Monroe

National Labor Relations Board - Board Decisions

May 25, 1971

190 N.L.R.B. 516 (N.L.R.B. 1971)

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monroe and Local 432, International Union of Electri-
cal, Radio and Machine Workers of America, AFL-
CIO
Monroe and Thomas Doyle, Sr., Petitioner and Local
432, International Union of Electrical , Radio and
Machine Workers of America , AFL-CIO. Cases 22-
CA-4001 and 22-RD-268
May 25, 1971
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On October 23, 1970, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed, as
set forth in the attached Trial Examiner's Decision. In
addition, the Trial Examiner found that the Respond-
ent's conduct prior to the election held in Case 22-RD-
268 was not objectionable and recommended the cer-
tification of the results thereof. Thereafter the General
Counsel filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief. The Respondent filed
cross-exceptions to the Decision and a supporting brief,
and a brief in answer to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.
1. The complaint alleged that the Respondent vi-
olated Section 8(a)(1) and (5) of the Act by granting
wage increases and other benefits to employees in the
bargaining unit and by threats of economic reprisals if
the employees remained members of the Union or gave
any assistance or support to it.
The Trial Examiner found that the Respondent did
not give wage increases and other benefits for the pur-
pose of causing the employees to reject the Union. Fur-
ther, he found that the Respondent's actions alleged as
threats of economic reprisals were within the permissi-
ble bounds of campaign rhetoric. Thus he recom-
mended that the complaint be dismissed, and objec-
tions to the election in Case 22-RD-268, encompassing
190 NLRB No. 100
the same factual issues as in the complaint, be over-
ruled, and the results of the election certified. We do
not agree with the Trial Examiner.
The Trial Examiner relied on the Board's decision in
Tennessee Handbags, 179 NLRB No. 161, where an
employer had granted benefits to employees during the
critical period before an election. Under the circum-
stances of that case, the Board found that the prepon-
derance of the evidence did not establish that the em-
ployer had granted and announced the benefits for the
purpose of causing the employees to reject the union,
and dismissed the complaint as to that allegation.
The Board is not convinced that the circumstances
in the instant case are of the same nature as those in
Tennessee Handbags, Here the Union has represented
a unit of Respondent's production and maintenance
employees since 1954, the latest contract between Re-
spondent and the Union having expired on September
30, 1969. This contract covered Respondent's em-
ployees at its Orange and Clifton, New Jersey, plants.
In 1966 the operation at Clifton was made a separate
and distinct operating division of Litton Industries,
called Automated Business Systems,' with its own
management and policies separate from Respondent's
Orange plant. This proceeding is concerned only with
the employees at Respondent's plant at Orange.
Beginning in 1966, Respondent had difficulty in re-
cruiting and retaining employees for jobs within the
bargaining unit due to its wage structure which com-
pared unfavorably with that of other employers in the
area utilizing the same type of employees.
In 1967, Respondent and ABS entered into negotia-
tions with the Union in which the hoped-for goal was
separate contracts for Respondent and ABS. Prior to
these 1967 negotiations, Respondent had prepared a
wage survey which showed Respondent's wage struc-
ture to be considerably lower than other employers in
the survey. However, these negotiations broke down
due to economic issues, including Respondent's failure
to offer any wage increases or fringe benefits.
In January 1969, while Respondent was still ex-
periencing great difficulties in recruiting and retaining
employees in many categories, and had in fact subcon-
tracted out some work with the agreement of the Un-
ion, Respondent and the Union again entered into
negotiations for a separation of the unit employees at
Orange and Clifton. Although the Union at this time
asked for as much as a $1-an-hour increase for some of
the skilled unit employees in order to bring their wage
level to the average paid for the same jobs in the area,
Respondent counterproposed a 3-cent-per-hour in-
crease across the board. The parties later settled on an
average of a 10-cent-per-hour increase. Also out of
' Herein called ABS
MONROE
these negotiations came a memorandum of understand-
ing separating the units.
In April 1969, Respondent again prepared a wage
survey similar to the 1967 survey. As with the 1967
survey, this showed that Respondent's wage scale for
unit employees was considerably below that of other
employers. Its was also below competitive levels in re-
spect to benefits.
In June 1969, Respondent and the Union began
negotiations for a new contract to follow the one due
to expire on September 30, 1969. After negotiations
had begun, the Petitioner filed a decertification petition,
and subsequently filed charges against both the Union
and the Respondent. Because of this, negotiations
ceased on August 5, after at least three bargaining ses-
sions had been held. Although Respondent's manager
of employees compensation, Stewart, testified that Re-
spondent had already planned that its final contract
proposal would encompass the wages and benefits it
unilaterally was to grant later in October 1969, we note
that the contract proposals submitted by Respondent
did not contain these wages and benefits.
On October 13, 1969, 13 days after the collective-
bargaining agreement expired, Respondent began its
granting of wage increases and benefits to the unit em-
ployees. In granting these, Respondent held personal
interviews with each unit employee. Present at these
interviews were Stewart, the employee's immediate
supervisor, and such supervisor's supervisor. At these
interviews the employees were told that there would be
no more checkoff of the union dues; they would be paid
biweekly instead of weekly; there would be no more use
of a timeclock for recording work hours, but the em-
ployees would fill out a weekly timesheet; they were
getting an 8-percent wage increase; they were going to
be allowed to participate on a contributory basis in
Litton Industries' benefit programs not available to
them under the collective-bargaining agreement; a
merit system would determine future salaries; and they
would now be covered under the sick leave plan. The
contributory benefits plans offered the employees in-
cluded additional life insurance, supplemental life in-
surance, major medical insurance, a salary continua-
tion plan, and improved retirement benefits.
On October 22, 1969, all the parties entered into a
Stipulation for Certification Upon Consent Election in
Case 22-RD-268, and the date of the election was set
as November 13. Thereafter, Respondent sent letters to
the employees in the unit on October 31. The letter,
which is alleged to contain a threat of reprisal for sup-
port of the Union, states in part:
We are dedicated to the principle of the dignity of
each individual, and I feel very strongly that each
employee should share in our programs of in-
creased wages, better fringe benefits and pension
plans. This will be possible if we have no union.
517
It is well established that Section 8(a)(1) prohibits
conduct by an employer "immediately favorable to em-
ployees undertaken with the express purpose of imping-
ing upon their freedom of choice for or against unioni-
zation and is reasonably calculated to have that
effect."2
It is also established that the mere timing of the
granting of the benefits during the critical period before
an election does not make the act a violation of Section
8(a)(1), if the circumstances show that it was not done
with the purpose of influencing the employees' choice
in the election.'
The facts in the instant case make untenable a deter-
mination that the Respondent did not grant the benefits
in October to influence the employees' choice in the
upcoming election.
Although Respondent did not know, until it had
already begun the interviews to announce the benefits,
that the Petitioner's appeals from the Regional Direc-
tor's dismissal of the charges against Respondent and
the Union had been denied, it had been advised that the
Regional Director was going forward with the investi-
gation in the representation case, and the Petitioner
had requested that the representation hearing be re-
opened. Although Respondent did not know just when
the election would be held, it had no reason to expect
that there would be no election.
Further, although Respondent had experienced diffi-
culty in recruiting and retaining employees in the unit
because of its low wage scale and lack of benefits for
better than 3 years, it is clear it did nothing to alleviate
this problem while it was bargaining with the Union.
Respondent asserts it did not offer wage increases in
1967 because ABS had a veto power over such an offer
by Respondent. Although Respondent testified that it
was willing to grant wage increases in 1967, its negotia-
tor at this time stated that "the companies" were in no
position to grant wage increases. Also, the evidence
reflects numerous occasions on which either Respond-
ent or ABS made separate supplemental agreements
with the Union, ABS even having upgraded jobs with
raises, without Respondent being affected.
Regarding the January 1969 negotiations between
Respondent and the Union, Respondent testified that it
did not attempt to raise the wages to a competitive level
then because it knew that contract negotiations would
be coming up soon and the Union would be asking for
a big wage increase. This, however, fails to lend cre-
dence to the alleged sudden necessity in October to
raise wages and grant benefits after years of refusal to
do so and shortly before an election, particularly in
view of Respondent's omissions of any such proposals
in its contract negotiations starting in June 1969.
NL R.B. v Exchange Parts Co., 375 U S 405
Tennessee Handbags, Inc, supra
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, the conclusion that these benefits were off-
ered to influence the employees' vote is reinforced by
Respondent's October 31 letter which states that the
increased wages and better fringe benefits and pension
plans "will be possible if we have no union." As the
Supreme Court said in Exchange Parts, "Employees
are not likely to miss the inference that the source of
benefits now conferred is also the source from which
future benefits must flow and which may dry up if it is
not obliged.""
We therefore find that Respondent granted wage in-
creases and added benefits in October for the purpose
of influencing the employees in their choice of whether
or not they wished to be represented by the Union.
We also find that Respondent by its letter of October
31 in effect coerced the employees and threatened them
with economic reprisals if they assisted or supported
the Union. These acts we find were in violation of
Section 8(a)(1) of the Act.
2. The objections to the election raised substantially
the same factual issues as were raised in the unfair labor
practice complaint. The Trial Examiner recommended
they be dismissed and the results of the election cer-
tified. For the reasons stated before in finding the
8(a)(1) violations, we also sustain these objections to
the election, and will set aside the results thereof.
3. The General Counsel seeks a bargaining order
under the doctrine set forth in N.L.R.B. v. Gissel Pack-
ing Company, 395 U.S. 575. There is no specific evi-
dence that the Union represented a majority of Re-
spondent's Orange employees, apart from those now in
Clifton; nor may it be presumed that it did at the time
of the unfair labor practices or the election. Although
the Union had been certified as the collective-bargain-
ing representative in 1954, the unit has changed sub-
stantially since that time . The unit at Respondent's
Orange plant which was found appropriate by the Trial
Examiner, with whom we concur, is only one segment
of the original certified unit, in that it includes em-
ployees only at'Orange, and the production operations
carried on at Orange in the past have all been trans-
ferred out of that plant.
The unit certified in 1954 was made up of Respond-
ent's employees at its Morris Plains and Orange plants,
where Respondent was at that time engaged in manu-
facturing. Successive bargaining agreements with the
Union followed this certification. Subsequently, the
Morris Plains plant was closed and the operations
transferred to Bristol, Virginia, and Orange. Later the
Orange plant ceased doing any production work, it
being transferred to Bristol and Clifton, New Jersey.
Further the unit found appropriate herein is not the
same as the unit covered by the most recent contract
between Respondent and the Union. As noted above,
the employees of ABS at Clifton were also represented
by the Union under that contract. By agreement of the
parties, ABS and Respondent now have separate units,
the unit at Respondent's plant being only about one-
sixth the size of the unit covered by the 1965 contract.
Also, a decertification petition was filed at Respond-
ent's,plant in July 1969, and in October 1969, Respond-
ent, the Union, and the RD Petitioner entered into a
Stipulation for Certification Upon Consent Election.
For all of the foregoing reasons , we are not finding
a violation of Section 8(a)(5), nor are we issuing a
bargaining order. Rather, we will order that a second
election be conducted in the unit found appropriate.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above,
occurring in connection with the Respondent's opera-
tions as described in the Trial Examiner's Decision,
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 ob-
structing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices it will be recommended
that it cease and desist therefrom , and take certain
affirmative action designed to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. Monroe is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. Local 432, International Union of Electrical, Ra-
dio and Machine Workers of America, AFL-CIO, is a
labor organization within the meaning of the Act.
3. By engaging in certain described conduct referred
to herein , Respondent interfered with , restrained, and
coerced its employees in the exercise of rights guaran-
teed to them by Section 7 of the Act, and thereby
engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)(1) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
5. The Respondent has not committed any unfair
labor practices other than those found herein.
' NL R.B v Exchange Parts Co, supra.
MONROE
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Monroe,
Orange, New Jersey, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from unlawfully granting, or an-
nouncing the grant of, economic benefits for the pur-
pose of undermining the Union; threatening employees
with economic reprisal for assistance to, or support of,
the Union; or, in any like or related manner interfering
with, restraining, or coercing employees in the exercise
of rights guaranteed by the Act. However, nothing
herein shall be construed to require the Respondent to
rescind or discontinue new wage rates or other benefits
previously granted.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its Orange, New Jersey, plant copies of the
attached notice marked "Appendix."5 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by the Respondent's
representative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b)Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
It is further ordered that the election held on
November 13, 1969, in Case 22-RD-268, be, and it
hereby is, set aside, and said case is hereby remanded
to the Regional Director for Region 22 to conduct a
new election.
[Direction of Second Election' omitted from publica-
tion.]
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
' In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Underwear
Inc, 156 NLRB 1236, NLRB. v Wyman-Gordon Co, 394 U S 759
Accordingly, it is hereby directed that an election eligibility list, containing
the names and addresses of all the eligible voters, must be filed by the
Employer with the Regional Director for Region 22 within 7 days after the
date of issuance of the Notice of Second Election by the Regional Director
The Regional Director shall make the list available to all parties to the
election No extension of time to file this list shall be granted by the Regional
Director except in extraotdinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed
519
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT grant you wage increases or
other benefits to discourage you from designating
Local 432, International Union of Electrical, Ra-
dio and Machine Workers of America, AFL-CIO,
or any other union as your representative for col-
lective bargaining. However, nothing requires us
to discontinue any benefits previously given to
you.
WE WILL NOT threaten economic reprisals if
you assist or support the above-named Union or
any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed in Section 7 of the
National Labor Relations Act, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment where authorized in Sec-
tion 8(a)(3) of the Act.
MONROE
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Building, 16th Floor, 970 Broad Street,
Newark, New Jersey 07102, Telephone 201-645-2100.
TRIAL EXAMINER'S DECISION
ARTHUR M. GOLDBERG, Trial Examiner: Upon a charge
filed on January 12, 1970, by Local 432, International Union
of Electrical Radio and Machine Workers of America, AFL-
CIO (herein called the Union), the Amended Complaint and
Notice of Hearing herein issued on April 14, 1970,1 alleging
that Monroe (herein called Monroe or the Respondent) vi-
olated Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended (herein called the Act), in October 1969, by
granting wage increases and other benefits to employees in
the bargaining unit spelled out in the Amended Complaint
' The original Complaint and Notice of Hearing issued on March 25,
1970
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and by threats of economic reprisal if the employees remained
members of the Union or gave any assistance or support to
it. Respondent denied all material allegations of the Com-
plaint including the appropriateness of the unit set forth in
the Complaint.
By Order dated March 11, 1970, the National Labor Rela-
tions Board (herein called the Board) consolidated for hear-
ing with the unfair labor practice complaint certain objec-
tions to conduct affecting the results of the election filed by
the Union. This action was predicated on the Board's deter-
mination that the issues involved in the complaint allegations
were the same as those raised by the Union's objections.
All parties participated in the hearing in Newark, New
Jersey, on July 15 and 22 through July 24, 1970, and were
afforded full opportunity to be heard, to introduce evidence,
to examine and cross-examine witnesses, to present oral argu-
ment, and to file briefs. Oral argument was waived. By Order
dated August 11, 1970, rejecting an exhibit offered by Re-
spondent the record herein was closed. This delay was occa-
sioned by the late receipt of the exhibit file necessary for the
above ruling. Briefs were filed on September 16, 1970, by
General Counsel and the Respondent.
Upon the entire record in the case,' my reading of the
briefs, and from my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Monroe, a New York corporation, maintains its principal
office and plant at 550 Central Avenue, Orange, New Jersey
(herein called the Orange facility), and at various other places
of business throughout the United States and Canada, and is
engaged in the manufacture, sale, and service of calculators,
adding machines, and related products. Respondent's Orange
facility is its only facility involved in this proceeding.
During a 1-year representative period Respondent in the
course and conduct of its business operations manufactured,
sold, and distributed at said plant products valued in excess
of $50,000, of which products valued in excess of $50,000
were shipped from the Orange facility in interstate commerce
directly to States of the United States other than the State of
New Jersey.
The Amended Complaint alleged, the answer admitted,
and I find that Respondent is and has been at all times
material herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and meets the
Board's standards for assertion of its jurisdiction.
i On September 4, 1970, counsel for General Counsel filed a Motion To
Correct The Record of the hearing (hereby marked Trial Examiner's Exhibit
3) and, on September 10, 1970, I issued an Order To Show Cause (hereby
marked Trial Examiner's Exhibit 4) why the corrections indicated in Gen-
eral Counsel's Motion should not be made in the transcript Thereafter, on
September 10, 1970, counsel for the Respondent filed a Motion To Correct
The Record (hereby marked Trial Examiner's Exhibit 5) in other respects,
and, on September 16, 1970, I issued an Amended Order To Show Cause
(hereby marked Trial Examiner's Exhibit 6) why the corrections indicated
in Respondent ' s Motion as well as those in General Counsel's Motion
should not be made in the transcript On September 17, 1970, General
Counsel responded (said response being hereby marked Trial Examiner's
Exhibit 7) stating that he had no objection to amending the record pursuant
to Respondent's Motion After due consideration it is hereby ordered that
the corrections indicated in said Motions be made and that the transcript
be corrected accordingly It is further ordered that Trial Examiner's Exhibits
3, 4, 5, 6, and 7 be received as exhibits in this proceeding and be made part
of the record herein
II THE LABOR ORGANIZATION INVOLVED
Local 432, International Union of Electrical , Radio and
Machine Workers of America , AFL-CIO, is and has been at
all times material herein a labor organization within the
meaning of Section 2 (5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At the hearing, on July 22, 1970, all parties entered into the
following stipulation of facts:
IT IS HEREBY AGREED AND STIPULATED, by
and between the undersigned parties, that:
Pursuant to a Decision and Direction of Election of
the National Labor Relations Board issued on July 22,
1954, in 109 NLRB 314, for a unit composed of all
production and maintenance employees at the Em-
ployer's office machine plants at Morris Plains and
Orange, New Jersey, including timekeepers, truck driv-
ers, and cafeteria workers, but excluding expediters,
office clerical employees, professional employees, techni-
cal employees , watchmen , superintendents , assistant su-
perintendents , foremen , assistant foremen , and super-
visors, as defined in the Act, an election was held and the
I.U.E. was certified as the collective bargaining agent for
the above unit on September 13, 1954. At this time
Respondent was engaged in a manufacturing operation
at both its Morris Plains and Orange plants, and the
parties thereafter entered into successive bargaining
agreements.
Subsequently, over a period of time, the Morns Plains
facility was closed, and part of the operation transferred
to a plant in Bristol, Virginia, and part to the Orange
facility. Eventually all of the production operation was
transferred out of the Orange facility, the calculating
machine production going to Bristol, Virginia, and the
non-calculating machine production to a plant acquired
and opened in Clifton, New Jersey, in 1965.
On August 25, 1965 the parties entered into a collec-
tive bargaining agreement covering the Orange and Clif-
ton plants for a unit consisting of all production and
maintenance workers, janitors, factory cost clerks, and
truck drivers, employed in the Orange and Clifton, New
Jersey, facilities , excluding all superintendents , assistant
superintendents, foremen, assistant foremen, super-
visory employees generally, watchmen, expediters, engi-
neering, research and model shop employees, office and
clerical employees employed by the Company, the tech-
nicians engaged in tests and trouble-shooting on final
and sub-assembly. This contract expired on September
30, 1969.
In 1966 the Monroe operation at the Clifton plant
concerning non-calculating machine products was made
a separate and distinct operating Division of Litton In-
dustries, called Automated Business Systems. Auto-
mated Business Systems had its own management and
policies, separate from Monroe. Accordingly, the parties
agreed by written memorandum of February 18, 1969
that unit employees employed at the Monroe Orange
facility would thereafter constitute a unit separate and
distinct from the unit employees employed at the Auto-
mated Business Systems Clifton plant. The Monroe
Orange plant employed approximately 60 such em-
ployees, and there were over 300 such employees at the
Automated Business Systems Clifton plant.
Negotiations for a new contract for the Orange unit
began in June 1969 but terminated in August 1969.
MONROE 521
There is presently no collective bargaining agreement for
the Orange unit.
Pursuant to the RD petition which had been filed in
22-RD-268 on July 11, 1969, the Respondent, the Un-
ion, and the RD Petitioner herein entered into a Stipula-
tion for Certification upon Consent Election on October
22, 1969, wherein the unit in Orange was referred to as
follows. All employees employed the the Employer's
Orange, New Jersey, premises including stock clerks,
janitors, packers, shippers, electricians, drivers, chau-
ffeurs, parts clerks, laborers, painters, plumbers, ma-
trons, carpenters, and machinists, but excluding all office
clerical and printing and mailing employees, guards, and
supervisors as defined in the Act.
There are approximately 60 employees in the unit at
Orange. There are also approximately 690 non-repre-
sented employees at the Orange location who are
primarily management, administrative, technical, and
office clerical personnel. The Orange facility serves as the
Headquarters for the Monroe Division of Litton Indus-
tries, and no manufacturing operations are conducted
there.
Between October 13 and 17, 1969, Hamilton Steward
met separately with each of the unit employees at the
Orange location. Also present were the employees' im-
mediate supervisor and departmental manager.
Each employee was advised that he would be given an
8% wage increase retroactive to October 6, 1969, and
that a merit review system was being established,
whereby each employee would be periodically reviewed
in the future to determine if he merited further wage
increases.
The increases, effective as of October 6, 1969, for each
classification, amount to:
1 Stock Clerks 20'/, cents /hr.
2. Janitors 19 cents /hr.
3. Machinists 26% cents /hr.
4. Plumbers 26 cents /hr.
5. Painters 25 cents /hr.
6. Electricians 26% cents /hr.
7. Carpenters 26 cents /hr.
8. Matrons 19 cents /hr.
9. Drivers and Chauffeurs 24% cents / hr.
10. Laborers 20'/, cents /hr.
11. Parts Clerks 19 cents /hr
12 Packer Shippers 29% cents /hr.
Each employee was also advised that as of that date,
he could accrue 10 days of paid sick leave per year up
to a maximum of 65 days and that credit for past service
would be given.
Each employee was also given a set of booklets with
enrollment cards for certain benefit plans which the Re-
spondent was making available to the employees at the
latters' option. Meetings were held on October 15, 1969
at which these benefits were explained to interested em-
ployees. These benefits included major medical insur-
ance (which provided for payments for expenses in-
curred after enrollment although the original illness or
injury was suffered prior to enrollment but not earlier
than January 1, 1969), basic and supplemental life insur-
ance, salary continuation insurance, and retirement
plan.
It is further stipulated that the letter of October 31,
1969, which is appended to the Acting Regional Direc-
tor's Report on Objections of January 5, 1970, was dis-
tributed to all unit employees on or about October 31,
1969.
All employees were reviewed pursuant to the Merit
Review System in January 1970, April 1970 , and July
1970
In January 1970, substantially all employees received
a wage increase of 3%-4% In the April 1970 review,
of the employees received wage increases of 3%-4%.
In the July 1970 review , those not receiving increases in
April, received 3%-4% wage increases.
B. The Unit
The changes in Respondent's operations at its Orange
facility which have taken place over the course of the years
since the Board's certification issued in 1954 are spelled out
in the stipulation of the parties, supra, and to avoid prolixity
are not restated at this point. Suffice it to say that of the unit
certified, "all production and maintenance employees at the
Employer's office machine plants at Morris Plains and
Orange, New Jersey, including timekeepers, truck drivers,
and cafeteria workers, but excluding expediters, office clerical
employees, professional employees, technical employees,
watchmen, superintendents, assistant superintendents, fore-
men, assistant foremen, and supervisors, as defined in the
Act," all that remains of the unit are the Orange maintenance
employees and drivers and certain stockmen, packer-ship-
pers, and parts clerks who appear to be production em-
ployees, although the stipulation of the parties states "[e]ven-
tually all of the production operation was transferred out of
the Orange facility."
The recognition clause of the 1965 collective-bargaining
agreement varied slightly from the unit definition of the cer-
tification. The classifications of timekeepers and cafeteria
workers were omitted and those of janitors and factory cost
clerks were added.
As to unit definition the February 18, 1969, memorandum
of agreement providing for severance of the Orange facility
from the Clifton plant of Automated Business Systems
(herein called ABS Clifton) stated only:
. employees represented by the Union at Monroe's
Orange, N.J. plant will be recognized as an appropriate
unit for bargaining and will be separated from the appro-
priate unit for bargaining for employees who are repre-
sented by the Union at the Automated Business Systems
plant in Clifton, N.J.
When, on October 22, 1969, the parties entered into a
Stipulation for Certification Upon Consent Election in Case
22-RD-268, the unit was specified in more detail but within
the scope of that contained in the original certification. In the
Stipulation for Certification the unit reads.
All employees employed at the Employer's Orange,
New Jersey premises, including stock clerks, janitors,
packer-shippers, electricians, drivers, chauffeurs, parts
clerks, laborers, painters, plumbers, matrons, carpenters
and machinists, but excluding all office clerical and
printing and mailing employees, professional and techni-
cal employees, guards and all supervisors as defined in
the Act.'
At the hearing herein Respondent offered neither evidence
nor argument in support of its denial that the unit alleged is
an appropriate one for the purposes of collective bargaining.
Instead counsel for Respondent stated, "I think the general
counsel has the burden of [proving] that this is an appropriate
unit and the Board certainly isn't bound by a stipulation of
the parties in reaching whether or not it is appropriate."
' For the effect of this Stipulation for Certification Upon Consent Elec-
tion in a subsequent proceeding based on charges of refusal to bargain see
The Baker and Taylor Co., 109 NLRB 245, 246-247
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel added, " ... for the purposes of this hearing, we are
taking the position that general counsel has to prove all the
essential allegations of the complaint."'
What little testimony was adduced on the unit question
established that there are over 600 unrepresented employees
at Monroe's Orange facility and about 60 who fell within the
unit definition. The janitors, maintenance laborers, drivers,
and skilled maintenance employees (carpenters, plumbers,
electricians, painters, and maintenance machinists) were un-
der the jurisdiction of Respondent's office facility department
where they reported to the manager of office facilities who in
turn reported to the vice president of administration and
personnel. The maintenance employees reported to the
maintenance office and shop area where they keep their
clothes and tools and are assigned their jobs as needed. The
janitors work throughout the facility but are generally as-
signed to work in specific areas.
The stockmen and parts clerks report to the stockroom
foreman and work in a different building from the mainte-
nance employees.
The packer-shippers work under the transportation super-
visor in a warehouse separate from the main facility. There,
the packer-shippers unload trucks, take machines out of
boxes and repack them, and label, weigh, seal, and then load
the boxes on trucks for shipment to Respondent's branch
offices.
The stockmen and parts clerks handle orders for parts for
Monroe machines, and are responsible for receipting, storing,
and issuing parts to branch offices, dealers, and subscribers
throughout the world.
The drivers report to the manager of the office facility
department. Their duties consist of picking up and delivering
mail, packages, and parcels. As well, the drivers spend some
40 to 50 percent of their time driving company executives to
and from the airports serving the area and while in the per-
formance of their duties the drivers are away from the Orange
facility, their trips do not require that they be away overnight.
Hamilton Stewart, Respondent's manager of employee
compensation, testified that stockmen in the printing and
mailing department perform work similar to that done by
unit personnel. As noted, the unit spelled out in the Certifica-
tion for Consent Election excluded "printing and mailing
employees." Stewart agreed that at the time Respondent en-
tered into the Stipulation for Consent Election it did not
contend that these stockmen in the printing and mailing de-
partment should be included in the unit.
At the representation hearing held in Case 22-RD-268
counsel appearing for Monroe summed up his description of
unit personnel in these words: "The bargaining unit people in
Orange are maintenance and service classifications. In other
words, it is their function to maintain and service the office
building."
Unit personnel had their own payroll schedule and were
hourly rated.' Until the changes made by Monroe in their
working conditions in October, unit personnel used a time-
clock to record their hours worked while the unrepresented
employees did not. Benefits programs for the unrepresented
employees were different from and greater than those enjoyed
by unit employees.
Stewart testified that the unrepresented employees are
what are generally referred to as "white collar workers "
When asked if the unit employees were "blue collar," Stewart
4 At the representation hearing held in Case 22-RD-268 Respondent
took "the position that the Orange facility of Monroe is the appropriate unit
for the purposes of this petition "
' Testimony of Margaret Rutherford, Respondent's supervisor of em-
ployee benefits
maintained that they were office workers, stating that he
would consider a plumber or carpenter who worked for the
division headquarters to be an office worker if he was doing
maintenance work in an office.
The unit as defined in the Complaint and Stipulation for
Certification Upon Consent Election conforms to the boun-
daries of the original certification issued by the Board' and is
as well "based upon [a] definite bargaining pattern." Allbrit-
ten Motors, Inc., 87 NLRB 193. No other labor organization
seeks to represent a unit different from the one asserted as
appropriate herein and the conditions of employment of the
employees within the unit were different from those of the
unpresented employees prior to the unilateral acts of Re-
spondent complained of in the Complaint (use of a timeclock,
separate payroll schedules, different benefits programs, and
hourly rate of pay). Moreover, as stated by Monroe's
manager of employee compensation, the employees and clas-
sifications excluded from the unit are "white collar workers."
Despite Stewart's unique concept of office employees, I find
that the unit employees and classifications fall within the
usual definition of "blue collar workers" and therefore do not
share a community of interests with the unrepresented em-
ployees
All things considered, I find the unit alleged in the Com-
plaint, spelled out in the language set forth by the parties in
their Stipulation for Certification Upon Consent Election, to
be an appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.'
C. The Events Prior to the Wage and Benefits Increases of
October 1969
1. History of representation
The Union has represented the employees at ABS Clifton
and the unit at Monroe Orange for approximately 18 years
succeeding the United Electrical Workers (herein called UE).
Prior to the UE the employees were represented from 1937
by a independent union. At one time the-Union represented
employees employed by others than ABS Clifton and Monroe
Orange, but at all times material herein its membership was
limited to employees of those two employers.
At the time of the events herein three of the Union's officers
were employed by Monroe, Helen Kinney, Betty Kane, and
Lawrence Ramella
The last collective-bargaining agreement entered into by
the parties had a term running from August 1965 until Sep-
tember 30, 1969. The contract provided for two 7-cent in-
6 Cf NL R B v Porter County Farm Bureau Co-operative Assn, Inc,
314 F 2d 133, 136 (CA 7)
' Section 9 "(b) The Board shall decide in each case whether, in order to
assure to employees the fullest freedom in exercising the rights guaranteed
by this Act, the unit appropriate for the purposes of collective bargaining
shall be the employer unit, craft unit, plant unit, or subdivision thereof
Provided, That the Board shall not (1) decide that any unit is appropriate
for such purposes if such unit included both professional employees and
employees who are not professional employees unless a majority of such
professional employees vote for inclusion in such unit; or (2) decide that any
craft unit is inappropriate for such purposes on the ground that a different
unit has been established by a prior Board determination, unless a majority
of the employees in the proposed craft unit vote against separate representa-
tion or (3) decide that any unit is appropriate for such purposes if it includes,
together with other employees, any individual employed as a guard to en-
force against employees and other persons rules to protect property of the
employer or to protect the safety of persons on the employer's premises, but
no labor organization shall be certified as the representative of employees
in a bargaining unit of guards if such organization admits to membership,
or is affiliated directly or indirectly with an organization which admits to
membership, employees other than guards "
MONROE
creases during its 4-year term , the second having been paid
to the employees in the spring of 1968.
2. Monroe's difficulties in recruiting and retaining
employees
Monroe had experienced difficulty in recruiting and retain-
ing employees for jobs within the bargaining unit beginning
in 1966 .8 Hamilton Stewart , Monroe's manager of employee
compensation , testified that Respondent 's experience in re-
cruiting employees "was extremely unfavorable from the time
[he] started working for the Company " in November 1966.
In 1968, Stewart stated , the situation worsened . Respondent
found it very difficult to recruit qualified employees for open
jobs and many times requisitions for jobs would remain
unfilled for several months before a qualified applicant could
be obtained . Most of these problems arose in filling jobs in the
skilled maintenance and janitor classifications . Price testified
about the trouble Monroe was experiencing in hiring plum-
bers and electricians . In one instance a requisition for an
electrician went unfilled for 9 months. After a survey of the
labor market by Monroe 's personnel department a general
requisition for plumbers was withdrawn as it was decided
that the jobs could not be filled.
Price testified that "For three , four or five years , now, we
have been having an awful lot of trouble in placing our jani-
tors, of course, the wage scale is so low that I did talk to Mr.
Stewart about increasing the wage structure , where we could
get a better type of janitor ." Stewart replied that they would
have to take the matter through channels. Price also spoke to
Cummings who handles new placements for Respondent.
Price asked Cummings if anything could be done about wages
and Cummings also replied that he would have to follow
through on channels.
As to packer-shippers , Stewart testified that supervisors
had registered complaints with him "ever since I have been
with the Company about the difficulty in hiring people in that
department."
Stewart testified that in 1968 the situation with hiring jani-
tors became so critical that at a meeting with the Union
Monroe proposed hiring an outside contractor to perform the
necessary janitorial services . The Union agreed on the condi-
tion that Respondent 's own janitors worked 5 hours of over-
time each week and the outside janitorial contractor was
brought in for a 6-month period.
As well as contracting for janitorial services Monroe has
used a subcontractor for air-conditioning and heating mainte-
nance and was doing so when Stewart came to the Company
in 1966.
Stewart explained that among production and mainte-
nance employees the generally accepted figure for employee
turnover is 10 percent. However, during the first 6 months of
1969, the turnover rate at Monroe for janitors and packer-
shippers was well over 50 percent. This represented addi-
tional costs to the Company due to the expense of recruiting
and training new employees , the cost of terminating those
who left, and the reduced efficiency of new employees who
did not do their jobs as well as experienced help.
In addition unit employees were working a considerable
amount of overtime . In 1968, 30 of the 60 people in the
bargaining unit worked an average of 8 hours per week of
overtime . During the first 6 months of 1969 unit personnel
averaged 3.2 hours of overtime per week.
Price testified that he passed on to Stewart employee com-
plaints concerning their wage rates. Price told Stewart that
Monroe was unable to retain janitors because the wage struc-
' Testimony of Chester Price , Respondent's manager of office facilities
523
ture was too low. Stewart testified that the Union was ap-
proached about the matter . The Union had also been receiv-
ing complaints from its members, particularly those in the
skilled maintenance areas, about the wage levels. However,
because any wage adjustments at Monroe would have had to
be made at ABS Clifton as well , they were unable to reach
agreement.
At this same time ABS Clifton was unilaterally making
wage adjustments for its job classifications which were differ-
ent from those at the Monroe Orange facility.
3. The 1967 wage survey
Prior to negotiations among the Union , ABS Clifton, and
Monroe in 1967 which Respondent believed would lead to a
new contract , Hamilton Stewart prepared a wage survey
comparing rates paid by Monroe to employees in unit classifi-
cations with those for comparable classifications paid by
other employers in the northern New Jersey labor market.
This survey is dated October 1967. The wage figures for
competing employers were obtained from surveys conducted
by the Bureau of Labor Statistics for Newark and Jersey City,
the Employers Association of North Jersey, and an unnamed
surveying service which makes as a condition for obtaining
its statistics a pledge that its identity will remain confidential.
In all classifications compared Stewart 's survey disclosed
that Respondent 's maximum wage scale for unit employees
was below the weighted mean and weighted maximum wages
paid by the employers included in the three surveys utilized.
The results of Stewart 's survey , omitting the individual re-
sults of the three surveys utilized , follow. Explanatory foot-
notes have been added .[See Appendix A.]
In further explanation examination of the second classifica-
tion listed on the survey, plant attendant (janitor ), disclose
that the collective -bargaining agreement provided for a three-
step wage progression . Employees in this classification were
hired by Monroe at $2.16 per hour , advanced to $2.21 after
3 months of employment , and 3 months later reached the top
of the job scale $2.26. Of all the employees in the three
surveys utilized by Stewart there were 3,916 employees in
comparable classifications. Computed on the basis of a
weighted average, Stewart determined that the mininum av-
erage wage for these employees was $2.20 per hour, the mean
wage was $2 .44, and the average maximum hourly rate of pay
was $2 . 64. Thus the top rate paid by Monroe for janitors in
1967 was 18 cents below the mean wage for the 3,916 em-
ployees covered by the survey and 38 cents per hour below
the average maximum rate.
4. The 1967 negotiation
In September 1967 negotiations took place among the Un-
ion, Monroe , and ABS Clifton . The purpose and progress of
these negotiations were succinctly set forth in notes taken by
Hamilton Stewart and in the memorandum of understanding
entered into by the parties. In pertinent part these documents
are herein set forth. The first meeting took place on Septem-
ber 12, 1967•
Mr. St . John [represneting Monroe] opened the meeting
by explaining to the union the purpose of the meeting.
He stated that the companies expressed mutual interest
with the union on the possibility of re-opening the exist-
ing contract . He advised the union that the companies
had discussed the possibility and effects of this before-
hand , taking into consideration the problem of resolving
those issues which are currently outstanding . It was felt
by both managements that these issues might be tabled
temporarily with the understanding that they would be
re-opened for discussion after contract discussions. He
further advised the union that the companies' intention
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is to propose separate contracts for Monroe and A.B S.
Mr. Powdermaker stated that A.B S. concurred in the
position taken by Monroe with respect to the possibility
of re-opening the contract.
Mr. Blackman [representing the Union] stated that in
re-opening the contract and in proposing two separate
contracts, he felt a time table should be agreed upon and
ground rules set. He asked if there were any suggestions
on this issue.
Mr. Kenny [representing the Union] suggested that the
managements and the union collect their thoughts on
their particular ideas and meet jointly for discussion at
which time additions or deletions could be made as
necessary.
It was agreed that a joint meeting would be held on
September 26 for this purpose.
The two company managements then presented to the
union their position with respect to two separate con-
tracts and the underlying circumstances which pro-
moted this decision set forth as follows by Mr. St. John:
1. Clifton is basically a manufacturing operation;
Orange completely a service operation with differ-
ent problems. This has become obvious during the
general monthly meetings at which the discussion
of problems has been those pertinent to one location
or have remained unresolved due to unlike circum-
stances.
2. Up to this time, Monroe has had a vested interest
in the Clifton operation since it was producing
primarily Monroe products. This production within
the next few months will be totally transferred to
Bristol.
3. The creation of a third location by the move of
A.B.S. headquarters to Carlstadt has compounded
the problems of proper and effective communica-
tions between the three parties.
4. The terminology of the existing contract does not
meet the specific needs of the two distinct opera-
tions. Decisions are frequently made on the basis of
past practices or extensive compromise, and prob-
lems are resolved by means of a Memorandum of
Agreement, as a supplement to the written contract.
* * * * *
A general discussion was held on the purpose of a con-
tract and its usefulness, Mr. St. John emphasized the
importance of recognizing the fact that the present con-
tract is not applicable to Monroe which is no longer a
production facility.
Discussion on setting a time table and ground rules was
held. Mr. Blackman stated that 60 days is the time al-
lowed normally for contract negotiations. He suggested
October 1 as the date to commence such discussions.
The companies felt this was not sufficient time for prepa-
ration and requested a date of November 1 After further
discussion, it was agreed that the 60 day period would
extend from October 15 through December 15, 1967.
Mr. St John advised the union that in addition to the
usual representatives, Monroe would have Mr. Lou Lib-
hart, who is Corporate Labor Relations Consultant
represent both A.B.S. and Monroe
*
Discussion of the Memorandum of Understanding was
then resumed
The union stated that a "no strike" provision could be
part of the Memorandum of Understanding. However,
they requested assurance from the companies that pend-
ing issues would not be left unresolved.
Mr. Kenny then stated the unresolved issues, namely,
the Maintenance Job Classifications and Holiday Pay
Calculation. He mentioned the third stage grievance
with Monroe on Holiday Pay Calculation, stating that if
not resolved, the union will be forced to take it into the
fourth stage He further stated that it is the union's
desire to have all outstanding issues resolved during the
discussions, if possible. The companies agreed that this
was their objective also.
Mr. St. John stated that the managements could not
foresee future problems and if they occur and can not be
resolved during contract discussions, the companies
would like assurance that they could be resolved at fu-
ture meetings.
Mr. Blackman stated that the union would go along with
this as long as discussions were not dragged on indefi-
nitely.
Discussion was held with respect to resolving separate
issues, i.e., Monroe's problems and A.B.S.' problems,
during negotiations. Mr. Stewart stated that the
proposed Memorandum of Understanding must clearly
state that agreement must be reached mutually by all
three parties involved.
* * *
The point was emphasized by the companies that al-
though initial discussions can be with A.B.S.-Clifton,
discussions with the companies must be held on a con-
current basis and terminate within the agreed upon
period. •
A joint meeting was agreed upon to be held on Tuesday,
September 26 at 10:00 A.M. at Orange. A confirming
memo will be distributed prior to that meeting.
Mr. St. John advised the union that Mr. Lou Libhart will
be invited by the managements to the September 26
meeting at which time will be introduced to the union.
On September 26, 1967, the parties entered into a memo-
randum of understanding setting forth the ground rules for
their negotiations, providing in pertinent part:
1. Discussions shall be initiated for the purpose of estab-
lishing separate Collective Bargaining Agreements cov-
ering present bargaining unit employees located at the
Monroe International Offices at Orange, New Jersey,
and the present bargaining unit employees located at the
Automated Business Systems Plant located at Clifton,
New Jersey, such separate agreements, when and if ac-
cepted by both the Union and the managements con-
cerned and duly accepted and ratified, to replace the
existing agreement covering the employees at both loca-
tions Such agreement will constitute recognition that
each of such groups is an appropriate unit for collective
bargaining purposes. Such discussions will be conducted
in accordance with, and on the terms set forth in this
Memorandum of Understanding.
2. Concurrent but independent discussions between the
Union and the managements of Monroe International
and Automated Business Systems shall commence on or
after October 15, 1967 and shall continue until agree-
ments have been reached or December 15, 1967, which-
ever shall first occur.
3. The discussions to be conducted pursuant to this
Memorandum of Understanding shall in no way affect
the existing Collective Bargaining Agreement above re-
ferred to, nor shall such discussions terminate, modify or
MONROE
alter the existing Collective Bargaining Agreement or
any of its terms and conditions (as supplemented and
amended to the date of this Memorandum of Under-
standing) unless and until all parties have agreed to
terms and conditions for new and separate Collective
Bargaining Agreements , which new agreements have
been duly executed and ratified by the parties.
* * * * *
6. There shall be no limitations on the subjects discussed
pursuant to this Memorandum of Understanding except
those set forth and agreed to in advance , but the parties
will submit to each other , in writing , the proposed addi-
tions, changes and deletions to the present Collective
Bargaining Agreement encompassing the areas each
party desires to modify . Items which are not so pre-
sented shall be deemed agreed to as presently set forth
in the existing Collective Bargaining Agreement.
The circumstances under which the negotiations were ter-
minated without the parties having reached agreement are set
out below in Stewart 's notes of the last meeting on November
6, 1967:
The meeting was opened by Mr . Libhart . He reviewed
the original objectives and reasoning on the part of
Monroe and ABS for initiating contract discussions
years prior to its expiration date. He stated that during
early discussions between the two companies , considera-
tion was given to dealing with this matter through the
National Labor Relations Board to determine the appro-
priateness of the present bargaining unit . However, after
further consideration , both companies preferred to reach
mutual agreement directly with the union through con-
tract discussions . The companies ' primary intent was to
split the contract , writing two separate contracts in lan-
guage which would be more applicable to the particular
locations and more beneficial to the employees . This, he
stated , did not seem to be the pnmary issue from the
union 's point of view . It had become apparent that the
union 's pnmary objective was economic in nature, and
the companies are not financially in the position to grant
the economic concessions necessary to reach a mutually
satisfactory agreement He advised the union that if they
could not agree to continue discussions for the primary
purpose of creating two separate contracts rather than
on the basis of economics , the companies did not wish
to continue discussions.
Mr. Blackman responded by stating the union had re-
ceived the impression that there was money available.
The union had agreed to premature opening of the con-
tract based on the companies ' needs with respect to the
Clifton Operation . He felt that the union had met the
company more than half-way. He referred to previous
occasions when the union agreed to a premature opening
of the contract that resulted in their settling for less than
they normally would have at the normal contract expira-
tion . Now, with two more years before the contract ex-
pires, the union has agreed again to premature opening
of the contract , after agreement from the Executive
Board and approval of the membership . He pointed out
that the employee reaction if discussions are terminated
will be one of disappointment which could be damaging
to company -employee relationships . His feeling is that
the company was reneging on a commitment. He re-
minded the company that if the union had wanted to,
they could have forced the strike issue as a tool for
collective bargainings.
525
Mr. Libhart stated that he had personally attended the
past few meetings and he felt it was impossible to pin-
point exactly when the misunderstanding developed or
who was to blame.
Mr. St. John stated that as far as Monroe was concerned,
neither the local nor the International had misrepre-
sented their positions at any time during this period.
Mr. Blackman then stated that the original intent of the
Memorandum of Understanding could no longer be car-
reid out and it was better to end discussions at this point.
The local would advise their membership and, hopefully,
those issues which are presently outstanding would be
resolved as quickly as possible.
Mr. Libhart advised the union that it was the mutual
feeling of the companies that joint meetings between
Monroe, ABS and the Local would no longer be advisa-
ble. He suggested that Monroe and ABS have separate
monthly meetings with the union, as appropriate.
Mr. Kenny stated that the union was in agreement with
this point, and made references to the current outstand-
ing Monroe issues, namely the holiday pay calculation
which is in the third step of the grievance procedure, and
the skilled maintenance classifications.
Mr. St. John reminded the union that , as agreed, these
issues if not resolved during contract discussions would
be reinstated for discussion and agreement at the end of
the contract discussions . However, agreements reached
between Monroe and the Local would not necessarily
represent agreement between ABS and the Local, and
vice versa.
Mr. Libhart emphasized again that the reason for dis-
continuing discussions on the part of the companies was
because there was no mutually advantageous basis for it.
Mr. Kenny agreed and felt it was best to end the discus-
sions at this time. He referred to the Memorandum of
Understanding in which this point was clearly made. He
further stated that it was his sincere hope that everyone
understood his conduct was in the best interest of the
employees.
Anthony Corrao, an ABS Clifton employee and president
of the Union, testified that prior to the negotiations the Union
had brought to management 's attention the fact that in-
creases in the cost of living had outrun the wage increases
provided in the collective -bargaining agreement. Corrao tes-
tified that Libhart was chief negotiator for both Monroe and
ABS. Further , Corrao stated that company representatives
did not offer to raise the wage rates to more competitive levels
nor did they offer certain fringe benefits which were granted
in October 1969 after the collective -bargaining agreement
expired . In all respects Corrao's testimony was corroborated
by Stewart 's notes of the 1967 meetings.
Stewart attributed the breakdown of the 1967 negotiations
to ABS Clifton 's unwillingness to grant economic improve-
ments to obtain separate contracts . Stewart stated that ABS
misled "the Union perhaps in the preliminary talks on the
basis that they would also be willing to grant economic im-
provements." Monroe's position , Stewart claimed, was that it
was willing to give wage increases and benefit improvements
to the Union to obtain a separation of the unit and its own
contract . Stewart explained that the minutes of the meetings
did not reflect Monroe's willingness to grant these improve-
ments "because those minutes were of the meeting to develop
the memorandum of understanding to enter into negotia-
tions." Because Monroe and ABS Clifton are separate com-
panies, with separate managements , although both are part of
Litton Industries , Monroe had no control over ABS in the
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations and it was ABS' position, over which Monroe
had no say, which led to the unsatisfactory results
Stewart's own notes of the meetings raise doubts as to the
accuracy of his testimony. Whatever Monroe's and ABS Clif-
ton's corporate relationship to each other may be, Stewart's
notes indicate they adopted a joint stance in the negotiations,
to the point of having Libhart represent them both 9 Stewart's
claim that the minutes could not reflect Monroe's willingness
to grant economic improvements because "the meeting [was]
to develop the memorandum of understanding" is rebuted on
two counts by the minutes of the meeting of November 6,
1967. First, the memorandum of understanding had been
"developed" and signed late in September and this meeting
was not for that purpose at all. Second, at the meeting of
November 6, Libhart, speaking for both Monroe and ABS
Clifton, stated in Stewart's words in the minutes, " . . the
companies are not financially in the position to grant the
economic concessions necessary to reach a mutually satisfac-
tory agreement " This, coming at a point in time after
Monroe was claimed by Stewart to have taken the "position
that it was willing to give wage increases and benefit improve-
ments to the Union" hardly supports Stewart's claim that
Monroe was willing in 1967 to raise the wage and benefit level
of the unit employees nor does it support Stewart's claim that
it was ABS Clifton alone which would not grant economic
improvements in the 1967 negotiations
5. The January-February 1969 negotiations
During 1968 ABS Clifton made unilateral wage adjust-
ments in certain job classifications found at Clifton but not
at Monroe ABS did not make any adjustments in job classifi-
cations common to ABS and Monroe
In January 1969 Monroe approached the Union with the
idea of making adjustments at Monroe comparable to those
made at ABS Clifton. Stewart testified that these wage adjust-
ments were to be made in the classifications common to
Monroe and ABS but would be effective only at Monroe
Corrao, the Union's president, testified that the negotia-
tions came about at Monroe's renewed request to separate the
unit employees at Monroe from those at ABS Clifton. The
Union proposed in these meetings that there be a guarantee
of transfer rights to the employees at Monroe and ABS Clif-
ton to permit them to transfer from one facility to the other
on the basis of seniority in the event of a layoff The Union
also asked for immediate negotiations for a new collective
agreement following execution of an agreement separating
the unit
As to wages, Corrao testified, the Union told Monroe that
for some of the skilled maintenance jobs an increase of $1 an
hour was needed to bring the wage level to the average paid
for the same jobs in the area " ° This position was based on a
survey the Union had conducted. When the Respondent re-
plied that it was in no position at that time to offer any
increases of that nature the Union pointed out that Monroe
was using an outside contractor to do the janitorial work and
with a raise in pay the Respondent could hire its own people
and do away with the subcontracting.
After the Union took the position that without a wage
increase it would not agree to splitting the unit the Company
proposed a 3-cent-per-hour increase across the board " After
further bargaining the parties agreed on a 10-cent-per-hour
Minutes of meeting of September 12, 1967
° Stewart testified that he could not recall the Union asking for a $1
increase, stating, "I don't remember it's too long ago "
" As to Corrao's testimony that Monroe's initial wage offer was 3 cents
per hour, Stewart commented, "I don't recall that I feel that was not
correct "
increase and the Union and Monroe worked out the list of
classifications to which the increase would be given with some
individual adjustments coming to 21 cents per hour but with
most as little as 9 cents, this figure being what was given the
janitors. The average increase was the agreed-upon amount
of 10 cents. Following agreement on the wage increase, on
February 18, 1969, the parties entered into a memorandum
of agreement separating the unit. This memorandum, to
which ABS Clifton was not a party, was executed by the
Union and Monroe was provided, inter alia:
1. Upon commencement of collective bargaining
negotiations to amend the present Agreement between
Monroe and the Union which was effective August 25,
1965 and which expires September 30, 1969, employees
represented by the Union at Monroe's Orange, N. J.
plant will be recognized as an appropriate unit for bar-
gaining and will be separate from the appropriate unit
for bargaining for employees who are represented by the
Union at the Automated Business Systems plant in Clif-
ton, N J
2 Negotiations to amend the aforesaid agreement which
expires September 30, 1969 between Monroe and the
Union will be separate and independent from negotia-
tions between the Union and A.B.S., Clifton, N. J.
3. If an impasse is reached in negotiations between
Monroe and the Union, the impasse will in no way inter-
fere with any negotiations being carried on by the Union
with A B S., Clifton, N.J. And an impasse in negotia-
tions between A.B.S., Clifton, N. J. and the Union will
in no way interfere with negotiations being carried on
between Monroe and the Union
4. Monroe employees participating in negotiations be-
tween Monroe and the Union will be compensated by
Monroe for such time lost from work as provided in
Article III of the Agreement Monroe will also compen-
sate the local Union President for such time lost from
work as provided in Article III of the Agreement. All
meetings for negotiations will be considered as "in
Plant" as referred to in Article III (3).
5 Any seniority rights of both A.B.S. Clifton, N. J
employees and Monroe employees provided by the
agreement effective August 25, 1965 which provides
transfer rights between the Monroe-Orange plant and
the A.B.S.-Clifton plant in the case of layoff for lack of
work, will be preserved and recognized up to and includ-
ing September 30, 1970 This provision shall be consid-
ered a part of any collective bargaining Agreement con-
cluded between Monroe and the Union.
Stewart explained that the 10-cent-per-hour increase was
approximately the amount of the adjustments ABS had made
in 1968 for the job classifications not found at Monroe. After
the first meeting in 1969 at which it was agreed to separate
the units, ABS did not participate in the sessions between
Monroe and the Union Further, Stewart testified, there was
no agreement between Monroe and ABS to limit the amount
of the increase granted by Monroe.
Stewart testified that in these negotiations Monroe "raised
the wages as much as we felt we could without presenting a
problem both to the union and ABS, because if we had raised
the wages to what you have termed a competitive level the
union would have objected because the same classification in
Clifton would not get this type of a raise." At another point
in Stewart's testimony the following exchange occurred.
Question (to Stewart): And the whole philosophy of
your approach here was to separate the Orange person-
nel from the Clifton personnel for bargaining purposes?
MONROE 527
Answer (by Stewart). That's correct
Question. So in looking at the wage structure of the
Orange people you didn't want to be tied in with the
Clifton people?
Answer- That is correct We weren't, because after we
made the adjustments, our people in the same classifica-
tions that exist in Clifton were making a different rate of
pay than the Clifton people.
At yet another point Stewart stated that Monroe was tied
to ABS until execution of the memorandum of understand-
ing.
Finally, Stewart testified that Monroe gave raises in Janu-
ary less than an amount necessary to bring wages to a com-
petitive level because "[t]he primary reason was the fact that
the adjustments that were granted were simply for the pur-
pose of getting a separation of the bargaining unit into two
contracts
"We also recognized the fact that in a very short period of
time we would be faced with the expiration of a four year old
contract and we would be faced with demands on the part of
the union to grant substantial wage increases in order to get
a new contract
"We weren't granting the adjustments in February to bring
the wages to a competitive level. We were granting them to
get the union to agree to separate the two units."
6. The 1969 wage survey
As it had done in 1967, in April 1969 Monroe prepared a
wage survey comparing the wages paid to unit personnel with
those paid for comparable classifications by other employers
in the northern New Jersey labor market. As in 1967 the wage
figures for competing employers were obtained from surveys
conducted by the Bureau of Labor Statistics for Newark and
Jersey City, the Employers Association of North Jersey, and
the same unnamed private surveying service.
In this survey Stewart incorporated suggested pay ranges
for each unit job classification, set forth the then effective rate
for the job at Monroe, and computed the percentage that the
current rate fell below the suggested job rate. Thus, the then
current job rate for janitors at Monroe" was $96 36 The
suggested starting rate for janitors was set at $93, the job rate
at $110, and for the janitor classification Stewart suggested a
merit rate of $126.50. On the basis of the then current
janitorial job rate, Stewart determined that Monroe was 14.2
percent below what he deemed to be the proper job rate for
that classification The results of Stewart's 1969 survey, omit-
ting the results of the three surveys utilized, follow:
" Incorporating the 9-cent -per-hour increase of February 1969
R E C O M M E N D E D
i IONROE % T ANROE
`SONROE AVG. RATE
QUALIFY- JOB MERIT EMPLOY HOURLY BELOW
JOB TITLE ING RATE RATE RATE EES RATE JOB RATE
I IAINTENANCE
CARPENTER 133.00 162.00 191.00 3 130.93 23.7
MAINTENANCE
PAINTER 121.00 147.00 171.50 4 127.00 15.7
MAINTENANCE
PLUMBER 127.00 154.00 181.00 1 129.60 18.8
MAINTENANCE
ELECTRICIAN 133.00 162.00 191.00 3 135.73 19.4
JANITOR 93.00 110.00 126.50 18 96.36 14.2
MATRON 81.00 95.00 105.00 1 136.40 2.4
I MAINTENANCE
.MACHINIST 1'27.00 154.00 181.00 1 136.41 12.9
MAINTENANCE
LABORER 101.00 121.00 139.50 4 103.2 17.2
PACKER SHIPPER 111.00 133.00 155.50 8 103.4 22.2
FIELD SERVICE
PARTS CLERI: 35.50 100.00 114.50 9 96.8 8.2
DRIVER 101.00 121.00 130.50 2 110.2 .01
FIELD SERVICE
STOCK MAN 101.00 121.00 130.50 0 103.2 17.8
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stewart testified that the survey material and information
from other employers in the area indicated that unit em-
ployees were well below competitive levels in respect to
benefits. Unit employees enjoyed only a basic health plan and
a very limited retirement plan Monroe's unit employees had
no sick leave and their vacation plan as well as the number
of holidays they received was below area standards. The in-
formation Monroe received disclosed that very few compa-
nies of any size in the area did not have major medical or
long-term disability plans
7. Midterm modification of the contract
The record contains evidence establishing a number of
instances of modifications of the terms of the collective-bar-
gaining agreement arranged by agreement of the parties
As earlier noted the Union agreed to Monroe going outside
the bargaining unit to retain the services of a subcontractor
to perform janitorial services On March 3, 1968, the Union
and Monroe executed a memorandum of understanding set-
ting forth their agreement on procedures for subcontracting
That memorandum provided
It is mutually agreed between Monroe International
(the company) located at Orange, New Jersey and Local
#432, I U E. (the union) that the company will notify
the union prior to any contracts being placed for work
in the Orange facility.
The company agrees that the present union employees
will not be affected by the sub-contracting of work for
the Orange facility
The company further agrees to contract work only
with contractors who utilize union employees to perform
the work.
The company and the union mutually agree that any
differences arising from this agreement will be resolved
under Article XIV and Article XVIII of the current
collective bargaining agreement.
ABS Clifton was not a party to this memorandum of un-
derstanding although it constituted a modification of the col-
lective-bargaining agreement to which ABS was a party.
Hamilton Stewart testified that Monroe had to approach
the Union when it wished to grant to the unit employees an
additional holiday which was being given to the approxi-
mately 600 unrepresented employees. This took place in 1969
when all employees at the Orange facility were given the day
off on the anniversary of Martin Luther King's assassination.
The same procedure was followed when a day off was given
to the employees in return for 100-percent participation in a
bond drive Stewart characterized this arrangement for the
day off as being in effect a supplemental agreement to the
collective-bargaining agreement ABS Clifton which was
party to the same collective-bargaining agreement did not
give a day off in connection with the bond campaign
Anthony Corrao, the Union's president, testified to a num-
ber of occasions when the Union and ABS Clifton negotiated
the upgrading of jobs at Clifton covered by the contract to
provide higher wages for the affected employees One such
upgrading involved a job in the maintenance classification, a
Although the job was upgraded with a raise in pay at Clifton,
the same job at Monroe was not affected.
8 The 1969 contract negotiations
Following execution of the memorandum of understanding
in February 1969, providing for separation of the Orange and
Clifton units, the Union asked for contract negotiations as
soon as possible. Hamilton Stewart testified that Respondent
replied it would open negotiations at a date earlier than re-
quired by the existing collective-bargaining agreement but
could not start the discussions immediately Stewart ex-
plained that there were only 60 employees in the unit at
Orange whereas Monroe employed some 3,000 persons
across the country and therefore Monroe had to establish its
own priorities for dealing with labor matters at its various
facilities
The first negotiating session was held in June 1969 This
was earlier than the date provided in the collective agreement.
Corrao testified that there were three sessions in all with
the Union's and Monroe's contract proposals presented and
discussed at the second meeting. This session lasted approxi-
mately 2 hours. The third and final session, on August 5,
lasted less than an hour and was devoted to a discussion of
the pending decertification petition and unfair labor practice
charges and ended with an agreement to break off negotia-
tions until the matters pending before the Board had been
disposed of
The only mention of economic matters at these three nego-
tiating meetings was a proposal by Monroe to eliminate from
the contract an incentive wage system contained in the old
collective agreement St John, Respondent's spokesman, ex-
plained that there was no production being carried on at
Orange, Respondent had no plans to resume production at
that facility, and therefore an incentive wage provision was
no longer appropriate. As well, Corrao testified, there was a
reference by Respondent to a desire on its part to meet com-
petitive wage levels However, St. John stated that Monroe
did not have a wage survey at that time and was not prepared
to discuss wages." Corrao testified that there was no discus-
sion during the three meetings of possible application to the
Monroe employees of the general benefits which Litton In-
dustries gave to its employees
Stewart first testified that there were nine meetings between
the Union and Monroe during June, July, and August Later
Stewart stated that he could not recall how many meetings
were held Several of these meetings were devoted to develop-
ment of ground rules for conduct of the negotiations after
which the parties exchanged their demands sometime in July
Neither set of contract demands contained proposals with
respect to economic improvements Stewart testified that he
"would say exactly" that management knew in June what its
final contract package proposal would be having formulated
its position prior to the first negotiating session with the
Union. With minor modifications the improvements unilater-
ally granted by Monroe in October 1969 represented the final
offer planned by Monroe for presentation to the Union in the
contract negotiations However, Stewart testified, the
classification common to ABS Clifton and Monroe Orange. " The 1969 wage survey is dated April 1969
MONROE
negotiations never reached the stage where the Respondent's
final position could be stated to the Union.
9. The decertification petition and unfair
labor practice charges
Set forth below in chronological order is the tortuous path
by which the decertification petition filed on July 11, 1969,
finally came to an election on November 13 of that year:
July 11, 1969-Thomas Doyle, Sr., filed his petition for
decertification election in the unit set out in the contract.
(Case 22-RD-268.) Monroe was advised of the filing by
the Regional Office that same day.
July 17, 1969-Notice of Representation Hearing was
mailed by the Regional Office setting the hearing for July
28.
July 25, 1969-Regional Office advised Respondent that
Doyle had filed a charge of unfair labor practice against
it (Case 22-CA-3363) alleging that Monroe had unlaw-
fully dominated and interfered with the operation and
administration of the Union in violation of Section
8(a)(1) and (2) of the Act.
July 25, 1969-The Regional Office postponed indefi-
nitely the hearing on the decertification petition
August 4, 1969-The Regional Office advised the parties
that Doyle had filed a charge of unfair labor practice
against the Union (Case 22-CB-1536) alleging that the
Union had unlawfully requested and Respondent had
unlawfully afforded recognition to the Union despite the
existence of a question concerning representation
August 29, 1969-The Regional Office advised Doyle
that it was refusing to issue complaint based on either of
his charges.
September 5, 1969-The Regional Office issued an order
setting the representation hearing on the decertification
petition for September 11.
September 8, 1969-Norman Bruck, an attorney repre-
senting Doyle, requested an extension of time from the
Office of Appeals of the General Counsel of the Board
for the purpose of appealing from the Regional Direc-
tor's dismissal of Doyle's charges against Respondent
and the Union.
September 10, 1969-The Regional Office postponed the
date for the representation hearing to September 23,
1969. Postponement was granted at the request of coun-
sel for the Petitioner. Counsel for the Respondent did
not object to the postponement. Counsel for the Union
did object
September 10, 1969-Bruck wrote to the Office of Ap-
peals confirming the fact that he had been granted a
10-day extension for the purpose of filing his appeal.
September 11, 1969-The Office of Appeals by telegram
to Bruck confirmed his extension of time.
September 17, 1969-Bruck wrote to the Regional Di-
rector requesting that the representation hearing be post-
poned from September 23.
September 18, 1969-The Regional Director denied
Bruck's request for postponement of the representation
hearing
September 19, 1969-Bruck filed with the Office of Ap-
peals in Washington, D C, his appeal from the Regional
Director's dismissal of Doyle's charges.
September 23, 1969-Representation hearing held in
Case 22-RD-268. At the hearing counsel for the Peti-
tioner asked that the hearing be held open pending deter-
mination of his appeal from the Regional Director's dis-
missal of Doyle's charges. This motion was denied
Thereafter counsel for Monroe joined in Petitioner's mo-
tion to hold in abeyance the Decision and Direction of
529
Election until Bruck's appeal had been acted upon. This
motion was referred to the Regional Director for ruling.
September 24, 1969-Counsel for the Union filed with
the Office of Appeals an opposition to Bruck's appeal.
September 25, 1969-The Regional Office advised the
parties that Doyle had filed a charge of unfair labor
practice against the Union (Case 22-CB-1567) alleging
that the Union had attempted to restrain and coerce
Doyle by authorizing and threatening to conduct mass
picketing at his home.
September 30, 1969-Bruck petitioned the Regional
Office to reopen the hearing in Case 22-RD-268 In his
brief supporting this petition Bruck stated that "The
record does not reflect the fact that Petitioner has reason
to believe that approximately 20% of the bargaining unit
is composed of craftsmen with no community of interest
with the balance of the unit. In addition, Petitioner him-
self, is a chauffeur to executive personnel and feels that
he has no community of interest with the rest of the
bargaining unit and therefore should be excluded there-
from."
September 30, 1969-The collective-bargaining agree-
ment between Monroe and the Union expired.
October 10, 1969-The Regional Director issued an Or-
der Remanding Proceeding For Further Hearing in Case
22-RD-268 and set October 17 as the date for the re-
opened hearing.
October 10, 1969-The Regional Director advised
Bruck that he was refusing to issue complaint based
upon Doyle's second charge against the Union (Case
22-CB-1567)
October 10, 1969-The Office of Appeals advised Bruck
that his appeal from the dismissal of Doyle's charge
against Monroe and his first charge against the Union
had been denied.
October 14, 1969-The Regional Director postponed the
reopened hearing in Case 22-RD-268 until October 24
at the request of Monroe's counsel. Counsel for Doyle,
the Petitioner, did not object to the postponement
Counsel for the Union objected.
October 22, 1969-All parties entered into a Stipulation
for Certification Upon Consent Election providing for an
election to be held in the unit hereinabove found to be
an appropriate one for the purposes of collective bar-
gaining.
Novermber 13, 1969-The election was held resulting in
22 votes being cast for retention of the Union as bargain-
ing representative and 36 votes against the Union
November 20, 1969-The Union filed objections to con-
duct affecting the results of the election.
January 5, 1970-The Acting Regional Director issued
a Report On Objections finding that "the objections
raised substantial and material issues with respect to
conduct affecting the results of the election" and recom-
mending that the election be set aside and a new election
be held
January 22, 1970-Monroe filed with the Board in
Washington Exceptions To Report On Objections
March 11, 1970-The Board issued its Order Directing
Hearing on the Union's objections and directing that
said hearing be consolidated with the hearing in Case
22-CA-4001.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D The Employee Interviews of October 13, 1969,
and the Grant of Benefits
Beginning at 8 a.m. on Monday, October 13, 1969, each
employee in the unit was called to the personnel conference
room at the Orange facility in order of seniority to a meeting
with Hamilton Stewart, Monroe's manager of employee com-
pensation, the employee's immediate supervisor, and that
supervisor's supervisor The same format was followed in
each such interview with Stewart following a written outline
he had prepared
These interviews were conducted pursuant to a manage-
ment decision made the previous week at a meeting attended
by Stewart and St. John among others, at which it was de-
cided to go ahead and grant wage increases and install certain
benefits because Monroe could not see any prospect of im-
mediate resolution of the various matters pending before the
Board, including the decertification petition and a possible
reopening of the hearing therein as well as the unfair labor
practice charges The Union was not given notification of
Monroe's intent to hold these interviews and to grant eco-
nomic improvements to the unit employees. The three union
officers employed by Monroe were among the first employees
interviewed. Therefore, Stewart testified, Respondent "didn't
feel it necessary to notify the Union officially" of the action
it was taking
At each interview the first thing told the employee was that
on advice of legal counsel Respondent was discontinuing
withholding union dues from the pay of the employees.
The employees were then told that because of the uncer-
tainty of the legal situation facing Respondent Monroe
planned to go ahead and make certain changes in the em-
ployees' conditions of employment The changes would be
explained and any questions the employees might have would
be answered
The first such change was a switch in the time of wage
payment from a weekly to a biweekly period. This change was
to take place 1 month from the date of the employee inter-
view Next, the employees were told that they would no
longer use a timeclock to record their time and instead would
henceforth fill out a weekly timesheet like all other Monroe
employees and would be on their honor to accurately report
when they arrived and when they left
The employees were then told that because of economic
conditions Respondent did not think it fair that they be penal-
ized because of the current legal entanglements and that
Monroe was going to grant them an 8-percent wage increase
Each employee was told what the increase would be for his
individual classification and the effective date of the raise.
Then the employees were told what the Company's policy
would be for the vacation year beginning June 1, 1970, and
how each would be treated in regard to his vacation eligibil-
ity.
Stewart then told the employees "that we are going to offer
them on a contributory basis certain benefits they had not
received under the collective bargaining agreement." Each
employee was given a set of booklets explaining each of the
benefit programs and a set of enrollment cards and was told
to read the booklets and that there would be a meeting later
in the week at which Respondent's benefits manager would
answer any questions regarding the benefits programs. The
employees were told that the benefit plans were contributory
and that it was optional on the part of each employee as to
whether he enrolled in any or all of the plans '° Each of the
booklets explaining the benefit plans states that the program
is available to eligible employees of Litton Industries Under
the "General Information" section of the booklet explaining
the Additional Basic Life Insurance program appears the
following.
WHO MAY ENROLL
All full-time employees who are not covered under a
Collective Bargaining Agreement, unless such agree-
ment specifically provides for participation in the plan,
are eligible to enroll
Each of the booklets distributed to the employees during
these interviews contained a similar limitation.
Stewart testified that "[w]e explained the company sick
leave plan that is available to all employees at Orange except
those who were covered under the collective bargaining
agreement, and we advised each employee that they would
now be covered under the sick leave plan." The details of the
sick leave plan under which an employee may accrue 10 days
of paid sick leave per year up to a maximum of 65 days were
explained and each employee was told how much accrued
sick leave he was then entitled to based upon his length of
service.
Stewart testified that "the explanation was given the em-
ployees that in order to maintain competitive rates of pay and
competitive benefit levels this was the purpose of granting this
increase and these benefits." Stewart further explained "that
the employees of that particular group of employees had
become accustomed to receiving an increase and benefit im-
provements at that period of time, at the expiration of the
contract "
Finally the employees were told that Monroe would con-
sider each employee's job performance and that his future
salary would be determined by the merit system. Stewart
explained that Monroe's philosophy of determining an em-
ployee's salary was based on paying a fair and competitive
rate of pay and was based on the merit system; i.e., on how
each employee performed on the job to which he was as-
signed.
Stewart testified that quite a few of the employees asked
questions. Two or three asked what would happen if an elec-
tion was held and the Union won In answer Stewart stated
that if the Union won a "fair election" Monroe would negoti-
ate in good faith from the position at the start of the negotia-
tions Stewart denied having said that the benefits then being
granted would be taken away if the Union won an election
Accepted Rejected
Additional life
insurance 27 34
Supplemental life
insurance 18 43
Major medical
insurance 60 1
Salary continua-
tion plan 49 12
Improved retire-
ment benefits 51 10
'° As to each of the benefit plans the unit employees exercise their right
to enroll in the following numbers
MONROE
Stewart testified that at the time the interviews were started
Bruck's appeal from the dismissal of Doyle's first two charges
was pending in the Office of Appeals in Washington and the
Regional Office had not disposed of Doyle's second charge
against the Union. The notice from the Regional Office stat-
ing that it was refusing to issue complaint based on Doyle's
second charge against the Union was received by Monroe at
or about 11 a.m. on October 13 after about 10 interviews had
been conducted. The letter from the Office of Appeals advis-
ing that Bruck's appeal from the dismissal of the first two
charges had been denied was received by Monroe at or about
the same time on October 14, after some 35 to 40 of the total
of 60 interviews had been held.
E. McMahon's Letter to the Employees
On October 31, 1969, as part of Monroe's campaign to
defeat the Union in the upcoming decertification election,
Respondent's president, Donald A. McMahon, sent a letter
to all unit employees reading:
I appreciated the opportunity to meet and talk with you
on October 30th. It is my sincere hope that I was able
to communicate to you your company's feeling about
each employee, and also how I personally feel about
every member of the Monroe team.
We are dedicated to the principle of the dignity of each
individual, and I feel very strongly that each employee
should share in our programs of increased wages, better
fringe benefits and pension plans. This will be possible if
we have no union.
Seniority and job security are two items that we believe
in and practice , union or no union. Because we are not
a manufacturing company in Orange, we do not have
production increases or decreases that result in layoffs.
We value you as an employee, and I know that you will
vote the way you feel is best.
Hamilton Stewart testified that McMahon's letter of Octo-
ber 31 was written in response to union leaflets of October 27
and 30. The full text of those documents is set forth below.
October 27, 1969
Dear Member:
On November 13, 1969, the National Labor Relations
Board will conduct an election in the cafeteria of our
plant.
For the first time in 30 years, the security and progress
we have enjoyed have been put in jeopardy by a few
individuals who are doing the company's bidding.
As you all know by now, the N L.R.B. has dismissed
all of the charges filed by Doyle.
It was easy to see the close relations that existed dur-
ing the N.L.R.B. hearings, between Doyle and the com-
pany. After months of unnecessary delays by Doyle and
Monroe, the election was finally set for November 13th.
LOCAL 432 DELIVERS
The wage increase put into effect by the company is
far below what IUE Local 432 has won in the Clifton
plant. For example, wages were increased by the union
at Clifton by 11% in the first year and an additional
8.5% in the second year.
These raises-guaranteed by contract-amount to 47
cents per hour in exactly 18 months. Certain jobs like the
maintenance men will go up 53 cents an hour.
In addition, the union has been able to put all jobs on
automatic progression including the skilled tool makers.
At Monroe, on the other hand, the company has put
all of the people on merit instead of automatic progres-
sion, so instead of going forward at this plant as we are
531
doing in Clifton, the company feels free to turn back the
clock.
Another step backwards, the company has now
changed weekly payroll to a bi-weekly basis, a definite
saving to Monroe, but a great hardship to the workers.
OTHER BENEFITS WON BY LOCAL 432
In addition to the wage increases and automatic
progression mentioned above, Local 432 at the Clifton
plant negotiated a fifth week vacation for all members
over 24 years and 10 months of service. The Monroe
Company has made it clear that there will be no im-
provements in vacation.
This would deprive 30 Monroe employees of a fifth
week vacation, except that after IUE wins the election,
we will move to get this important vacation improve-
ment as well as four weeks for 19 years and 10 months
service, into the contract-the same as in Clifton.
The company has also made it clear that there will be
no improvements in holidays. Contrast this with the
additional holiday, the day after Thanksgiving, which
Local 432 members will enjoy this November 28 at Clif-
ton
Very important also, Local 432 was able to negotiate
a new severance clause granting severance pay up to five
weeks, a benefit which the Monroe workers will not
enjoy until Local 432 IUE wins the election.
These facts prove that Monroe workers need the IUE
Local 432 more than ever before. They need union pro-
tection to safeguard their seniority and to make sure that
they're not laid off or fired without union representation.
The company will undoubtedly make all sorts of
promises to the Monroe workers in order to try and
defeat the union, but if there ever was a plant that needed
Local 432 IUE to win the benefits we have proved we can
win and to protect your service and your jobs, this is the
plant where the need is the greatest.
Fraternally,
Local 432 IUE-AFL-CIO
[Signatures omitted.]
REMEMBER: Ony when wages and benefits are spelled
out in a signed union contract are they guaranteed.
30 October 1969
Dear Member:
On Thursday, November 13, you will be voting in an
election that will be one of the most important votes you
will ever cast.
We are very concerned with our years of service
(many of us with much greater than 20 yrs) to this
company.
We raise the following questions:
What will happen without a Union Contract if the
company just decides to lay-off the workers without re-
gard to seniority? (You know what happened to many of
the senior workers in the Salaried Group without a Un-
ion Contract in the past).
What will happen if the company decides through
some phony efficiency program to speed up the work and
get nd of what they would term the dead wood?
What will happen to the workers if some disagreement
takes place on their job?
What will happen to the workers if the company just
decides to lower the pay rates or reduce the benefits or
for that matter, change any conditions that affect us in
any way?
The answers to the above questions are easy-without
a Union Contract, the company can do as it pleases.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is why we believe it is important to us to work
under a Union Contract to provide the protection
against these things happening.
Yes, under a Union Contract, the Wages and Benefits
will be clearly spelled out and above all, our seniority
will be protected and this, we believe, is one of the most
important reasons for the Union.
Isn't it strange, now after all these years of fighting
and struggling so hard with this company, to gain what
we have, that now all of a sudden, the company is treat-
ing us kindly and making Pie in the Sky promises to us.
It is no secret to us that these tactics are being used
to attempt to have us lulled to sleep and give up our most
treasured possession-A Union Contract that protects
our livelihood.
Vote for Local 432 IUE-AFL-CIO and continue to
work with dignity, protection, and above all security!!!
Fraternally,
Local 432 IUE-AFL-CIO
[Signatures omitted ]
REMEMBER: Only when wages and benefits are
spelled out in a signed union contract are they guaran-
teed!!
F. Conclusions and Findings
In Tennessee Handbags, Inc., 179 NLRB No. 161, the
Board stated:
It is well established that Section 8(a)(1) prohibits con-
duct by an employer "immediately favorable to em-
ployees undertaken with the express purpose of imping-
ing upon their freedom of choice for or against
unionization and is reasonably calculated to have that
effect."5
There can be no doubt that the wage increase and certain
of the benefits granted by Respondent during the October
1969 interviews with the employees were "immediately favor-
able" to them. The 8-percent wage increase was retroactive
to October 6, 1969, and as noted in the stipulation of the
parties set forth in this Decision, ranged from 19 cents to
29-% cents per hour. The sick leave plan with maximum
accrual of 65 days of sick leave was put into effect with credit
given for past service. Additionally, certain of the contribu-
tory plans had retroactive features. Thus, the major medical
plan provided for payment of expenses incurred after enroll-
ment due to injury or illness suffered prior to such enrollment
but after January 1, 1969. Under this provision employee
Ramella was able to collect some $750 from the insurance
carrier for medical bills incurred by his wife during the year
1969 for a condition which preexisted the date of his enroll-
ment in the major medical plan.
However, "[u]nder the circumstances of this case," I am
constrained to find "that General Counsel has [not] estab-
lished, by a preponderance of the evidence, that Respondent
granted and announced the benefits for the purpose of caus-
ing the employeees to reject the Union." Tennessee Hand-
bags, Inc., supra. As in Tennessee Handbags the Respondent,
although faced with the possibility of an election, did not
know when, if ever, it would be held. Although Monroe did
not protest Doyle's tactics which frustrated expeditious pro-
cessing of the petition and was itself responsible for some of
the delays, there is no allegation or evidence linking Respond-
ent to the decertification petition. The representation hearing
had been held but the Petitioner's motion to reopen the hear-
ing had been granted by the Regional Director and the
resumed hearing was scheduled for October 17 Moreover,
the position stated by the Petitioner, questioning his own
inclusion in the unit, was such as to raise reasonable doubts
that an elections would be conducted based upon his petition
Further, as in Tennessee Handbags, there is evidence of
only one possible unfair labor practice committed by Re-
spondent during the period in question, that being the state-
ment in McMahon's letter of October 31:
We are dedicated to the principle of the dignity of each
individual, and I feel very strongly that each employee
should share in our programs of increased wages, better
fringe benefits and pension plans. This will be possible if
we have no union.
In the context of the bitterly waged election campaign I
find that this statement did not exceed the permissible bounds
of campaign rhetoric and shall recommend dismissal of this
allegation of the complaint Moreover, this statement must be
viewed in light of Stewart's unrebutted testimony that, when
he was asked during the course of the October interviews
what effect a union election victory would have, he replied
that in such an event Monroe would negotiate from the posi-
tion at the start of such negotiations.
Without restating the evidence hereinabove set forth detail-
ing the economic justification for large wage increases to and
improved benefit programs for the unit employees to enable
Respondent to recruit and retain employees in the job classifi-
cations included in the unit, I conclude that such justification
did in fact exist Monroe's failure to grant such increases
during the 1967 and January-February 1969 negotiations "is
not of itself sufficient to overcome a demonstrated substantial
business purpose for a particular act " NL.R.B. v. Gotham
Industries, Inc., 406 F 2d 1306, 1313 (C A. 1). While his own
notes indicate that Stewart was not entirely candid in his
claim that Monroe was prepared to grant increases during the
1967 negotiations there is no evidence to rebut his claim that
ABS Clifton retained veto power over any desire that Re-
spondent might have had to grant increases at that time. As
to Monroe's failure to give more than a 10-cent increase as
the price of obtaining severance of the units in 1969, I find
convincing Stewart's explanation that Respondent held back
at that time from raising wages by an amount its own wage
surveys indicated was necessary to bring its employees' com-
pensation up to competitive levels because Monroe was look-
ing ahead to the negotiations which would be held in a few
months to obtain a new collective-bargaining agreement and
Monroe's expectation that during those negotiations the Un-
ion would demand and expect large increases. Accordingly,
I shall recommend dismissal of the complaint.
IV REPORT ON OBJECTIONS
As previously noted, the Board, having found that certain
of the Union's objections to the election raised substantially
the same issues as were raised by the allegations of the Com-
plaint herein consolidated the representation and complaint
proceedings for the purpose of hearing, findings of fact, and
recommendations to the Board as to the disposition of said
objections Having found that the Respondent in the period
prior to the election did not interfere with, restrain, or coerce
its employees in violation of Section 8(a)(1) of the Act, I
recommend that the Board dismiss the Union's objections to
the election and that it certify the results thereof.
RECOMMENDED ORDER
NL R B. v Exchange Parts Co, 375 U s 405, 409 It is recommended that the Complaint herein be dismissed.
APPENDIX A
PROPOSED PRESENT RATE RANGE a/
SURVEYS-WEIGHTED AVERAGES
NO. OF
JOB TITLE CLASS CLASS I CLASS III CLASS I EMP . c/ 11IN . MEAN MAX.
MATRON-ELEVATOR OPERATOR 2.15 2.10 2.05 641 2 . 2 2.4 2.60
PLANT ATTENDANT b/
A2.26 2 . 21 2.16 391 2.2 2.4 2.64
FIELD SERVICE ORDER FILLER
J.26 2.21 2.16 217 2.3 2.4 2.57
MAINTENANCE LABORER-YARDMAD
J2.42 2 . 37 2.32 678 2 . 2 2.6 2.88
FIELD SERVICE STOCK MAN
2.42 2.37 2 . 32 195 2 . 41 2.6 2.84
SHIPPER-RECEIVER
2.42 2 . 37 2.32 2841 2.3 2.5 2.69
DRIVER
2.82 2.76 2.71 227 3 . 0 3.5 4.05
MAINTENANCE TRADES HELPER
607 2.5 2.7 2.83
MAINTENANCE PAINTER
2.955 2.875 2.805 335 304 3.4 3.74
MAINTENANCE PLUMBER
3.005 2.945 2.895 2 . 835 684 3.1 3.5 3.55
MAINTENANCE UTILITY MAN
3.015 2 . 995 2 . 905 2 . 845 771 2.9 3.2 3.37
MAINTENANCE CARPENTER
3.045 2 . 955 2.935 2.875 604 3 . 1 3.5 3.76
MAINTENANCE ELECTRICIAN
3.115 3 . 045 2 . 965 2 . 905 175 3.2 3.61 3.75
MAINTENANCE MACHINIST
J3.115 3.045 2.965 2.905 411 3 . 2 3.5 3.74
a/ The collective-bargaining agreement provided for progression within each job
classification to the maximum contract rate for the job over a stated period of time.
b/ Janitor
c/ Total number of employees emcompassed in three surveys utilized by Stewart within each
classification.