in the Union's handling of the matter due to successive heart attacks
suffered by its secretary -treasurer, Henry McCarthy, who participated in the negotiations
through June 25.
MIXERMOBILE MANUFACTURERS, INC. 595
The only remaining issue of consequence is whether the draft of the agreement
submitted by the Union to the Respondent on October 22 was in fact the agree-
ment reached by the parties at the bargaining session of June 25. It was
unless there was a clear understanding of the parties that the job descriptions
proposed by the Respondent be included in the agreement and constitute an
integral part of it. Existing industrywide contracts of the Union provided for
three job classifications. The Respondent, because of the peculiar character of
its business, proposed that instead of three there should be five job classifications.
Wagner admitted that the Union accepted the Respondent's proposal of the five
classifications. "Q. And was this proposal approved and accepted by the Union?
A. Yes." This proposal and acceptance appear to have occurred at the February 12,
1963, bargaining session. We are therefore no longer concerned with the
job classifications, as such, but only with the job descriptions proposed by the
Respondent with respect to these classifications. Admittedly, the description of
the first classification, which was substantially the same as that contained in
the Union's prior contracts, was agreed upon and written into the contract
draft. As to the remaining four, "to the best of his knowledge" Wagner sub-
mitted notes or something in writing containing Respondent's proposal for a
job description on two; as to the remaining two, it appears that he proposed
nothing in writing; he testified that the matter was discussed orally. Several
union representatives present at some or all of the negotiations testified that
they were shown none of the job descriptions testified to by Wagner. Robert
G. Kennedy, a business representative of one of the participating unions, testified
on cross-examination:
Q. Isn't it correct, Mr Kennedy, that there is a job description [in the
Union's contract draft] for just one of the five classifications set up for
wages under the agreement.
A. This is correct.
Q. And isn't it also true, Mr. Kennedy, that no agreement, had been
reached between the Union and the Company with respect to the job descrip-
tions for the other four classifications?
A. When the wage rates were negotiated, these were talked about at
that time, what these people would do; in other words, not reduced to
writing, but the people of the Negotiating Committee did discuss what
these people would do.
Q. No agreement was reached between the Union and the Company as
to their job descriptions?
A. Well, since we had a wage rate in there, I would say yes, even though
it was not in writing.
He later testified, "I wanted to know what these people were going to do,
and even though it was not reduced to writing for these other classifications,
we understood what these people were to do."
There was enough of an agreement at the February 12 meeting, that the
Union on February 22 took the proposed contract, orally, to its members for
their ratification. Due to some oversite, the Union failed to submit certain
contract provisions at this meeting, but they had nothing to do with job descrip-
tions; apparently the omissions were discussed, the wishes of the membership
ascertained, and there were further negotiations on about May 7 and June 25. Re-
spondent's Wagner testified that at the final bargaining session on June 25,
the discussion was limited to two points, and on those two points there was
agreement. His testimony on this meeting. "I do not recollect a complete run-
down of the entire agreement, no, but he [the Conciliator] did discuss the
points that were to be brought up at this meeting-the two points
remaining." [Emphasis supplied.] "Q. What two points? A. He brought
up the point of service work and health and welfare." While Wagner professed
not to remember that at this meeting it was agreed that the Union would
submit a draft of the agreement to the Respondent for the latter's execution,
the testimony of the Union's negotiators was a little clearer on the point, and
I am convinced that such an understanding was reached. I am also convinced
that it was the understanding of all parties that this meeting marked the end
of negotiations for a contract. No further meetings were scheduled or discussed.
It hardly seems likely that the Union would have prepared a draft of the
agreement and executed it before submitting it to the Respondent, had this
not been the case. The Union's first draft contained errors, but its corrected
draft which it submitted on October 22, as admitted by Wagner. did not.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the facts recited above it is seen that from February 12, when the Respond-
ent submitted its proposal for five job classifications and the matter of job
descriptions was at least discussed orally, until and including the June 25 negotia-
tions, the matter of job descriptions was not made an issue by the Respond-
ent and , admittedly, was not even mentioned in the final meeting on June 25 which,
as Wagner testified , was limited to the two points remaining , neither of which
was related to job descriptions . Had the Respondent believed that job descriptions
for four out of the five job classifications agreed upon constituted an issue such as
would have to be resolved before a bargaining agreement could be executed, it is
incredible that it would have made no mention of it in the final negotiations on a
contract , and even more incredible that after the Union had filed its first charge
of unfair labor practices and the Union 's attorney inquired concerning its reasons
for not executing the Union 's draft of a contract , it still would have made no men-
tion of the omission of job descriptions from the document. In fact, at no time,
apparently , prior to the hearing in this case , was the Union informed that the Re-
spondent was relying on the omission of job descriptions as a justification for its
refusal to execute the contract submitted to it by the Union on October 22.
On the entire record , I am convinced that the Respondent never made an
issue of job descriptions or demanded that such descriptions be included in a
bargaining agreement . Its proposal for five job classifications was granted,
and these five classifications are set forth in the contract draft the Union submitted
on October 22. It may well be and doubtless is the fact that there was no
formal agreement , certainly none in writing , on job descriptions for four of
the five accepted job classifications . On the other hand there is no evidence
that there was any disagreement in the matter , that the matter was disputed
or an impasse reached. I think it is obvious , as indicated in Kennedy's testimony,
that the parties had a general understanding about such job descriptions and
that they were not considered to constitute an issue such as required resolution
in writing and contractual form . That the job description for the first classifica-
tion was included in the agreement appears to be due to-the fact that it was
already formulated in writing and was adopted in substantially the same form
as it appeared in prior union contracts . There is no reason to believe that
the Respondent in executing the agreement reached at the June 25 meeting
would be in any way prejudiced in implementing , in a satisfactory manner,
the remaining job classifications agreed upon , or that it had any other thought
during the negotiations that culminated in the agreement. If it did have such
misgivings or concern and considered the matter an issue to be resolved in
contractual form and without which no agreement was possible , it was clearly
its duty to so state in a timely and forthright manner. This it did not do
either because it deliberately refrained from prosecuting it as an issue during
contract negotiations in order to serve as a pretext for refusing , later, to execute
an agreement with the Union , or because it came as an afterthought which
the Respondent now seeks to utilize as a defense to its refusal to bargain. There
is no other logical and persuasive explanation of its acquiescence at the negotia-
tions on June 25 in the Conciliator 's action in limiting discussion to the "two
remaining points" in issue and its failure at any time previously or thereafter
to inform the Union that inclusion of the job descriptions was required as a
condition for the Respondent 's execution of the agreement.
Upon the entire record it is found that the Respondent 's refusal to execute
the agreement submitted by the Union on October 22 constituted a refusal to
bargain within the meaning of Section 8(a)(1) and ( 5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring
in connection with Respondent 's operations described in section I, above, have
a close, intimate , and substantial relationship to trade, traffic , and commerce
among the Several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices
as set forth above, I shall recommend that the Respondent cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
MIXERMOBILE MANUFACTURERS, INC. 597
Having found that the Respondent, in violation of Section 8(a)(1) and (5)
of the Act, refused to bargain with the Union, the duly designated representative
of its employees in an appropriate unit, I shall recommend that the Respondent,
on request of the Union, forthwith execute and serve on the Union the final
draft of the bargaining agreement submitted to it by the Union or about Octo-
ber 22, 1963, and in all other respects, upon request, bargain with the Union as
the exclusive representative of all its employees in the appropriate unit concerning
wages, hours, and other terms and conditions of employment, and if an under-
standing is reached embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees of Respondent (including ship-
ping, receiving, and warehouse employees), excluding all clerical employees,
employees of the purchasing, engineering, and parts departments, and guards,
professional employees, and supervisors as defined in the Act, constitute a unit
appropriate for purposes of collective bargaining within the meaning of Section
9 (c) of the Act.
2. The Union, a labor organization within the meaning of Section 2(5) of the
Act, has been at all times on and after June 12, 1962, and now is, the exclusive
representative of all employees in the aforesaid appropriate unit for purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
3. By refusing on and after October 22, 1963, to bargain in good faith
with the Union as the exclusive representative of its employees in the aforesaid
appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (5) of the Act.
4. By the foregoing conduct the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act and thereby has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law
and upon the entire record in the case, it is recommended that the Respondent,
Mixermobile Manufacturers, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment, with the
Union as the exclusive representative of its employees in the previously described
appropriate unit.
(b) In any like or related manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist the Union or any other labor organization, to
bargain collectively through representatives of their own choosing, and to en-
gage in any other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment,
as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies
of the Act:
(a) Upon request by the Union forthwith execute the final draft of the agree-
ment submitted to it by the Union on or about October 22, 1963, and serve
a copy of the same on the Union.
(b) In all other respects, upon request bargain collectively with the Union
as the exclusive representative of employees in the previously described appropriate
unit with respect to rates of pay, wages, hours of work, and other terms and
conditions of employment , and embody in a signed agreement any understanding
reached.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant in Portland, Oregon, copies of the attached notice marked
"Appendix." 2 Copies of said notice, to be furnished by the Regional Director
for Region 19, shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of 60 days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 19, in writing, within 20 days
from the date of the receipt of this Decision, and Recommended Order, what
steps it has taken to comply hexewith.3
2In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a united States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
3In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trail Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Nationaal Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT refuse to bargain with Metal Trades Council of Portland
and Vicinity, AFL-CIO, as the exclusive representative of all our employees
in the appropriate unit described below, or in any like or related manner
interfere with, restrain, or coerce our employees in the exercise of the right
to self-organization, to form labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in any other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as author-
ized in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL, upon request, execute the final draft of an agreement served
on us by the Union about October 22, 1963, and in all other respects will,
upon request, bargain with the aforesaid Union as the exclusive representative
of all employees in the appropriate unit described below, with respect to
rates of pay, wages, hours of employment, and other terms and conditions
of employment, and embody in a signed agreement any understanding
reached. The bargaining unit is:
All production and maintenance employees (including shipping, receiv-
ing, and warehouse employees), excluding all clerical employees, em-
ployees of tho purchasing , engineering , and parts departments, and
guards, professional employees, and supervisors as defined in the Act.
All our employees are free to become, remain, or to refrain from becoming
or remaining, members in the above-named or in any other labor organization.
MIXERMOBILE MANUFACTURERS, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 327
Logan Building, 500 Union Street, Seattle, Washington, Telephone No. 682-3300,
if they have any question concerning this notice or compliance with its provisions.